Mr John Greenway (Ryedale, Conservative)

On Tuesday afternoon, during the stand part debate on clause 78, I raised the issue of proposals under which the European Commission could overrule Ofcom's assessment of what might be significant market power on the grounds, as the Minister rightly explained, that that power was necessary to deal with the supervision of international markets, rather than domestic markets within member states. I have a suspicion that clause 85 is another part of the fabric of the supervisory arrangements in respect of international markets and the interface between what Ofcom does and the view that the Commission might take.

I would like the Minister to confirm one or two points of meaning. Under clause 85, Ofcom may decide in ''exceptional circumstances'' on significant market power conditions in respect of network access. I have a suspicion that conditions additional to those in clauses 83 and 84 might need to be imposed on the provider, but those must be submitted to the Commission for approval, and Ofcom can apply those conditions only when they have been approved. Essentially, I have two questions for the Minister. Is the intention behind the requirement on Ofcom to seek the Commission's approval before imposing certain conditions to pre-empt and thus avoid the type of cases that we were concerned about under clause 78 arising, and so prevent friction between our regulator and the Commission?

The second request is for some information on what is meant by ''exceptional circumstances''. Presumably, the Minister, his Department and the shadow Ofcom have in mind certain cases or situations that might require use of the provision. If so, it would be helpful to the Committee and the wider telecommunications industry if the Minister would enlighten us about what might constitute exceptional circumstances. Then, with your agreement, Mr. Atkinson, the Committee might react to what the Minister says.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

I rise to endorse the questions asked by my hon. Friend the Member for Ryedale (Mr. Greenway). More particularly, there is a risk that the Minister will say that the Government have reflected in the Bill the fact that the directives, in particular, article 8(3) of the access directive, give us the opportunity to go to the Commission in exceptional circumstances. Will he track back a bit to the point at which the Council

agreed the directive? Clearly, it anticipated exceptional circumstances in which the network access conditions specified in the directive would not necessarily suffice to secure access or interconnection. Does the Minister know of an example that the Commission had in mind when providing the exceptional ability to go beyond what is specified in the directive?

Mr Stephen Timms (Minister of State (e-Commerce & Competitiveness), Department of Trade and Industry; East Ham, Labour)

The hon. Member for Ryedale has set out fairly the reasons behind the clause. The access directive, to which the hon. Member for South Cambridgeshire (Mr. Lansley) drew attention, recognises that, in exceptional circumstances, national regulatory authorities may wish to impose other obligations for access or interconnection beyond those set out in clause 83, so clause 85 provides that such proposals shall be considered case by case. However, the initial measures may be imposed only with the specific approval of the European Commission.

I find it difficult to cite some examples of the exceptional circumstances that might arise. If we could anticipate what they would be, we would reflect them in the Bill. It is because we do not know what they might be that we left the arrangements more open. The Committee will recognise that unexpected circumstances—perhaps one-off situations—may arise that demand a response from the regulator when a provider has significant market power. We want the regulator to be able to do that in such circumstances. I cannot give particular examples, but the type of situation that we have in mind will be clear to the Committee.

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

The Minister says that the Committee can imagine that one-off circumstances could arise, but that he could not think of anything that could cause such a response because it would be exceptional and we could not anticipate it. That seems to be a contradiction.

Mr Stephen Timms (Minister of State (e-Commerce & Competitiveness), Department of Trade and Industry; East Ham, Labour)

I do not think that there is a contradiction. Clause 83 sets out several types of network access conditions that the access directive allows to be imposed on providers with significant market power. Circumstances may arise in which something exceptional beyond those conditions is required. The clause will ensure that the regulator has the power to impose such conditions, subject to the specific approval of the European Commission.

Mr John Greenway (Ryedale, Conservative)

In that case, the Minister might like to consider the first half of my remarks as dealing with the main point, rather than concentrate on the exceptional circumstances. He is saying that, if the Government could think of such circumstances, they would allow for them in the Bill, but given that something could arise that they have not foreseen, they must make provision for it. That is fine, but the requirement for the Commission to give its approval is the key part of the clause. Presumably, that provision will prevent the conflict that we discussed when dealing with clause 78, although many of us would be worried if our regulator found that what he wanted to do in circumstances in which there may be an abuse of market power in this country was overruled by the Commission.

Mr Stephen Timms (Minister of State (e-Commerce & Competitiveness), Department of Trade and Industry; East Ham, Labour)

The hon. Gentleman makes a fair point. The role of the European Commission provides a safeguard. He is right to draw our attention to the fact that it ensures a level playing field across Europe for the way in which the facilities might be used.

Question put and agreed to.

Clause 85 ordered to stand part of the Bill.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

On a point of order, Mr. Atkinson. I apologise if I am anticipating an announcement by you, but the Select Committee on Trade and Industry published its report on radio spectrum management at 9 o'clock this morning. It is available in the Room to members of the Committee and I hope that they will take the opportunity to consider it before they leave for the recess.

Mr Peter Atkinson (Hexham, Conservative)

As if by magic, it was delivered at 9 o'clock.

Mr John Whittingdale (Maldon & East Chelmsford, Conservative)

Further to that point of order, Mr. Atkinson. That news is extremely welcome. Members of the Committee may recall that, about a week ago, I asked whether it would be possible for the Trade and Industry Committee to produce its report before we reached that part of the Bill that relates to radio spectrums. My hon. Friend the Member for South Cambridgeshire, who is a member of that Committee, said that he thought it unlikely and that the report would probably not appear before the new year. I wish to record the thanks of this Committee to the Trade and Industry Committee for dramatically speeding up its deliberations to produce the report.

Mr Stephen Timms (Minister of State (e-Commerce & Competitiveness), Department of Trade and Industry; East Ham, Labour)

Further to that point of order, Mr. Atkinson. I do not want to be excluded from the enthusiasm that has greeted the news. I, too, am grateful for the timely publication of the report.

Mr Peter Atkinson (Hexham, Conservative)

That is all very good. The report is only 18 pages long.Clause 86 Conditions about carrier selection and pre-selection