Enterprise Bill

Part of the debate – in the House of Lords at 6:30 pm on 15th October 2002.

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Photo of Lord Sainsbury of Turville Lord Sainsbury of Turville Parliamentary Under-Secretary (Science and Innovation), Department of Trade and Industry, Parliamentary Under-Secretary (Department of Trade and Industry) (Science and Innovation) 6:30 pm, 15th October 2002

My Lords, I am conscious that this is a large group of amendments but they are all similar, in that they primarily make technical changes to the Bill to improve its functioning. They reflect work that has been done over the summer to respond to certain points raised by noble Lords in Committee and to check through the Bill for accuracy. Our hope is that none of the amendments in this group will cause your Lordships any difficulty. Given the size of the group, I will keep my commentary to a minimum and focus on those amendments that are likely to be of most interest.

I said in Committee that we would consult on what would be the appropriate period for bringing an action following a decision in a merger or market investigation. We have now launched our consultation on the tribunal's rules. Part of that seeks views on whether the periods should be one month for a merger and six weeks for a market.

I emphasise that we have not yet come to any view on the appropriate length of either period. However, we have decided that as we may end up changing these periods in the tribunal's rules at an early stage in the life of the legislation, it would be better to remove the reference to three months from the face of the Bill. Amendments Nos. 26, 79 and 141 guarantee that whatever the outcome of the consultation we have the flexibility we need.

There are 28 technical amendments aimed at improving the clarity of the public interest regimes under the Bill. The most significant changes to the EPI scheme are Amendments Nos. 50 and 117, which clarify that there is a power to add new public interest considerations, unrelated to any considerations already specified in Clauses 57 and 148. That was always our clear policy intention.

Amendments Nos. 89, 90, 143 and 144 are technical amendments to provide for the situation where an order effecting a change to the public interest considerations specified in Clause 57 or 148 is subsequently not approved by Parliament. These amendments ensure that the changes are reversed.

We are also tabling 20 amendments to improve the enforcement regime in Parts 3 and 4 of the Bill. Of those, 14 are required to ensure that more than one undertaking can be accepted—for example, when the OFT is considering accepting undertakings in lieu. The remaining six make minor technical changes to other parts of the regime.

Amendment No. 64 is concerned with the interaction between the special regime for water mergers and the general mergers regime. Mergers between conglomerates and multi-utility companies can involve the merger of a range of different businesses. It is possible that a merger between two water enterprises falling to be assessed under the special regime could be a component of a bigger merger. The amendment clarifies that the general Part 3 mergers regime can apply to the bigger merger but, where that happens, excludes from consideration any merger between water enterprises that is subject to the separate mandatory assessment under the Clause 67 regime.

In Committee, the noble Lord, Lord Hunt of Wirral, moved an amendment to the definition of "business" in what is now Clause 178, which I agreed to consider further. The purpose of the noble Lord's amendment was to make clear that the conduct of public bodies, where it has an impact on competition in a market, can be taken into account in the context of a market investigation.

In our view, amending Clause 178 is not the best way of resolving that point. We propose instead to delete the words "in the course of business" from Clause 126(2). That means that the conduct of public bodies supplying or acquiring goods or services in a market will always be capable of being taken into account as a "feature" of a market within the meaning of this clause. Given that the conduct of public bodies is capable of having a significant impact on competition in many markets, we believe that that is appropriate.

Clause 191 provides for professional privilege in respect of legal and banking material in the context of investigations of the cartel offence. Amendment No. 157 provides a different way of accounting for the equivalent in Scotland of legal professional privilege. I am grateful to the noble Lord, Lord Hunt of Wirral, and to his colleagues who drew attention to that matter in Committee.

The Government's intention throughout Part 6 has been to model the OFT's investigatory powers and safeguards for those under investigation on those contained in the Criminal Justice Act 1987. The original Clauses 191 and 197 followed the Criminal Justice Act 1987 precedent. That was done to ensure consistency in approach regardless of whether the OFT or SFO are investigating or prosecuting.

However, having considered the matter further, we recognise the concerns that current Scottish customs and practice be properly reflected in the Bill. I am therefore pleased to move the amendment which draws on the opposition amendment brought forward in Committee. It follows the more recent precedent of the Proceeds of Crime Act 2002 and provides a definition which corresponds more closely with Scottish practice.

Amendments 149 and 150 allow for the appointment of independent members to the Competition Commission's governing council. The function of those independent members will be solely and specifically to sit on the council. We see the addition of independent members to the council as a way of strengthening the leadership of the Competition Commission and reflecting best practice in corporate governance. The council would now consist of the chairmen, the deputy chairmen, the chief executive and one or more independent member.

A number of other amendments are being made, but as I stressed at the outset I do not intend to go into any more detail now. I re-emphasise the minor and technical nature of the amendments. I beg to move.