Lord Vaizey of Didcot (Con)

My Lords, in addressing the amendment in the name of the noble Lord, Lord Clement-Jones, I may increase his stress levels, unfortunately, as I oppose it. This means, I guess, that I am supporting the Government—that is, unless the Government are going to perform a volte-face in the face of the noble Lord’s strong arguments for a merits-based review of any decision reached by the First-tier Tribunal. I do so because it brings back memories of when I was the telecommunications Minister and was, therefore, responsible for Ofcom. At the time, all Ofcom decisions were subject to a merits-based review in front of the Competition Appeal Tribunal, which meant that, in effect, every decision it took regarding broadcasters or telecoms companies was reheard at appeal. As noble Lords can imagine, technical decisions on the charges being levied by wholesale carriers—or, in the case of Sky, the charges being levied on other broadcasters to carry, for example, the Premier League—were extremely complex, and Ofcom faced an army of lawyers deployed by those companies. Without wishing to give away too many confidences—this was 10 years ago, so I do not think it is a matter of national security—Ofcom found itself extremely frustrated by all this. It was costing millions and millions of pounds. It was being used by commercial providers as a delaying tactic, a firepower tactic, almost, in order, understandably, to put off decisions that were not in their commercial favour. I initially resisted Ofcom’s blandishments to say that we should move away from merits-based appeals, partly because I thought that we would just start a whole new process of the courts feeling their way under the new system and would end up with a whole new set of delays as the courts had to make novel decisions under a novel regime. However—one of the great telecom chief executives, my noble friend Lady Harding, has just walked into the Committee right on cue; I do not think, though, that she ever used her firepower in the cynical way that others did against Ofcom—the changes did go through. As far as I am concerned, although I have not done my homework properly, things have settled down into a straightforward process whereby a regulator makes a decision based on the facts and, if that decision can somehow be seen as unlawful by the company in question, it can be judicially reviewed. It must be stressed that removing merits-based appeals would not remove the right of appeal. It seems fairly obvious to me that, as in civil and criminal cases, decisions would be arrived at based on the facts. However, if that decision were somehow so outside the normal judicial process of making a decision and so irrational, as it were—which is what judicial review exists to review—then it could be reviewed. That system should be consistent across regulatory appeals. I cannot necessarily comment on the effective points made by the noble Lord, Lord Clement-Jones, about the clandestine nature of some of the findings, but it may well be that, given the issues to do with cyber security, attacks on critical national infrastructure and so on, some elements of cases must be kept confidential. That is a matter for further debate, perhaps, but I would be extremely concerned if we were to go back to merits-based reviews for regulatory appeals.