Public Bodies Bill [HL]

Debate between Lord Whitty and Lord Dubs

Monday 28th March 2011 Lords Chamber

[Lord Dubs]

My Lords, the Minister promised us a consultation document when we debated this in Committee, and we have to welcome the consultation document even if we cannot resist saying, “Decide first and consult afterwards”. I suppose if the Minister says that the consultation will be on the detail, that is fair enough.

Since we last debated this issue, I have had a chance to talk to people who know a bit about Citizens Advice and trading standards, and there is a lot of concern as to whether trading standards will be able to manage it, partly because of the cuts in resources to local government and partly because of the question of how trading standards people somewhere in a town such as Carlisle manage to deal with a complaint against British Airways or some other large organisation. Are they well enough geared to take on some of the big boys when they are a small trading standards body in a moderately sized town in the north of England? The balance is not the same as it would be between the Competition Commission and British Airways or between the OFT and British Airways.

However, I am most concerned about the central issue. Of course I welcome the merger of the OFT and part of the Competition Commission, although I am worried about the other parts. I wonder how the process will work. Certainly there will be a detailed input into the consultation process from people who know a lot about it, but what chance will Parliament have to look at the results of the consultation? What chance will we have to influence the new body through legislation? I agree entirely with my noble friend Lady Kingsmill when she said it ought to have legislation of its own. After all, these bodies were set up through primary legislation. The issues are large enough and important enough to merit a proper debate, with the chance for us to amend the legislation and use the experience that we have, together with the result of the consultation, to see how we can make it better. As I understand it—I hope I am wrong—the Government will simply consult, although they might publish the results of the consultation, and then the legislation will happen through an order that will be unamendable. I fear that Parliament will not be able to play its part and we shall lose some of the benefits of the process that primary legislation gives us.

[Lord Whitty]

My Lords, my apologies for my premature intervention earlier. I will not repeat everything that my colleagues have said, but we have a potential dilemma here. People are in broad terms in favour of a merger, subject to certain caveats, but the consultation paper indicates that the total approach to competition policy and consumer policy in which this new merged body would operate has yet to be determined. Many of the options in the paper—changes in the mergers procedures and in the relationship between the new Competition and Markets Authority and the sector economic regulators—would indeed, as my noble friend Lord Dubs implies, normally require primary legislation. Changes in the ability of people to raise super-complaints probably do not require primary legislation but the implication of giving that right to SMEs is that some of this is about monopsony and oligopsony as well as monopoly and oligopoly. That certainly requires some explanation and some primary legislative change.

The reality is that the arrival of this document a few days ago indicates that the Government’s strategy of introducing a new competition institution by the merger of these two bodies can be properly assessed by Parliament only if you have the totality of the change to the competition regime as a whole. It ought to have been a principle of this Bill that bodies whose basis will require primary legislation should not therefore be dealt with solely on the basis of secondary legislation provided for by this Bill. We saw a smaller example of this the other night when the Government withdrew in effect the proposals for the Security Industry Authority, which will require primary legislation to change to where the Government wish to go.

There is a bit of a constitutional issue here that the Government should be aware of. In general, it is a good idea and I do not propose to oppose it, but the Government are in a bit of a dilemma here and in reality we will have to have a competition Act before we can deliver the new body that the Government are envisaging.