My Lords, I warmly support the noble Lord, Lord Lamont, in this amendment. Earlier this afternoon, I spoke about the centrality of enforcement in the regime introduced under this Bill. I need not repeat what I said then, but it is important to look at the mechanism of enforcement.
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Without doubt, the CAT is completely independent —we will turn to that on Wednesday, I hope—but one must look at litigation as a means of enforcement with a degree of reality. I hope the Minister can say something then about the cost of proceedings before the CAT, whether matters such as third-party funding have been canvassed, as to whether the insurance industry will fund people for these challenges, and how the enormous cost, both in lawyers and economists, of proceedings before the CAT will make it a mechanism for effective enforcement. However, that is for Wednesday; today, we are dealing with the CMA.
It strikes me as very odd to think of the Minister being independent in respect of his colleagues’ decisions as Ministers. I assume there is no decision yet to set this Minister up as a sort of Attorney-General, with his own responsibility directly to enforce, being accountable exactly for what he does. Otherwise, unless there is an independent aspect of the Minister completely separate from his political position, it seems unreal to expect him to refer the decision of another government department to grant a subsidy scheme or a subsidy. He accepts that all payments made by the Government in this respect will come within the principle.
Therefore, when looking at this, one must look at the reality that the CMA’s report will be the most effective enforcement mechanism. I know that it is only advisory, but how many times have noble Lords read, “We did this on advice”? On a matter within the expertise of the CMA, I would be very doubtful that people would challenge it, unless they were advised that it was seriously wrong. The essence of this amendment is that the CMA is the obvious body to provide the real and effective enforcement in the real world in which we live.
There is one other point I want to ask the Minister about, and that is the scope of the Minister’s ability to refer. He can obviously refer the question of whether the subsidy breaches the principles in the Act, but is it clear in the Bill that he can refer the question of whether some assistance that is being given is a subsidy? For example, we discussed earlier whether equity investments would be a subsidy. What happens if the local authority says, “Of course, any bank would have done this”? But that really is questionable. Can a reference be made on that by the Secretary of State? In a form of tax concession, is the CMA entitled under these provisions to express a view on these important matters which trying to deal with at some later stage—before the CAT, for example—will be very difficult? It is much better that things are dealt with now.
In view of the hour, that is all I wanted to say at this stage on this series of amendments, but I regard them as vital to the effective enforcement of the Bill. It has been a privilege to join the noble Lord, Lord Lamont, in speaking to these amendments.