Compensation Bill [HL]

I shall just say a little bit more about the case, which was a Dutch case that concerned the Dutch Bar. Forgive me for reading my notes, but I want to get this absolutely clear. I raised the issue of that case to indicate why I am not simply saying that we should move this immediately over to the Office of Fair Trading, because I am not sure that we will cover it effectively. The case suggested that professional regulators would constitute ““associations of undertakings”” and thus fall within Article 81 of the EC treaty. The German Government intervened in that case to make the point that the Dutch Bar was acting as a public authority rather than as an ““association of undertakings”” and as such was not governed by the treaty rules on competition. That approach was rejected by the European Court of Justice because it made a distinction between two types of regulation: the first is when a member state grants regulatory power to a professional association, with defined interest criteria and principles with which its rules must comply, and also retains its power to adopt decision in the last resort. In this situation, rules would be state measures and would not be covered by the treaty. The second approach is when the rules adopted by the professional association are attributable to it alone. There is an issue about how we take the matter forward, but it may come down to the fact that if that case stands in the context of this particular regulator, we will not be in the position that we would expect to be in, with the Office of Fair Trading simply doing its normal job in relation to competition. Of course, I am discussing this with the Office of Fair Trading so that we get to a suitable point. However, I do not want the imposition of that to distract the regulator from the main purpose of its job, which is to ensure that we safeguard consumers. I want to think, on the back of the noble Lord’s amendment, about the need to include the statutory objective in these terms. We recognise that the regulator needs to be mindful of the importance of competition in this market and the role that it can play in enabling consumers to get a better deal. That is not proactively requiring competition, but being mindful of it. I plan to talk to the Office of Fair Trading to see whether we can get a definitive decision on the Wouters case and whether we need to put anything in at all. I recognise that the noble Lord may feel that we have used a stronger context than is appropriate for the regulator. I hope that he will understand the general point that I am making, which is that a regulator looking across a market, which at the moment is mainly in one particular area but may include other areas in the future, may wish to be mindful the implications for consumers when there are fewer companies operating in the market. I will come back to the noble Lord after I have talked to the Office of Fair Trading and tried to get a definitive decision on the European Court of Justice ruling. I recognise that we perhaps need to rethink how that is put on the face of the Bill. I hope that that will go a long way towards resolving the noble Lord’s question.