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Lord Sainsbury of Turville moved Amendments Nos. 65 to 67:
- Page 54, line 30, after "undertaking" insert "or group of undertakings"
- Page 54, line 32, after "undertaking" insert "or group of undertakings"
- Page 54, line 36, leave out "the" and insert "any"
On Question, amendments agreed to.
Schedule 7 [Provision of information and advice to Ministers etc.]:
Lord Sainsbury of Turville moved Amendments Nos. 68 to 70:
- Page 217, line 37, after "undertaking" insert "or group of undertakings"
- Page 217, line 41, after "undertaking" insert "or group of undertakings"
- Page 218, line 1, leave out third "the" and insert "any"
On Question, amendments agreed to.
Schedule 8 [Promoting good consumer practice]:
Lord Sainsbury of Turville moved Amendment No. 71:
- Page 228, line 38, at end insert—
On Question, amendment agreed to.
Schedule 10 [Part 2 of the 1973 Act]:
Lord Sainsbury of Turville moved Amendment No. 72:
On Question, amendment agreed to.
Clause 94 [Section 94: supplementary]:
Lord Sainsbury of Turville moved Amendments Nos. 73 and 74:
On Question, amendments agreed to.
Clause 104 [Further publicity requirements]:
Lord Sainsbury of Turville moved Amendment No. 75:
On Question, amendment agreed to.
Clause 106 [Attendance of witnesses and production of documents etc.]:
Lord Sainsbury of Turville moved Amendment No. 76:
On Question, amendment agreed to.
Lord Sainsbury of Turville moved Amendment No. 77:
On Question, amendment agreed to.
Clause 117 [Review of decisions under Part 3]:
Lord Hunt of Wirral moved Amendment No. 78:
The noble Lord said: My Lords, when I first read what is now Clause 117, entitled "Review of decisions", I could not quite believe what the Government propose, which is that "any person aggrieved" by a decision of the Office of Fair Trading may apply to the Competition Appeal Tribunal for a review of that decision. As I have already said, this is one of the most damaging clauses in this entire part of the Bill. Just to check that I have not been subject to an idiosyncratic quirk, I have consulted widely outside the Chamber. I discovered that that is also the view of an overwhelming proportion of business and commerce. In particular, in the view of the Confederation of British Industry, it is one of the most damaging clauses in this entire part of the Bill.
However, I then turned my attention to government Amendment No. 79. Whereas I was going to say that there is a safeguard because "any person aggrieved" does have to comply with a three-month time limit, I found to my horror that the Government propose to remove even that safeguard so that at any time "any person aggrieved" may apply to the Competition Appeal Tribunal for a review of the decision.
I am well aware that sitting on the Government Front Bench are people who know a great deal about business and commerce. I find incredible the idea that they would be party to legislation that will allow "any person aggrieved" to apply for a review, especially now that we have that safeguard removed. In future, it will mean that parties whose mergers are approved will not have a definite ruling but will instead face the risk that someone somewhere will appeal. Of course, as with any appeal, there is the opportunity for success. This will cause huge, unnecessary uncertainty to business and risks undermining the competition focus of merger control by potentially placing excessive reliance on the views of others.
I suppose that the Minister will say that the only people aggrieved will be competitors. But given that competition law is about protecting competition and not competitors, that surely is entirely appropriate. This issue is not resolved by the wording in paragraph 11 of Schedule 4, Part 2, which deals with tribunal rules. These proposed rules are permissive in nature and not adequately restrictive of the persons who may apply for a review. Of course it is accepted that it will always be open to a third party to seek judicial review under established procedures, but the lack of such actions in the past shows that the risk of successful challenge is very small and that it is seen as such in the market-place. But this clause now opens the way for third party challenges; it opens the door. I give way.
Lord Borrie: My Lords, I thank the noble Lord for giving way. I wonder whether the problem is being exaggerated. If one refers to subsection (6) of Clause
The Deputy Speaker (Lord Ampthill): My Lords, if the noble Lord would not mind, I think I should put the amendment that has been moved before he continues, which we shall wait anxiously for him to do—
Lord Hunt of Wirral: My Lords, I believe that I was giving way to the noble Lord, Lord Borrie. If I may, I should like to continue to address the House for a little while longer.
I have the good fortune to be senior partner of a firm of solicitors that specialises in judicial reviews. Therefore, I am well aware of the situation as explained by the noble Lord, Lord Borrie. However, it is no restriction when one is allowing anybody to make an application for judicial review and, indeed, encouraging anybody who believes that he is aggrieved—not just any corporate body, but any person who is aggrieved. What one needs is certainty. I suppose that I am now referring back to the 16 years when I had the honour and privilege of being a member of successive governments. Judicial review is something of a nightmare for Ministers. It can result in hugely important decisions being delayed and enormous costs being incurred, which is just part and parcel of the democratic/judicial process.
Judicial review is a procedure to which Ministers are subjected. Perhaps I may explain to the noble Lord, Lord Borrie, that it is not here a question of judicial review of a ministerial decision. As the clause is drafted—the noble Lord rightly points out that I shall seek in a moment to amend that part of the clause—anyone can go through those enormously complex processes of judicial review if he is aggrieved by a decision of the OFT. It widens hugely the basis for judicial review.
Outside business and commerce were somewhat horrified by the clause. The Minister has removed even the safeguard that anyone aggrieved would have to make an application within three months. A person who feels aggrieved can apply for judicial review at any time. That imposes enormous uncertainty in a complicated process.
I am grateful to the noble Lord, Lord Borrie, for trailing what I shall now say. I seek to leave out subsection (6) and in Amendment No. 80 insert the words on the Marshalled List. I do so only in these circumstances. If the Minister is not disposed to accept Amendment No. 80 I do not wish to change the existing wording in subsection (6). I believe that the Minister should accept Amendment No. 80. Then
Only if Clause 117(1) is amended as suggested in Amendment No. 78 would I wish the Minister to amend Clause 117 so that any appeal could consider also the substantive merits of the decision. Judicial review is a narrow focus. It can be time consuming, particularly when it is brought by a member of the public. I shall not mention the cases but I speak with the scars of months of delay caused by one single, aggrieved person testing a ministerial decision. It is too narrow a basis for review of what are substantive economics-based findings and is inconsistent with the position under the 1998 Act under which decisions may be appealed on their merits. A right of appeal on the merits to a tribunal which is skilled in competition law would represent a necessary safeguard in those cases where economic analysis and legal principles have been incorrectly applied by an administrative body. As a case in point, perhaps I may mention the European Commission's conduct of the Airtours case. Amendment No. 80 is based on the assumption that the Government will accept Amendment No. 78. I beg to move.
"(4) An order may—
(a) make different provision for different cases or classes of case or different purposes;
(b) make such transitional, transitory or saving provision as the person making it considers appropriate."
Page 246, line 24, leave out "revokes an order under that enactment" and insert "is a revoking order of the kind dealt with by paragraphs 6 to 8 below"
Page 70, line 13, leave out "or is" and insert "(but is not yet"
Page 70, line 21, leave out from "Kingdom" to end of line 22.
Page 79, line 6, after "shall" insert "(after the acceptance of the undertaking or (as the case may be) the making of the order)"
Page 79, line 43, leave out "it" and insert "the Commission"
Page 81, line 37, leave out from "earlier," to end of line 39 and insert "the day on which the report of the Commission on the reference concerned is published (or, in the case of a report under section 49 or 64, given) or, if no such report is published (or given) within the period permitted for that purpose by this Part, the latest day on which the report may be published (or given) within the permitted period."
Page 86, line 14, at end insert—
"( ) For this purpose "any person aggrieved" shall mean any person who is a party to the relevant merger situation or special merger situation."
9.30 p.m.
"'any person aggrieved' shall mean any person who is a party to the relevant merger situation or special merger situation".
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