My Lords, I have heard some ministerial pushbacks but, I must say, that circularity more or less takes the biscuit: “The Government believe that we need to change the standard and therefore we have changed it.” There is very little that one can get one’s teeth into in terms of the argument. It is simply that the Government believe that JR in its unlawfully
rational or unfair incarnation should apply in this set of circumstances—and that is it, whereas, for the rest of the 2003 Act, the merits version of JR continues unabated.
The Minister made a few points. I thought “merely” was rather extraordinary; it is a very important change to the way the tribunal will operate in those circumstances. Providers will not appeal against these decisions unless they are of major importance. The process of going to the Competition Appeal Tribunal is not lightly undertaken. She used the words “a smooth regulatory process”. Of course Governments always love smooth regulatory processes, but how big is the steamroller employed in these circumstances? There was also the use of “appropriate”—a splendid weasel word.
This is the end of a very entertaining afternoon so I cannot really comment heavily on the Minister’s reply. However, she really could have done better. The noble Earl, Lord Erroll, and I asked for evidence of why in these circumstances—we have all just asked why—but nothing was forthcoming: no evidence, precedent or, “We did it that way and it didn’t work”. We have just decided within the bowels of Whitehall to do this—splendid, but the Government need to do better than that, even with their current majority. However, this is the end of a splendid set of debates this afternoon and I hope for better on another occasion.