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Lord Hodgson of Astley Abbotts: My Lords, I have an amendment in this group. It is another crack at the point I made previously, but from a slightly different angle. As my noble friend said, Clause 272 deals with power to make consequential amendments. Subsection (2)(b) provides that an order under the clause may,
- "make incidental, supplementary, consequential, transitional, transitory or saving provision",
Lord McIntosh of Haringey: My Lords, the telegraphic reply would be that both provisions have been approved by the Delegated Powers and Regulatory Reform Committee. We rely on that, as the Commons say, with regard to an amendment coming from this House which affects privilege. However, I shall argue the case.
The effect of Amendment No. 289 would make it impossible to use the consequential amendments power in Clause 272 to amend the cartel offences. If it were true that the power could be used to make substantive changes to Part 6, then I agree that there would be cause for concern. The power can be used only to supplement or make incidental or consequential provision and for the limited purposes given in subsection (1); namely, for the purposes of the Bill and in consequence of, or to give effect to its terms. The power would absolutely not permit the wholesale re-writing of substantive parts of the Bill.
Contrary to what the noble Lord, Lord Kingsland, has said, it would not be possible to make substantive changes to Part 6. It would not, for example, be possible to use the power to change the definition of the cartels offence; nor would it be possible to increase the penalties for the offence or to introduce any new investigative powers.
Amendment No. 290 would introduce an unnecessary degree of parliamentary oversight over the use of a power which is a standard feature of all pieces of legislation where, as here, there are close and complex interactions with other statutes. Clause 272 simply provides the flexiblity to make, by delegated legislation, any minor revisions to legislation that are required to ensure that the provisions of the Bill fit well with the provisions of other legislation. Examples of the type of amendments that may be made can be found in Schedule 25. In a Bill of this complexity, covering a number of policy areas, it is an entirely sensible provision.
9.15 p.m.
Lord Hodgson of Astley Abbotts: My Lords, will the Minister give way? The Bill does not use the word "minor"; it says that,
- "The Secretary of State may . . . make such . . . provisions . . . as he considers appropriate".
The fundamental point is that this has been examined by the Delegated Powers and Regulatory Reform Committee and the committee considers the powers in the Bill to be appropriate. I oppose these amendments.
Lord Kingsland: My Lords, I thank the Minister for his response, which I find at least partially reassuring. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 290 not moved.]
Schedule 25 [Minor and consequential amendments]:
Lord McIntosh of Haringey moved Amendments Nos. 291 to 325:
- Page 332, line 31, at end insert—
"(5A) References in this section to the Competition Commission shall, in cases where section 72(2) of the Enterprise Act 2002 applies, be read as references to the Office of Fair Trading." .
Page 334, line 12, after first "of" insert "the Table at the end of paragraph 3 of"
Page 334, leave out line 15 and insert—
"(b) the following entries are inserted at the appropriate places—
"Competition Service""
Page 334, line 42, after "1984" insert "or section 44B of the Airports Act 1986"
Page 337, line 37, at end insert—
"( ) subsection (2) (requirement to notify Director of intended prosecution) is omitted"
Page 339, line 19, at end insert—
"(4A) References in this section to the Competition Commission shall, in cases where section 72(2) of the Enterprise Act 2002 applies, be read as references to the Office of Fair Trading." .
Page 341, line 4, at end insert—
"( ) subsection (2) (requirement to notify Director of intended prosecution) is omitted"
Page 342, line 43, leave out from "if" to end of line 2 on page 343 and insert "—
(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted."
Page 349, line 15, leave out from "if" to end of line 17 and insert "—
(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted."
Page 351, line 7, at end insert—
"(1A) In section 44 (supplementary provisions relating to references to Commission), subsections (3) and (3A) shall cease to have effect.
(1B) After section 44 there is inserted—
"44A REFERENCES UNDER SECTION 43: TIME LIMITS
(1) Every reference under section 43 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Commission on a reference under section 43 shall not have effect (and no action shall be taken in relation to it under section 46) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the CAA under subsection (3).
(3) The CAA may, if it has received representations on the subject from the Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under subsection (3) in relation to the same reference.
(5) The CAA shall, in the case of an extension made by it under subsection (3)—
(a) publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by it under paragraph (a) to the airport operator concerned and the Secretary of State.
44B REFERENCES UNDER SECTION 43: POWERS OF INVESTIGATION
(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3), for the purposes of references under section 43 as they apply for the purposes of references under that Part—
(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).
(2) Section 107 shall, in its application by virtue of subsection (1), have effect as if—
(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.
(3) Section 108(5)(b)(ii) shall, in its application by virtue of subsection (1), have effect as if—
(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.
(4) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 113 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1), have effect in relation to those sections as applied by virtue of that subsection.
(5) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection."
(1C) In section 45 (reports on references)—
(a) after subsection (2) there is inserted—
"(2A) For the purposes of section 46(2), a conclusion contained in a report of the Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in
connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.
(2B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 43 as the conclusions of the Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.";
(b) for subsection (4) there is substituted—
"(4) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Commission on a reference under section 43.
(4A) In making any report on a reference under section 43 the Commission must have regard to the following considerations before disclosing any information.
(4B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest.
(4C) The second consideration is the need to exclude from disclosure (so far as practicable)—
(a) commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual's interests.
(4D) The third consideration is the extent to which the disclosure of the information mentioned in subsection (4C)(a) or (b) is necessary for the purposes of the report."
Page 351, line 27, at end insert—
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