My Lords, I declare my interest as a partner for the last 45 years in the global commercial law firm, DAC Beachcroft. I wish to speak particularly to Amendments 41H, 41J and 41K. In doing so, I support my noble friend in urging caution when examining Schedule 8 to the Bill.
This is a complex area of law and procedure and I would be the first to say that I do not understand it all, but I think that the overview is this. We are now dealing in this group of amendments with situations where, first, one or more businesses have been found to be in breach of competition law; secondly, numerous consumers have been affected as a result; thirdly, the individual amounts by which each consumer is affected are small; fourthly, a collective mechanism is therefore needed; but, fifthly, getting all affected consumers to opt in to join a legal case has not worked to date. Against that background, I can well understand why the Minister has promoted the concept of opt-out, whereby a representative person can take action on behalf of all those affected unless they positively object to being included and so choose to opt out.
My caution is this: that is a wholly new concept in the United Kingdom, so I argue that we must be cautious. We must balance the rights of the consumer with the rights of each individual business, particularly small and medium-sized enterprises, accepting of course that we are dealing with situations where business has been in breach of its market obligations. My noble friend has outlined proposals that examine carefully some areas of the detailed mechanics in this schedule and I support their overall approach, which seems to me to be one of proportionality. I recall, when I was speaking from the Benches opposite on the Compensation Bill, that I urged similar caution when we were looking at the regulation of claims management companies in 2005. I venture to say that if we had been a little more cautious, perhaps we would not have been quite so inundated with nuisance calls and texts about payment protection insurance, where a similar balance has had to be struck.
So how do we promote the interests of the consumer in a proportionate way? I agree that we need to achieve greater control over the identity of the representative person who decides to launch down this compensation trail on behalf of others. To me, the proposal that we limit this to trade bodies has considerable force but, if that is felt to be too limiting, we should lay a clear
marker that the guiding principle to be applied in appointing a representative person is that it is in the interest of the consumers, the so-called class members, to do so. I support Amendments 41H and 41K in particular but also applaud the thinking behind the amendments generally.