My Lords, I am grateful to my noble friend Lord Phillips for his support for this part of the Bill and for taking us so carefully through his various amendments. This is an unusual grouping in that it includes government amendments which meet some of the views expressed by noble Lords during the passage of the Bill.
In addressing my noble friend’s amendments, I emphasise that the Government recognise the important work undertaken by the Access to Justice Foundation. We are not against the Access to Justice Foundation receiving unclaimed damages for its good work. Indeed, pro bono costs are already awarded to the foundation in the Court of Appeal and the Supreme Court. Accordingly, the Bill makes provision for the CAT to award unclaimed damages to the Access to Justice Foundation.
However, we are trying to ensure that unclaimed funds are allocated in the most appropriate way and that certain contingencies are provided for. The Government want consumers to obtain redress for breaches of competition law, which, as my noble friend explained, is all that is at issue here. These cases may be costly. Accordingly, the Government consider that
representative bodies which successfully represent consumers should have the opportunity of having some or all of their costs paid out of unclaimed damages so as to ensure that they bring actions on behalf of consumers. Therefore, the Bill grants the CAT discretion to award some or all of the unclaimed damages to the representative so that it may recoup some of its costs—on a case-by-case basis, obviously—and, at the same time, the CAT may also award unclaimed damages to the Access to Justice Foundation.
Similarly, with regard to Amendments 76 and 79, the Government wish to encourage consumers to seek redress for breaches of competition law. Consumers will require someone to represent them. Accordingly, the Government wish to encourage representatives—including, of course, those who act on a pro bono basis—and therefore the Bill provides that the CAT may sometimes award costs to a representative who acted on such a basis. The Government believe that if the opportunity for unclaimed damages to go to representatives who act on a pro bono basis is restricted, there could be negative consequences for the consumer. However, given this debate, I will look in Hansard at the detail that has been fully set out, and reflect on our discussions. I hope that my noble friend and the noble Baroness opposite will do the same.
I am moving five government amendments. Briefly, Amendment 71 commits that the body to receive unclaimed damages is a charity. We have accepted the Delegated Powers and Regulatory Reform Committee’s recommendation and so the exercising power will be amended to be affirmative. Our third amendment allows underlying claimants to incur costs if they make an application to have the representative removed and lose the application. This has two benefits: first, it aligns the costs with the wider “loser pays” principle that exists in domestic law; and, secondly, it should deter vexatious applications. The final amendment is minor and technical and follows an earlier government amendment.
I ask the noble Lord to withdraw Amendments 70, 76 and 79 and beg to move government Amendments 71, 73, 75, 77 and 78.