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.
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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.