Baroness Merron:

Moved by Baroness Merron

242: Before Clause 148, insert the following new Clause—“General procedure (1) An appeal to the Upper Tribunal under section 148 or 149 must be commenced by sending a notice of appeal to the court.(2) The notice of appeal must set out the grounds of appeal in sufficient detail to indicate— (a) under which provision of this Act the appeal is to be brought;(b) to what extent (if any) the appellant contends that the decision against, or with respect to which, the appeal is brought was based on an error of fact or was wrong in law; and(c) to what extent (if any) the appellant is appealing against OFCOM’s exercise of its discretion in making the disputed decision.(3) The Upper Tribunal may give an appellant leave to amend the grounds of appeal identified in the notice of appeal.”Member’s explanatory statementThis amendment introduces additional procedural steps to be followed when the Upper Tribunal considers an appeal under Clauses 148 and 149.

My Lords, I am pleased to speak to Amendments 242, 243 and 245, which have been tabled in the name of my noble friend Lord Stevenson. The intention of this group is to probe what we consider to be an interesting if somewhat niche area, and I hope the Minister will take it in that spirit.

To give the Committee some idea of the background to this group, when Ofcom was originally set up and was mainly dealing with mobile and fixed telephony cartels, it had a somewhat torrid time, if I can describe it that way. Just about every decision it took was challenged in the courts on the so-called merits of the respective cases and on its powers, as the companies taking it to court had many resources they could call upon. That very much held up Ofcom’s progress and, of course, incurred major costs.

Prior to the Digital Economy Act, the worst of the experiences of this period were over, but Ofcom managed to persuade the Government that challenges made by companies in scope of Ofcom would in future be based on judicial review, rather than on merits. In other words, the test was whether Ofcom had acted within its powers and had not acted irrationally. An area of concern to a number of companies is who can challenge the regulator, even if it is acting within its powers, if it gets it wrong in the eyes of said companies. Perhaps the Minister will reflect on that.

This group of amendments is intended to provide better protections for service providers, their users and the wider public, alongside processes that should mean fewer delays and greater efficiency. The Competition Act 1998 permits appeals of Ofcom’s decisions to be made additionally on account of an error of fact, an error of law or an error of the exercise of its discretion.

The current wording of the Bill permits challenge only by way of judicial review of Ofcom’s decisions, which habitually leads to somewhat prolonged and drawn-out litigation in a process that, through judicial review, could take some nine to 18 months. That means an inability for a challenge by any party of the evidence or existence of a factual error. In light of their sensitive nature and the significant impact that detection orders may have on a large number of users of any particular service, these amendments would be something of a proportionate step to permit challenge on an extended basis. I look forward to hearing the response from the Minister, and I beg to move.

My Lords, I congratulate the noble Baroness on having elucidated this arcane set of amendments. Unfortunately, though, it makes me deeply suspicious when I see what the amendments seem to do. I am not entirely clear about whether we are returning to some kind of merits-based appeal. If so, since the main litigators are going to be the social media companies, it will operate for their benefit to reopen every single thing that they possibly can on the basis of the original evidence that was taken into account by Ofcom, as opposed to doing it on a JR basis. It makes me feel quite uncomfortable if it is for their benefit, because I suspect it is not going to be for the ordinary user who has been disadvantaged by a social media company. I hope our brand spanking new independent complaints system—which the Minister will no doubt assure us is well on the way—will deal with that, but this strikes me as going a little too far.

My Lords, I enter the fray with some trepidation. In a briefing, Carnegie, which we all love and respect, and which has been fantastic in the background in Committee days, shared some concerns. As I interpret its concerns, when Ofcom was created in 2003 its decisions could be appealed on their merits, as the noble Lord has just suggested, to the Competition Appeal Tribunal, and I believe that this was seen as a balancing measure against an untested regime. What followed was that the broad basis on which appeal was allowed led to Ofcom defending 10 appeals per year, which really frustrated its ability as a regulator to take timely decisions. It turned out that the appeals against Ofcom made up more than 80% of the workload of the Competition Appeal Tribunal, whose work was supposed to cover a whole gamut of matters. When there was a consultation in the fringes of the DEA, it was decided to restrict appeal to judicial review and appeal on process. I just want to make sure that we are not opening up a huge and unnecessary delaying tactic.

I thank all those who have spoken, and I very much appreciate the spirit in which the amendments were tabled. They propose changes to the standard of appeal, the standing to appeal and the appeals process itself. The Government are concerned that enabling a review of the full merits of cases, as proposed by Amendments 243 and 245, could prove burdensome for the courts and the regulator, since a full-merits approach, as we have been hearing, has been used by regulated services in other regulatory regimes to delay intervention, undermining the effectiveness of the enforcement process. With deep-pocketed services in scope, allowing for a full-merits review could incentivise speculative appeals, both undermining the integrity of the system and slowing the regulatory process.

While the Government are fully committed to making sure that the regulator is properly held to account, we feel that there is not a compelling case for replacing the decisions of an expert and well-resourced regulator with those of a tribunal. Ofcom will be better placed to undertake the complex analysis, including technical analysis, that informs regulatory decisions.

Amendment 245 would also limit standing and leave to appeal only to providers and those determined eligible entities to make super-complaints under Clause 150. This would significantly narrow the eligibility requirements for appeals. For appeals against Ofcom notices we assess that the broader, well-established standard in civil law of sufficient interest is more appropriate. Super-complaints fulfil a very different function from appeals. Unlike appeals, which will allow regulated services to challenge decisions of the regulator, super-complaints will allow organisations to advocate for users, including vulnerable groups and children, to ensure that systemic issues affecting UK users are brought to Ofcom’s attention. Given the entirely distinct purposes of these functions, it would be inappropriate to impose the eligibility requirements for super-complaints on the appeals system.

I am also concerned about the further proposal in Amendment 245 to allow the tribunal to replace Ofcom’s decision with its own. Currently, the Upper Tribunal is able to dismiss an appeal or quash Ofcom’s decision. Quashed decisions must be remitted to Ofcom for reconsideration, and the tribunal may give directions that it considers appropriate. Amendment 245 proposes instead allowing the Upper Tribunal to

“impose or revoke, or vary the amount of, a penalty … give such directions or take such other steps as OFCOM could itself have given or taken, or … make any other decision which OFCOM could itself have made”.

The concern is that this risks undermining Ofcom’s independence and discretion in applying its powers and issuing sanctions, and in challenging the regulator’s credibility and authority. It may also further incentivise well-resourced providers to appeal opportunistically, with a view to securing a more favourable outcome at a tribunal.

On that basis, I fear that the amendments tabled by the noble Lord would compromise the fundamental features of the current appeals provisions, without any significant benefits, and risk introducing a range of inadvertent consequences. We are confident that the Upper Tribunal’s judicial review process, currently set out in the Bill, provides a proportionate, effective means of appeal that avoids unnecessary expense and delays, while ensuring that the regulator’s decisions can be thoroughly scrutinised. It is for these reasons that I hope the noble Baroness will withdraw the amendment.

My Lords, I am grateful to the Minister. I will take that as a no—but a very well-considered no, for which I thank him. I say to the noble Lord, Lord Clement-Jones, that we certainly would not wish to make him feel uncomfortable at any time. I am grateful to him and the noble Baroness, Lady Kidron, for their contributions. As I said at the outset, this amendment was intended to probe the issue, which I feel we have done. I certainly would not want to open a can of worms—online, judicial or otherwise. Nor would I wish, as the Minister suggested, to undermine the work, efficiency and effectiveness of Ofcom. I am glad to have had the opportunity to present these amendments. I am grateful for the consideration of the Committee and the Minister, and with that I beg leave to withdraw.

Amendment 242 withdrawn.

Clause 148: Appeals against OFCOM decisions relating to the register under section 86

Amendment 243 not moved.

Clause 148 agreed.

Clause 149: Appeals against OFCOM notices

Amendments 244 to 250 not moved.

Clause 149 agreed.

Amendments 250A and 250B not moved.

Clauses 150 to 153 agreed.

Clause 154: Consultation and parliamentary procedure

Amendments 251 to 254 not moved.

Clause 154 agreed.

Clause 155: Directions about advisory committees

Amendments 255 and 256 not moved.

Clause 155 agreed.

Clause 156 agreed.

Clause 157: Secretary of State’s guidance

Amendments 257 to 259 not moved.

Clause 157 agreed.

Amendment 260 not moved.

Clause 158 agreed.

Clause 159: Review

Amendments 261 to 263 not moved.

Clause 159 agreed.

Amendment 264 not moved.

Clause 160: False communications offence