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Lord Kingsland: The proceedings so far this morning have flowed—dare I say it?—mellifluously, with an agreeable measure of pragmatism and flexibility being demonstrated on both sides of the Committee. However, I am bound to say that I find the Minister's reaction to Amendment No. 380 in sharp distinction to what has taken place so far. He is of course right to say that circumstances can arise when, after a bankruptcy order has been discharged, it can nevertheless go on to be annulled where either an order was not an order in the first place or where the bankrupt had fully discharged all the debts that he owed.

However, the more likely set of circumstances are those that I put to the Minister in my opening speech. The noble Lord made it absolutely clear that he cannot accept them. In those circumstances, I feel compelled to test the opinion of the Committee.

12.58 p.m.

On Question, Whether the said amendment (No. 380) shall be agreed to?

Their Lordships divided: Contents, 53; Not-Contents, 102.

Division No. 1

CONTENTS

Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Blatch, B.
Brabazon of Tara, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Campbell of Alloway, L.
Carnegy of Lour, B.
Chalfont, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Craigavon, V.
Crathorne, L.
Elton, L.
Fookes, B.
Forsyth of Drumlean, L.
Freeman, L.
Geddes, L.
Glenarthur, L.
Glentoran, L.
Hayhoe, L.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Kingsland, L.
Lawson of Blaby, L.
Luke, L.
Marlesford, L.
Miller of Hendon, B.
Molyneaux of Killead, L.
Monson, L.
Montagu of Beaulieu, L.
Montrose, D.
Murton of Lindisfarne, L.
Newton of Braintree, L.
Noakes, B.
Norton of Louth, L.
Palmer, L.
Park of Monmouth, B.
Pearson of Rannoch, L.
Perry of Southwark, B.
Renton, L.
St John of Fawsley, L.
Seccombe, B. [Teller]
Sharples, B.
Skelmersdale, L.
Tebbit, L.
Trumpington, B.
Vivian, L.
Wilcox, B.
Windlesham, L.

NOT-CONTENTS

Acton, L.
Addington, L.
Ahmed, L.
Andrews, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Blackstone, B.
Borrie, L.
Brett, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Dholakia, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Elis-Thomas, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Ezra, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fitt, L.
Geraint, L.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grenfell, L.
Grocott, L. [Teller]
Hardy of Wath, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hooson, L.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Irvine of Lairg, L. (Lord Chancellor)
King of West Bromwich, L.
Lester of Herne Hill, L.
Lipsey, L.
Lockwood, B.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Merlyn-Rees, L.
Morgan, L.
Morris of Manchester, L.
Nicol, B.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rennard, L.
Richard, L.
Roper, L.
Russell, E.
Sainsbury of Turville, L.
Sandberg, L.
Scotland of Asthal, B.
Sharp of Guildford, B.
Simon, V.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thomas of Walliswood, B.
Tope, L.
Turner of Camden, B.
Walker of Doncaster, L.
Walmsley, B.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Williams of Mostyn, L. (Lord Privy Seal)
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

30 Jul 2002 : Column 841

1.8 p.m.

[Amendments Nos. 381 to 386 not moved.]

Schedule 22 agreed to.

Clauses 261 to 265 agreed to.

30 Jul 2002 : Column 842

Schedule 23 agreed to.

Clauses 266 to 268 agreed to.

[Amendment No. 387 not moved.]

Clauses 269 to 272 agreed to.

Schedule 24 [Transitional and transitory provisions and savings]:

Lord Sainsbury of Turville moved Amendment No. 387A:


    Page 322, line 23, at end insert—

"Merger references

12A (1) Subject to paragraphs 12C to 12F, the old law shall continue to apply where—
(a) two or more enterprises have ceased to be distinct enterprises (within the meaning of Part 5 of the 1973 Act); and
(b) the cessation has occurred before the appointed day.
(2) Subject to sub-paragraphs (3), (4) and (5) and paragraphs 12C to 12F, the old law shall continue to apply in relation to any relevant arrangements which were in progress or in contemplation before the appointed day and are in progress or in contemplation on that day and (if events so require) the actual results of those arrangements where, before the appointed day—
(a) a merger notice was given, and not rejected under section 75B(7) of the 1973 Act or withdrawn, in relation to the arrangements;
(b) no merger notice was so given but, in relation to the arrangements—
(i) a reference was made under section 75 of the 1973 Act;
(ii) undertakings were accepted under section 75G of that Act; or
(iii) a decision was made by the Secretary of State neither to make a reference under section 75 of that Act nor to accept undertakings under section 75G of that Act; or
(c) a merger notice was so given, was rejected under section 75B(7) of the 1973 Act or withdrawn, paragraph (a) does not apply in relation to a different merger notice given in relation to the arrangements and, in relation to the arrangements, paragraph (b)(i), (ii) or (iii) applies.
(3) Subject to sub-paragraph (8), the new law shall, in a case of the kind mentioned in sub-paragraph (2)(a), apply in relation to any relevant arrangements and (if events so require) the actual results of those arrangements if, on or after the appointed day, a merger notice is rejected under section 75B(7) of the 1973 Act or withdrawn in relation to the arrangements.
(4) Subject to sub-paragraph (8), the new law shall, in a case of the kind mentioned in sub-paragraph (2)(a), apply in relation to any relevant arrangements and (if events so require) the actual results of those arrangements if—
(a) the making of a reference under section 64 or 75 of the 1973 Act in relation to those arrangements and (if events so require) the actual results of those arrangements was, immediately before the appointed day and by virtue of section 75C(1)(c), (e) or (g) of that Act, not prevented;
(b) the period for considering the merger notice has expired (whether before, on or after the appointed day); and
(c) no reference has been made under section 64 or 75 of the 1973 Act and no undertakings have been accepted under section 75G of that Act.

30 Jul 2002 : Column 843


(5) Subject to sub-paragraph (8), the new law shall, in a case of the kind mentioned in sub-paragraph (2)(a), apply in relation to any relevant arrangements and (if events so require) the actual results of those arrangements if—
(a) the making of a reference under section 64 or 75 of the 1973 Act in relation to those arrangements and (if events so require) the actual results of those arrangements becomes, on or after the appointed day and by virtue of section 75C(1)(b), (c), (d), (e) or (g) of that Act, not prevented;
(b) the period for considering the merger notice has expired (whether before, on or after the appointed day); and
(c) no reference has been made under section 64 or 75 of the 1973 Act and no undertakings have been accepted under section 75G of that Act.
(6) Subject to sub-paragraph (8), the new law shall apply in relation to relevant arrangements and (if events so require) the actual results of those arrangements if—
(a) the arrangements were in progress or in contemplation before the appointed day and are in progress or in contemplation on that day;
(b) before the appointed day and in relation to the arrangements—
(i) no reference was made under section 75 of the 1973 Act;
(ii) no undertakings were accepted under section 75G of that Act; and
(iii) a decision neither to make a reference under section 75 of that Act nor to accept undertakings under section 75G of that Act was not made by the Secretary of State; and
(c) no merger notice was given to the Director or the OFT before that day in relation to the arrangements.
(7) Subject to sub-paragraph (8), the new law shall, in a case of the kind mentioned in sub-paragraph (2)(c) (excluding the words from "and" to the end), apply in relation to any relevant arrangements and (if events so require) the actual results of those arrangements if, in relation to the arrangements, sub-paragraph (2)(b)(i), (ii) and (iii) do not apply.
(8) Subject to paragraphs 12C to 12F, the old law shall continue to apply in relation to concentrations with a Community dimension (within the meaning of the European Merger Regulations) notified before the appointed day to the European Commission under article 4 of those Regulations.
(9) In this paragraph references to relevant arrangements which are in progress or in contemplation on the appointed day include references to the actual results of those arrangements if the arrangements were in progress or in contemplation immediately before the appointed day and have, at the beginning of the appointed day, resulted in two or more enterprises ceasing to be distinct enterprises (within the meaning of Part 5 of the 1973 Act).
(10) In this paragraph—
"the European Merger Regulations" has the meaning given by section 124(1);
"merger notice" means a notice under section 75A(1) of the 1973 Act;
"the new law" means Part 3 of this Act and any related provision of law (including, in particular, any modification made under section 272(2) to that Part or any such provision);
"the old law" means sections 64 to 75K of the 1973 Act and any related provision of law (including, in particular, any modification made under section 272(2) to those sections or any such provision); and
"relevant arrangements" means arrangements which might result in two or more enterprises ceasing to be distinct enterprises (within the meaning of Part 5 of the 1973 Act).

30 Jul 2002 : Column 844

Monopoly references

12B (1) Subject to paragraphs 12C to 12F, the old law shall continue to apply in relation to any monopoly reference made before the appointed day under section 50 or 51 of the 1973 Act.
(2) No person has to comply on or after the appointed day with a requirement imposed before that day under section 44 of the 1973 Act.
(3) In this paragraph—
"monopoly reference" has the meaning given by section 5(3) of the 1973 Act; and
"the old law" means Part 4 of the 1973 Act and any related provision of law (including, in particular, any modification made under section 272(2) to that Part or any such provision).
Enforcement undertakings and orders

12C (1) Section 91(1) to (6) shall apply in relation to any undertaking—
(a) accepted (whether before, on or after the appointed day) by a Minister of the Crown—
(i) in pursuance of a proposal under section 56A of the 1973 Act; or
(ii) under section 56F, 75G or 88 of that Act; and
(b) of a description specified in an order made by the Secretary of State under this paragraph;
as it applies in relation to enforcement undertakings under Part 3.
(2) Section 91(1) to (6) shall apply in relation to any order made by a Minister of the Crown under section 56, 73, 74, 75K or 89 of the 1973 Act (whether before, on or after the appointed day) and of a description specified in an order made by the Secretary of State under this paragraph as it applies in relation to enforcement orders under Part 3.
(3) Compliance with—
(a) an undertaking accepted by a Minister of the Crown under section 88 of the 1973 Act (whether before, on or after the appointed day) and of a description specified in an order made by the Secretary of State under this paragraph; or
(b) an order made by a Minister of the Crown under section 56, 73, 74 or 89 of the 1973 Act (whether before, on or after the appointed day) and of a description specified in an order made by the Secretary of State under this paragraph;
shall also be enforceable by civil proceedings brought by the Commission for an injunction or for interdict or for any other appropriate relief or remedy.
(4) Sub-paragraph (3) and section 91(6) as applied by virtue of sub-paragraph (1) or (2) shall not prejudice any right that a person may have by virtue of section 91(4) as so applied to bring civil proceedings for contravention or apprehended contravention of an undertaking or order.
(5) Sections 93 and 93A of the 1973 Act shall accordingly cease to apply in relation to undertakings and orders to which sub-paragraphs (1) to (3) above apply.
12D (1) Sub-paragraph (2) applies to any undertaking—
(a) accepted (whether before, on or after the appointed day) by a Minister of the Crown—
(i) in pursuance of a proposal under section 56A of the 1973 Act; or
(ii) under section 56F, 75G or 88 of that Act; and
(b) of a description specified in an order made by the Secretary of State under this paragraph.

30 Jul 2002 : Column 845


(2) An undertaking to which this sub-paragraph applies may be—
(a) superseded by a new undertaking accepted by the relevant authority under this paragraph;
(b) varied by an undertaking accepted by the relevant authority under this paragraph; or
(c) released by the relevant authority.
(3) Subject to sub-paragraph (4) and any provision made under section 272(2), the power of the relevant authority under this paragraph to supersede, vary or release an undertaking is exercisable in the same circumstances, and on the same terms and conditions, as the power of the Minister concerned to supersede, vary or release the undertaking would be exercisable under the 1973 Act.
(4) The duty under section 75J(b) of the 1973 Act to give advice shall be a duty of the OFT to consider what action (if any) it should take.
(5) Where the relevant authority has the power by virtue of this paragraph to supersede, vary or release an undertaking accepted by a Minister of the Crown—
(a) in pursuance of a proposal under section 56A of the 1973 Act; or
(b) under section 56F, 75G or 88 of that Act;
the Minister concerned shall accordingly cease to have the power under that Act to supersede, vary or release the undertaking.
(6) In this paragraph "the relevant authority" means—
(a) in the case of an undertaking accepted in pursuance of a proposal under section 56A of the 1973 Act or an undertaking under section 56F or 75G of that Act, the OFT; and
(b) in the case of an undertaking accepted under section 88 of that Act, the Commission.
12E (1) Any order made by a Minister of the Crown under section 56, 73, 74 or 89 of the 1973 Act (whether before, on or after the appointed day) and of a description specified in an order made by the Secretary of State under this paragraph may be varied or revoked by an order made by the Commission under this paragraph.
(2) Any order made by a Minister of the Crown under section 75K of the 1973 Act (whether before, on or after the appointed day) and of a description specified in an order made by the Secretary of State under this paragraph may be varied or revoked by an order made by the OFT under this paragraph.
(3) Subject to sub-paragraph (4) and any provision made under section 272(2), the power of the Commission to make an order under sub-paragraph (1), and the power of the OFT to make an order under sub-paragraph (2), is exercisable in the same circumstances, and on the same terms and conditions, as the power of the Minister concerned to make a corresponding varying or revoking order under the 1973 Act would be exercisable.
(4) The power of the Commission to make an order under sub-paragraph (1), and the power of the OFT to make an order under sub-paragraph (2), shall not be exercisable by statutory instrument and shall not be subject to the requirements of section 134(1) of the 1973 Act.
(5) Where the Commission or the OFT has the power by virtue of this paragraph to vary or revoke an order made by a Minister of the Crown under section 56, 73, 74, 75K or 89 of the 1973 Act, the Minister concerned shall accordingly cease to have the power to do so under that Act.
12F (1) Section 91(1) to (6) shall apply in relation to undertakings accepted under paragraph 12D and orders made under paragraph 12E as it applies in relation to enforcement undertakings and enforcement orders under Part 3.
(2) Compliance with an undertaking accepted by the Commission under paragraph 12D or an order made by it under paragraph 12E shall also be enforceable by civil proceedings brought by the Commission for an injunction or for interdict or for any other appropriate relief or remedy.

30 Jul 2002 : Column 846


(3) Sub-paragraph (2) and section 91(6) as applied by virtue of sub-paragraph (1) shall not prejudice any right that a person may have by virtue of section 91(4) as so applied to bring civil proceedings for contravention or apprehended contravention of an undertaking or order.
Paragraphs 12A to 12F: supplementary provision

12G (1) In paragraphs 12A to 12F "the appointed day" means such day as the Secretary of State may by order made by statutory instrument appoint; and different days may be appointed for different purposes.
(2) An order made by the Secretary of State under paragraph 12C, 12D or 12E—
(a) may make different provision for different purposes; and
(b) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament."

The noble Lord said: This group of government amendments is concerned with transitional and consequential matters. Members of the Committee will have received a letter setting out briefly the purpose and nature of these amendments.

Amendment No. 387A is the one with most significance. It sets out the arrangements for the transition from the Fair Trading Act merger and monopoly regimes to the new regimes. It will, therefore, be of interest to businesses which may be planning mergers for next year. Our approach to the transition has been governed by the principle that in planning mergers, business should have certainty about whether the new or the old law will apply. This has led to the adoption of the following provisions.

For anticipated mergers properly notified to the OFT under the merger notice procedure in Section 75A of the Fair Trading Act, the old law will continue to apply if notification took place before the day appointed for the commencement of the new law. For anticipated mergers that are not notified using the merger notice procedure, the applicable law will be the one applying when the authorities take a decision about that merger. In other words, the law applying when the merger is referred, cleared, or cleared on the basis of undertakings. For mergers completed before the appointed day, the old law will apply irrespective of the date when the merger is notified to the OFT or otherwise made public. For monopoly references, the old law will apply to all references made before the commencement of the new market investigations regime.

The amendment also makes provision for the assignment, where appropriate, of orders and undertakings made or accepted by the Secretary of State under the old regime to the OFT or to the Competition Commission. Where such orders or undertakings are assigned, the OFT or the commission will take on responsibility for their subsequent variation or termination. Our plan is for the Secretary of State to assign those orders and undertakings which are concerned with competition. Those which are concerned with wider public interest issues will remain the responsibility of the Secretary of State.

30 Jul 2002 : Column 847

Amendments Nos. 389A to 389C and 389E to 389F are consequential amendments to the Telecommunications Act 1984 and the Broadcasting Act 1990. These Acts (along with other utilities Acts) contain provisions allowing the relevant regulator to refer disputed licence modifications to the Competition Commission. Such references currently rely on procedural provisions in the Fair Trading Act and the Competition Act 1998 which are being modified by the Enterprise Bill. Most of the necessary consequential amendments to these utilities Acts have already been made. These further amendments clarify some of the earlier amendments and complete the picture. They make explicit provision about the interaction between, for example, the criminal provisions and order-making powers in the Enterprise Bill which have effect for the purposes of the penalties provisions in Clauses 106 to 113 and their corresponding provision in the individual enactments.

The amendments to the Telecommunications Act and the Broadcasting Act provide a template for consequential amendments that will be required to the other utilities Acts that are similarly affected. As I said in my letter, we plan to bring forward these further amendments on Report.

Amendment No. 389D removes an erroneous reference to the Competition Act 1980 in one of the consequential amendments to the Airports Act.

Amendment No. 390A brings the Competition Appeal Tribunal under the supervision of the Council on Tribunals. It replaces the current reference to the Competition Commission appeal tribunals in Schedule 1 to the Tribunal and Inquiries Act 1992. The Council on Tribunals is responsible for keeping under review the constitution and working of a wide range of tribunals. I beg to move.

On Question, amendment agreed to.

Schedule 24, as amended, agreed to.

Clause 273 [Power to make consequential amendments etc.]:


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