My Lords, I thank all noble Lords who have taken part in this debate. The noble Lord, Lord Fox, raised issues around university tuition fees and water services. As he said, I have written to him and to the noble Lord, Lord Purvis, about the points they raised in earlier debates. I am told that these letters have been submitted to the Library but there may be a slight delay in their publication. I confirm what I said there about the exemption in the legislation for public services. More details are set out in the letters. If for some
reason they have not yet been published, the noble Lords, Lord Fox and Lord Purvis, should get in touch with my office, which will be happy to furnish them with a copy.
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Regarding Amendment 149, as previously noted, Clause 38 is based on the CMA’s existing powers under the Enterprise Act 2002. The clause has appropriate modifications to allow the CMA to gather information from businesses, individuals or public authorities. I can tell the noble Baroness, Lady McIntosh, and the noble Lord, Lord Fox, that this includes an existing exclusion for information that is subject to legal professional privilege from being required to be produced or provided to the CMA, whether that information is subject to legal advice privilege or litigation privilege. That confidentiality of communication between lawyers and their clients is protected by subsection (8) and therefore no amendment on the subject is needed.
Amendment 150 seeks to add new wording to the end of Clause 38(8). In reply to the noble Baroness, Lady Bowles, and the noble Lord, Lord Stevenson, I emphasise that the powers in question have to date functioned effectively for the Competition and Markets Authority and all its stakeholders without any need to provide further clarification as sought by this amendment. The Government remain confident that the CMA will continue to apply a flexible and pragmatic approach that will maintain the already high confidence of stakeholders in fulfilling its information-gathering power in Clause 38.
Amendment 156 would add a new clause to place a duty on the Competition and Markets Authority to consider impacts on small businesses when undertaking its functions in Part 4. I understand the concerns of the noble Baronesses, Lady Bowles and Lady Jones, and my noble friend Lady Neville-Rolfe. The Government are aware of the importance of recognising the impact on small businesses. However, the interests of small, medium and large businesses will be taken into account by the OIM in its monitoring and reporting functions, so there is no need to add a specific reference about the impact on small businesses. This is because Clause 32(4) sets out a function for the CMA to advise and report on a regulatory proposal prior to it being passed or made in law. The CMA will examine the potential economic impacts of the proposal on the functioning of the UK internal market. This could include a proposal’s impact on competition or trade distortions, indirect or cumulative economic effects or impacts on prices.
All these assessment criteria are highly relevant to and must cover impacts on small businesses. In order to serve all those with an interest in the internal market, the advice and reporting in question will of course account for the impacts on consumers, professionals and businesses of all sizes, in all sectors.
In the light of the reasons I have set out today, the Government do not consider that the amendments in the group are necessary. I hope that noble Lords will withdraw or not move them.