My Lords, I too am speaking on this Bill for the first time. However, many years ago I tangled with—is it called Robinson-Patman?—and triple damages and all that. That has given me an abiding interest in consumer protection. It is clear from the back of the Bill, which says,
“to make provision about private actions in competition law”,
that this is a very important part of the Bill, consigned as it is to Schedule 8. As my noble friend Lady Noakes said, there are two issues. One is, what about opt-out per se? The second is, what about the safeguards? I would prefer that there were no opt-out arrangements in the Bill. However, I will concentrate on the safeguards.
None of us, I think, wants to see opt-out arrangements leading to excessive litigation—arguably we already have too much—and we do not want collective proceedings turned into a business, as opposed to the recognition and delivery of justice. There are dangers. As my noble friend said, the CBI has highlighted them. Others, too, have highlighted them. In the sixth report of 2013-14 from the House of Commons committee on the draft Consumer Rights Bill, paragraph 282 says:
“The Government has said that collective proceedings should not be brought by law firms, third party funders or special purpose vehicles. Under the draft Bill, any non-class member can be appointed as the representative in the collective proceedings, provided that the Tribunal considers it just and reasonable for that person to act as a representative. We conclude that this safeguard should be strengthened to reflect the Government’s stated intention”.
In paragraph 283 the committee goes a little further:
“We recommend that revised Tribunal Rules should clarify that collective proceedings cannot be brought by law firms, third party funders or special purpose vehicles”.
I ask the Minister: did it become the Government’s position, and is it still the position, that there should be a bar on law firms, third-party funders or special purpose vehicles? There is some reinforcement for thinking that this was, and I hope still is, the Government’s position: in the response to the private actions consultation, paragraph 2, headed “Introduce a limited opt-out collective actions regime, with safeguards”, reads:
“Recognising the concerns raised that this could lead to frivolous or unmeritorious litigation, the Government is introducing a set of strong safeguards, including: strict judicial certification of cases so that only meritorious cases are taken forward; no treble damages; no contingency fees for lawyers; maintaining the ‘loser-pays’ rule”—
which we have already heard about this afternoon—
“so that those who bring unsuccessful cases pay the full price. Claims will only be allowed to be brought by claimants or by genuine representatives of the claimants, such as trade associations or consumer associations, not by law firms, third party funders or special purpose vehicles”.
I may not be very good at interpreting draft Bills, but it does not seem to me—and certainly not to my noble friend Lord Hodgson—that the Bill meets that commitment, which was made by the Government in its response to the consultation.
Does the Bill, as drafted, fulfil that government response? If it does not, should we not have something on the face of the Bill—which is, after all, what my noble friend Lord Hodgson is really asking for in his extensive probing amendments? He is asking for something in the Bill as opposed to relying on the tribunal’s rules. As my noble friend said, the tribunal’s rules are absolutely key to the way that this regime will in fact work when it starts. The Bill is absolutely clear that the tribunal has a very great responsibility to draw up these rules, but of course the rules can only be drawn up in the light of the legislation. If the legislation is not complete, or is missing certain things, that of course makes the discretion granted to the tribunal very wide. I draw attention to one point in particular, which is about how the phrase “just and reasonable”, which appears in new Section 47B(8)(b), will be interpreted. I have two questions to ask my noble friend on the Front Bench. First, what does that actually mean, legally? Secondly, are there precedents for the use of “just and reasonable” and, if so, what are they?
Paragraphs 6 and 7 of the tribunal’s draft rules of March of this year look at the appointment of a representative. It is difficult to see that they go anywhere near meeting the points that were made by the Government’s response or by the House of Commons Select Committee. I do not find draft rules 6 and 7 very helpful, and I would welcome the Minister’s comments on the state of safeguards. I very much support my noble friend’s request for a meeting to discuss these matters, because the opt-out regime still looks very risky to me.