The effect of varying the licence may be to make the licensee's name misleading, as there would be no new application by the licensee to be licensed under a particular name. The amendment resolves that conflict. For example, the name of a business may reflect the fact that its licence covers several subcategories. If the licensee became unfit to operate in one of the subcategories, the Office of Fair Trading should be able to vary the licence. That would prevent the business operating in that subcategory and would protect consumers. However, it may also make the licensee's name misleading. Without the amendment, the OFT could be prevented from taking that step. If it were, it could breach proposed new section 25(1AD). The amendment provides for the OFT to vary the licence.
The OFT retains the power to vary a licensee's name by compulsion if the name would be rendered misleading by the licence variation. I stress that this is a technical amendment to address a potential conflict.
Amendment agreed to.
'(4) The Secretary of State may, by order by Statutory Instrument, subject to affirmative resolution, vary the guidance or issue further guidance to the Office of Fair Trading (OFT) with regard to this section, and the OFT shall then be required to have due regard to this guidance.'.
The amendment gives the Secretary of State the right, by order subject to affirmative resolution, to vary the guidance or issue further guidance to the OFT about this section. The OFT is then obliged to have due regard to that guidance.
Over recent months, I have become increasingly concerned about the OFT's considerable powers, which it does not always use in the most fair, sensible and sensitive way. About 15 or 16 months ago, an Adjournment debate in my name was held in the House of Commons on horse racing. The OFT was investigating the way in which horse racing was being operated and regulated. The industry was fearful of the outcome of that investigation. The matter was of particular concern to me as a lover of horse racing, but more relevantly, it is very important to my constituency; the Cheltenham racecourse is, some might say, the jewel in its crown. It was frustrating to discuss that issue in the House of Commons, because it became apparent that there was nothing that we could do to influence the OFT's deliberations. In fact, it refused to meet us; I realise that the Minister would have had greater access. That the OFT could act as a court, seemingly exempt from anyone's jurisdiction, was wrong. Even the Minister was unable to affect its decision. I hope that he will not mind my quoting his words at the time:
''I am sure that the hon. Member for Tewkesbury will understand that the matters being considered by the Office of Fair Trading fall within its ambit, so it would be inappropriate for me as a Minister with responsibility for competition to seek to intervene in its deliberations.''—[Official Report, 18 September 2003; Vol. 410; c. 1136.]
I understand that to an extent. However, what that means is that a Member of Parliament has no right to take a case to the OFT, regardless of its importance to their constituency. There was nowhere for me to go. That rather long preamble is the background to this amendment.
The OFT should be under parliamentary control. I do not want to see everything centralised or the Minister running the OFT on a day-to-day basis. That is not why the OFT was set up, and I would not find that desirable. However, it can be demonstrated through Parliament that there is something wrong with the way in which the OFT goes about its business. Given that the Minister generally accepts the points made—as he, and indeed the Sports Minister, did on that occasion—and that we are powerless to do anything, Ministers should have the ability to act when they consider it to be reasonable. That is the basis of amendment No. 26.
The hon. Member for Tewkesbury showed through his horse-racing analogy that he has a particular view of the Office of Fair Trading. He was right at that time on that issue. The quotation that he read out related to a specific issue concerning that industry at that time, and the investigation into that industry by the Office of Fair Trading. The hon. Gentleman will know that the Government, during the debates on the Enterprise Act 2002 and the Competition Act 1998—with assistance from all the parties in the House—wished to take direct responsibility for many of the competition issues away from Ministers. It was felt that those matters would be better addressed through bodies such as the Competition Commission and the Office of Fair Trading.
I understand the hon. Gentleman's concerns, but unfortunately they do not apply to the issues that we are discussing, and particularly the hon. Gentleman's amendments. The hon. Gentleman said that the OFT is not subject to parliamentary scrutiny, but he will be aware that bodies must appear before the Treasury Committee. It may have been straight after the investigation that the chairman of the OFT appeared before the Select Committee. Parliamentary scrutiny exists in that MPs can question the activities of the OFT.
As for amendment No. 26, as hon. Members are aware, the Office of Fair Trading is already required to provide guidance on how it will apply the fitness test. Hon. Members have a copy of the draft guidance in the Committee packs that I was asked to provide on Second Reading I am pleased to say that that occurred. The Government believe that the amendment would add an extra layer of information for which the OFT must have regard when assessing fitness. That would not only be an extra layer for the OFT, but applicants and licensees would have to comply with DTI guidance, as well as OFT guidance. That could confuse applicants as to which guidance applied.
I commend the hon. Gentleman's intention to provide everyone with as much information as possible, but I am sure that he would not wish to add to bureaucracy, or to be chided by my hon. Friend the Member for Leeds, West for supporting and promoting even more regulation. He would not wish to go down that route. We want to keep the application process as simple as possible. As hon. Members can see from their packs, the draft OFT guidance is already comprehensive, and that will be subject to full consultation before it takes effect. As the hon. Gentleman said, the OFT is an independent regulator, and it is responsible for policing the licensing regime.
If the Minister finds that the OFT is not issuing appropriate guidelines to bring about the intentions of the Bill, particularly that of providing fairness, is there anything that he can do without resorting to primary legislation? I am keen to avoid bureaucracy, but I believe that my way of avoiding it is less cumbersome than his.
The OFT will be involved in full consultation while the guidelines are in draft form. I am sure that the industry and other stakeholders who are not happy with those draft guidelines will seek to have them changed. The Minister will be inundated with requests to explain the spirit and intention of the Bill and what it was aimed at achieving. In that respect, I believe that an opportunity exists to influence the final detail of those guidelines.
I do not think that I will ever convince the hon. Gentleman—[Interruption.] My notes say that I have full confidence in the OFT and its experience, and I do. What we tried to do goes back to our consultation o the Bill with stakeholders.
The Minister said that there was no crossover between the horse racing analogy and this matter, but his answer proves that there is. I asked a direct question. Can he intervene and bring about a change in the guidance? His answer was longhand for no.
No is the answer to that. It was not a long way of saying no; it was right to say that the guidance that is being put forward, which is in draft form for consultation, does not supplant the intention of the law. The intention of the law is clear, and the Office of Fair Trading will act accordingly. If things are not working properly, we will address that through the review processes contained in the Bill.
We are encouraged by the Opposition to reflect on many of the Bills that come before the House, to review the question of application and how Bills are working. That was not done in the case of the Consumer Credit Act 1974. That Act has never been reviewed during its 30 years, until now. That will not be the case with this Bill because of the nature of the sector.
I fully understand and acknowledge the hon. Gentleman's concern about the Office of Fair Trading. If that concern is great, the Minister can arrange for him to meet that body. I am sure that that would be an exciting meeting, and I would look forward to hearing the outcome of discussions on the matters that he raised. The Government believe that the amendment would add to bureaucracy. We are trying to keep matters as simple as possible and not add burdens to business. In that spirit, I hope that the hon. Gentleman will withdraw his amendment, but I shall understand if he does not wish to do so.
The hon. Gentleman has known me long enough to know that if I wished to say that, I would say that, but that was not my answer. I am content with the answer that I gave to the hon. Gentleman, which was that there is an ability to change the draft guidelines, and the OFT cannot supersede the law.
We must leave that for history to judge, but it strikes me that if we do not put in the Bill something along the lines of my amendment, it could lead to inappropriate guidelines, and that would in turn lead to the same situation that we saw in the horse racing industry. That situation could have been terminal for that industry. It was very serious, and I do not wish to see it replicated. I have made my point; I look around the Committee Room and see that I am unable to win the vote, even if I were to press it. I shall not waste the Committee's time in so doing. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause, as amended, stand part of the Bill.
May I just take a few moments of the Committee's time to ask—[Interruption.] I do not know whether that refers to me. I ask for clarification as to why subsection 2A(d) is relevant to the Bill. In so asking, I am happy to condemn discrimination on the grounds of sex, colour, race or ethnic or national origins, and, indeed, many other forms of discrimination. During the lunchtime break, I asked a question in the Chamber on Ethiopia and Eritrea. International development, as you are well aware, Sir John, is one of my passions. However, I do not see the relevance of that to this clause. I hope that vexatious litigants will not seek to prevent otherwise good-standing people from running their businesses and being awarded licences. I can see the relevance of that paragraph to general life, but I cannot see the relevance to the clause. I would appreciate an explanation.
I can explain very quickly, in the time permitting, that the clause represents the current test, so it already falls within that test with reference to equality issues.
Question put and agreed to.
Clause 29, as amended, ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Watson.]
Adjourned accordingly at twenty-nine minutes to Six o'clock till Thursday 27 January at twenty-five minutes past Nine o'clock.