Lord Moylan (Con)

My Lords, we come now to a debate about the mechanics of the Bill, and it involves a considerable amount of detail. We are focused on the purposes of Clause 1 and 2. The purpose of Clause 1 is to give the Secretary of State the power to make regulations about the consumer protection of air passengers. As we know, those regulations have until recently been made by the European Union. It is right that the Secretary of State should be given those powers. The Secretary of State is accountable to Parliament and to the public, which is all to the good. We object to the fact that so many of those regulations are to be made by the negative procedure. I know that at Second Reading, the noble Lord, Lord Tunnicliffe, said that it did not matter either way, but it does matter to us as Members of your Lordships’ House that statutory instruments of importance, especially those making regulations to do with consumer protection, should come forward as instruments under the affirmative procedure. We have amendments to that effect in this group. As things stand, the only instruments that would come under the affirmative procedure, as the Bill is written, would be those creating criminal offences. The Government, at least, accept that. But the others, which are matters to do with consumer protection, would be under the negative procedure. That is not good enough. The second question relates to who is to do the enforcement and how. This is more to the thrust of Clause 2. Clause 2 itself is very short, but it enacts Schedule 1, which in terms of paper takes up about half the Bill. It is a very lengthy schedule, which is why this group might not be as short as one might hope. Clause 2, with its schedule, splices—I think that is the right word—the Civil Aviation Authority into the Digital Markets, Competition and Consumers Act, which gives the Competition and Markets Authority its power to engage as a regulator with British businesses, looking at matters to do with competition, monopolies, abusive behaviour and so forth. It is interesting that reference was made earlier in the debate to the case being pursued at the moment by the Competition and Markets Authority against a British airline for charging families a fee in order to sit together, particularly a fee that affects younger members of the family under the age of 16. The noble Lord said he was not going to comment on the merits of that case, and understandably; nor am I, but it is interesting that that case, which is clearly a consumer protection case, is being pursued by the CMA. We are going to have the CAA spliced into the Bill as a parallel regulator. We will have two regulators, with broadly similar powers, regulating the aviation sector. Anyone with even the remotest experience of low-level local government, such as myself, knows that one of the principles of enforcement in British law is that, for one crime, there is one prosecutor, so you cannot be prosecuted twice or pursued twice by different prosecutors for the same offence. That applies to traffic offences. They are enforced by the local authority, as parking generally is, or, if they are moving traffic offences, then, depending on the area—I am speaking of London now, where this is true, but it is not true of the rest of the country—they are enforced by either the local authority or the Metropolitan Police but not both, for the very good reason I have explained. It is simple. Why is the CAA being spliced into this structure—the architecture of the Bill—as a parallel regulator, and how will the two work together? Well, the Bill has an answer to that: they will work together because the Secretary of State is given powers to sit on top of this Tweedledum, Tweedledee structure and decide—there is no guidance given and nothing explained as to how he will decide—how to co-ordinate the two. One could hardly imagine a more bizarre structure, a sort of pushmi-pullyu horse with two people inside it, and how they will work together. I do not have a solution. My amendment simply removes one of them from the structure and leaves it to the other; I suspect that that is not a wholly satisfactory solution, but my amendment is for the purpose of provoking this debate. But it is wholly unsatisfactory that the Government are proposing this architecture. I think it is for the Government to come forward with something workable that satisfies the Committee that they are actually able to deliver this in a way that will work. At the moment, it will not. There are amendments from my noble friend Lord Grayling, which I have signed and which I am sure he will speak to himself shortly, but I have further amendments in this group that relate to the enforcement powers. According to the Bill, the way the Civil Aviation Authority will work if it has to take an enforcement action is that it will issue a notice to the miscreant airline or whatever operator it is that comes within the scope of the Bill. That is perfectly all right, but there is no appeal built in against the notice. The only way in which somebody who disputed the notice could appeal against it, as far as I can see, is by way of judicial review, which the Civil Aviation Authority’s decisions are subject to. You would have to proceed to judicial review, which is an astonishingly heavy and wasteful, time-consuming and expensive process, when the Bill is clearly calling out for some sort of intermediary step, tribunal, mediator or body that can sort out disputes where the two are not in agreement and where it is believed that the Civil Aviation Authority has not conducted itself properly or in a way that is reasonable.