My Lords, for the general reasons that I elaborated in the earlier group, I do not consider the CMA to be the right body, or the OIM the right structure, so in this group I give notice that Clause 30 and Schedule 3 should not stand part of the Bill. Clause 30 is about the setting up of task groups in the OIM and Schedule 3 contains more OIM detail.
Perhaps I may correct a small misspeak in the previous group. I referenced accidentally Clauses 29 and 30 instead of Clauses 28 and 29. I also pointed out then that this is part of a wider aim that Part 4 and Schedule 3 should not stand part, but as the Minister will know, it is not possible to put all of that in one amendment and debate it—we have to go through it clause by clause. However, I do not need to be reminded that removing one clause would leave the rest of them standing in a slightly awkward way. My solution is that we should get rid of them all.
I have also put forward Amendment 116 to probe how an independent OIM would look. It covers broadly the themes or principles that keep recurring as we move through the Bill and which need to be picked up, even when forced into the CMA straitjacket. I also heard what the Minister said about not creating new bodies. I recognise that there is a money aspect to this, but the point is that we need something that is better than the current proposals.
The first paragraph of Amendment 116 mentions having an MoU between the Administrations about the market access principles, and then the OIM being set up to assist in oversight. The message is simple: these matters should be consensual, and a consensually agreed body should be representing the four nations, rather than an imposed one that could potentially pay only lip service to the devolved authorities, or that does not necessarily have the right range of knowledge and abilities.
Proposed subsection (2)(a) envisages transparency, other than for commercially confidential information; maybe there could be some confidentiality for the Administrations in some instances too, but there should be a presumption of transparency, because how else
are consumers or anyone else to know whether their views have been properly taken into consideration? Proposed subsection (2)(b) states that the board must include nominations from all of the devolved authorities and from the regions of England. I accept that the regions suggestion is as yet unstructured, but the principle I seek to convey is that it is no good just having the view from Westminster, it needs to be more “on the ground”, which is the enormous benefit of devolution.
The proposed third subsection says:
“Any task or investigatory group within the OIM must have a minimum of five persons drawn from all four nations of the United Kingdom.”
I have not tied the structure to the CMA-type panels, because I do not see that they are needed. However, whatever investigatory teams are used, there should be national diversity, not just cosmetically and not because it is political, but because there are genuinely different sets of knowledge and perspectives. The “minimum of three” task force of the CMA structure is clearly too few.
The proposed final subsection refers to the original CMA, not the OIM, and states that when in the ordinary course of its business the CMA conducts an investigation that requires consideration of the internal market, it shall also appoint balanced inquiry panels from all four nations. This could be in mergers, for example. I note that this part of my amendment contains thoughts that are somewhat similar to Amendment 153 tabled by the noble Baroness, Lady Hayter, which we will get to on Wednesday.
That is my vision of the starting principles for the OIM and how the Government’s construct could also be improved. I do not understand why the Government have given it copy-and-paste structures that derive from those that the CMA has for its investigations, and I question whether that is appropriate. This also underlies the clause should not stand part notices both in this group and generally.
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The CMA deals broadly with large companies, which may be doing things that do not serve the public interest in terms of competition, and where it has powers to enforce mitigating measures. Strong information and enforcement powers are needed to be able to persuade businesses to co-operate and, importantly, the businesses will have done something to bring it on themselves.
The purpose of panels is to have a pool of expert talent available, over a range of sectors—in particular to look at things such as mergers, monopolies, cartels and competitive pricing—without having to have everyone on the payroll except for daily rates when used in an investigation. It is almost a gig way of working, if you like. It is a method of insulating the investigations from the board to reinforce independence, but it also has the effect of making panels less than accountable. It creates, and is intended to be, a closed structure, constructed not to be transparent or accountable. I do not see that as the right philosophy concerning work that relates to the internal market, and I really would like someone—well, the Minister—to explain why it was chosen and what benefits it brings.
I know the Minister does not like EU comparisons—I can say that because the noble Baroness, Lady Neville-Rolfe, started it—but think of the difference between the impenetrable DG Competition and the transparency of DG Internal Market. I had oversight of both; they are worlds apart and so, too, are CMA competition investigations and internal market monitoring. There really is no culture fit.
The OIM may, as indicated on page 29 of the Explanatory Memorandum, be dealing with businesses, possibly in the area of direct or indirect discriminations. These are matters of public interest. When it concerns the goods or services to which we may or may not have access, or if a business or anyone is up to shenanigans, we should know. It would not be shielded in a court hearing.
The remainder of my amendments in this group relate to improving the Government’s structure along similar lines to those I have elaborated regarding my hypothetical independent OIM. Amendment 127 relates to an investigatory panel size of five not three, Amendment 128 says that panels must be drawn from all four nations, and Amendment 130 relates to transparency.