My Lords, a lack of oversight has been a persistent theme through the passage of this Bill. Included within that is judicial oversight and the fact that under Clause 13 any appeal
to the Competition Appeal Tribunal cannot take account of the merits of a case against the Secretary of State. The rationale for this, as the Constitution Committee said in its report,
“is unclear and is not justified in the Explanatory Notes.”
It further said:
“The House may wish to ask the Government to justify reducing the powers of the Competition Appeal Tribunal in respect of appeals under clause 13.”
The clause reverses the Competition Appeal Tribunal’s TalkTalk Telecom Group plc and Vodafone Limited v Office of Communications decision, which addresses, inter alia, the standard of review on an appeal to the Competition Appeal Tribunal under Section 192 of the Communications Act.
The Minister’s predecessor, the noble Baroness, Lady Barran, said in Committee in response to the Clause 13 stand part debate:
“It merely changes the standard to which they will be reviewed. Having these cases reviewed on ordinary judicial review principles, rather than taking account of the merits of the case, aims to ensure a smooth regulatory process that focuses on fair decision-making … this should reduce any incentives for providers to litigate solely for the purpose of delaying the regulatory process.”
Note the word “merely”. This is very much for the Government’s convenience. She continued:
“It is particularly important, given that these decisions relate to the security of a provider’s network, that decisions can be addressed swiftly, and providers can get back to the important work of ensuring that their networks are secure.”
This nevertheless tries to give the impression that this is for the benefit of the providers. The noble Baroness then said that:
“Clause 13 applies to appeals only against relevant security decisions … The Government consider this approach to be appropriate to ensure that Ofcom’s regulatory decisions can only be successfully challenged when they are, broadly speaking, unlawful, irrational or procedurally unfair. By reducing providers’ incentives to litigate to delay regulatory action, the provisions in the clause contribute to Ofcom’s effectiveness as a regulator.”—[Official Report, 13/7/21; cols. GC 516-17.]
Surely in these circumstances, particularly on security, the merits of security decisions are particularly important and this is the legislative equivalent of the Government marking their own homework—or perhaps I should say making it much more difficult for it to be marked. I beg to move.