Select Committee on Constitution Minutes of Evidence


Memorandum by John Swift QC, Rail Regulator 1993-98

INTRODUCTION

  My evidence to the Select Committee follows the sequence of the Questions set out in the Call for Evidence. As requested I have included a short summary of the main submission, which follows this Introduction. Annex A contains a brief CV and summary of the activities of the office of the Rail Regulator between 1993 and 1998. as a result of my taking on that task I have retained a particular interest in the transport sector and the responsibilities of the Government, the Strategic Rail Authority and the Regulator but my evidence is directed to the issues more generally.

  It may assist the Select Committee to know where I stand on the broad issue of the accountability of the Regulators to Citizens and Parliament. I believe that the citizens of this country, whether or not they choose to participate actively in the democratic process, benefit directly and substantially from the statutory duties placed on regulators to promote or protect their interests. Just as the purpose of the new competition laws is to drive out anti-competitive and exploitative conduct to the benefit of competition and of consumers so the earlier structure based on direct enforcement of licences to promote the public interest has aimed at a similar objective.

  Secondly, I believe that the constitutional innovation of the mid 1980's, to separate the regulator from the Whitehall machine and to devolve decision making powers on a person not subject to Ministerial control and not directly accountable to Parliament, needs to be rethought: not in the sense of subordinating the regulator to the Secretary of State, for that would imperil independence, but to recreate a more direct relationship between Parliament, to whom the regulator owes his existence and his statutory powers, and the regulator.

  The obligation to make an Annual Report to the Secretary of State, to give evidence to a Select Committee on some matter of concern to that Committee, to conduct the business of the Office according to the highest standards of public administration and to be subject to judicial review for all decisions affecting the rights of individuals and corporations are essential aspects of accountability. But there is no clearly stated constitutional status for a regulator, unlike the judiciary, and unlike the duty of a Minister to account to Parliament for his own conduct or that of his department. Yet the regulators are part of Government.

  In 1882 the great constitutional historian F W Maitland said that "we are becoming a much governed nation". Regulation is part of the process of government, not simply because Government has transferred powers which had in the past and would otherwise have been exercised by Ministers but because any form of regulation which takes effect other than through the application of general legislation is based for its legitimacy on some form of contract between undertaking and Government. The licence to engage in conduct otherwise prohibited is such a contract and so long as the Government controls entry into a sector of the economy by the grant of licences regulation in one form or another will be part of Government.

  Power in few hands is a danger to the democratic process and the political economy. And regulators with much power and little accountability can do grievous harm to the body politic and to the industries they are regulating. The motive of consumer protection is excellent in any organisation; but its pursuit as a single minded goal can unless handled with considerable care upset the applecart and deprive the regulated bodies of the kind of protection which they themselves need when they shoulder the burden of securing the investment in necessary goods and services. These concerns are not new. They surfaced in the early 1990's. but they will not go away—precisely because the position of the Regulator is one that demands continuing scrutiny.

  I therefore welcome the opportunity of giving evidence to the Select Committee. I believe that there is scope for improving accountability without adverse effect on the efficiency with which regulators carry out their statutory functions.

SUMMARY OF MY EVIDENCE ON THE ISSUES RAISED BY THE SELECT COMMITTEE

    —  The independent regulator was an innovation in the mid 1980's brought in to play a part in the control of performance of the privatised utilities when there was serious concern as to whether the State had made a grievous error in transferring responsibility for the performance of vital parts of United Kingdom industry into private hands.

    —  Since the mid 1980's three developments stand out. First, the concept of independent regulation is accepted as an important part of the legal system and the economy: the regulator's duty to pursue the public interest rather than merely to arbitrate as between conflicting private interests is an important constitutional safeguard in the control of market power. No one seriously wants to return to the grey area of Whitehall regulation, fudge and incompetence.

    —  Second, Government disengagement from the day to day business of controlling and supervising the utilities has proceeded in parallel with Government enthusiasm for new legislation designed to bring the disciplines of the market economy into industries formerly characterised by massive monopoly.

    —  Third, and connected with the second, the liberalisation of most sectors of the economy, in which the State no longer prohibits entry, and the enactment of far reaching competition laws calls in question the traditional role of the regulator as first established, as the guardian and enforcer of the licence granted by the State as a permit to enter.

    —  The issue of regulatory accountability has been a constant theme and a source of continuing concern—not so much to the constitutional theorist but to those genuinely concerned as to the substantial power and discretion conferred upon the "unelected" individual and to his ability, if he gets things wrong, to do serious damage to the interest of consumers and those he regulates.

    —  The fact that as a result of the sweeping changes to industrial structures and to competition law the areas of real monopoly power in single hands are relatively few takes some of the edge of this concern—but the emergence of the mighty OFCOM and the critically important role of OFGEM in the energy markets do not suggest any dwindling of resources in this area of Government. OFWAT remains as the regulator of the monopolies in water and waste disposal. The Office of the Rail Regulator shares aspects of regulation with the Strategic Rail Authority but is still active in its tenth year. And the Civil Aviation Authority exercises its statutory powers under the Airports Act 1986.

    —  It cannot therefore be denied that accountability of regulators continues to be a live issue from the point of view of constitutional legitimacy and economic power.

    —  And the principal reason is that the independence of the regulator, which is a necessary defence against usurpation of powers by the Executive, is itself a privilege. A regulator cannot claim at the same time independence and immunity from accountability. Otherwise we have a "democratic deficit" which is not remedied by conduct however, much the regulator improves in the areas of competent administration, good judgement in decision making, and due process, including transparency.

    —  Nor can accountability within a democracy be defined as limited to a duty to give reasons and explain. The essence of accountability is answerability.

    —  Thus accountability to the public through a greater degree of participation by Parliament in reviewing the objectives, budgets and performances of the regulators in the promotion of the public interest may be seen as a necessary step in the direction of justification of independence without hazarding it.

"BACKGROUND"

  1.   What are the legal bases for regulators: what are the nature of their powers and how do they exercise them; how could their powers be revoked; from where do they obtain their financial and administrative support?

THE LEGAL BASES AND THE NATURE OF THE POWERS

  Regulators are creatures of statute. Their powers and duties are set out in the relevant statute by which their office is established. Thus the startling innovation which conferred powers on an elected individual with no accountability to the Minister who appointed him[1]to regulate the affairs of a former nationalised industry was fully debated in Parliament and approved; and not just for the telecommunications industry where it was introduced in 1984; but also in the other statutes which were enacted at the time of the privatisation of the gas, electricity and water industries and, in 1933, in the Railways Act.

  The schema of each of the statutes is similar. A set of objectives is listed which may be broadly defined as the "public interest". The regulator must exercise his powers in the way in which he thinks is best calculated to promote the public interest. He can influence the outcome by enforcing the terms of the licence granted to the "privatised" undertaking or through taking action to get the licence modified. And he has the power to grant new licences.

  Under this schema the role of the Secretary of state is distinctly subordinate to that of the regulator. While the objectives are largely common to the Government and the Regulator the powers are generally limited to their exercise by the regulator, at least after the Government has determined what the appropriate post privatisation structure is going to be.

  This separation of powers as between Government and regulator has been critical to the way in which the "monopoly" has been controlled: in terms of the application of the price control formula and enforcement of prohibitions against discrimination. But in the critically important area of liberalisation of markets the relationship is more shared, obviously so where primary legislation is required to change the post privatisation structure. Nevertheless regulators have in general been in the forefront of promoting sustainable competition and elevating it as a public interest objective and a key priority for the regulators. The retail energy market, for instance, has been totally transformed since the first post privatisation compact between Government and the then licensees.

REVOCATION OF POWERS

  Primary legislation is required for any revocation or diminution of powers. It would be a serious breach of the independence of the regulator were any such revocation or diminution to be sought through delegated legislation. More generally Ministers baulk at the idea of introducing even through primary legislation a duty to act in accordance with the requirements of the Minister—the wording appropriate to an executive agency but not to a regulator.

  Indeed in the Railways Act 1993 the regulator was placed under a duty for a period of three years from the commencement of the Act to take into account any guidance from the Government in respect of the exercise of his powers—the guidance was indeed issued, and in a highly prescriptive form, but the governing verb was no more and no less than "to take into account"—which I did, no more and no less. The Government, or at the very least its civil servants, were concerned that once appointed the Regulator could exercise his powers to frustrate the whole of the privatisation process despite the fact that that was the purpose of the statute under which the regulator had been established. I mention the matter if only to demonstrate the acute concern felt by many in Whitehall as to the transfer of power from Ministers to regulators on issues affecting the running of the economy and in areas of deep concern to consumers. I am sure the feelings have not gone away. But in my experience Ministers were scrupulous in respecting the independence of the regulator.

FINANCIAL AND ADMINISTRATIVE SUPPORT

  Subject to obtaining through Parliament his "Vote" the Regulator has complete discretion as to whom he employs. Ordinarily a Regulator's Office consists of employees of the office, and thus civil servants since the Office is one held under the Crown, other civil servants on secondment and outside advisers. Although the Treasury takes responsibility for approving or rejecting the regulator's budget, all expenses are covered from levies on the licensees.

  The regulator is the "accounting officer" for the Office and subject to the scrutiny of the national Audit Office and the Public Accounts Committee for the stewardship and use of the funds deployed.

  I know of no concern that the Treasury has deliberately withheld funds so as to render the functions of any of the regulators less effective. There is obviously a concern as to "value for money" as with any regulatory function but, so far as I am aware, no systematic means of measuring it.

2.   By whom and how is the continuing need for regulators measured: how is their role changed or ended?

  I can answer the second part of the question more easily than the first. On the first I would say only that so long as the Government retains control over entry to utility markets through the grant of licences, the Government must retain the means of ensuring the accountability of the licensee to deliver what the State is expecting. That is an obvious role for a regulator—to bring the functions back within Whitehall would be to risk again "command and control" by the executive with all the attendant problems which led to the failure of the Morrisonian corporation. But it remains an issue for Government.

  On the second issue their role is being profoundly changed through the legislative changes being brought about by the Competition Act 1998 and the Enterprise Act 2003.

  The Competition Act provides for concurrent exercise of powers of the OFT and the utility regulators. The convention is that in the relevant utility sector the Regulator, and not the OFT, will exercise the powers conferred by that Act to investigate cases of anti competitive agreements and abuse of dominant position. The issue is this: what are the criteria, which the regulator will apply in determining whether to exercise Competition Act or licence enforcement powers? If the perceived need for independent regulation in the mid 1980's stemmed from the absence of sufficient powers under the Competition legislation is must surely be the case that regulation in the old sense now has to be reserved to those cases where the provisions of the Competition Act are plainly unsuitable. The issue of price control to remedy actual or potential excess prices is a particularly sensitive issue. Despite the fact that EU law prohibits an abuse of a dominant position and that such abuse may consist of unfairly high prices regulators appear reluctant to go the Competition Act route and prefer the more conventional route of licence enforcement or amendment. One effect is that the licensee has no right of appeal on the merits in the case of an adverse finding.

  There will undoubtedly be "public interest" issues arising from the conduct of a regulated firm which fall outside the prohibitions of the Competition Act but the constitutional question is whether those issues are so worthy of attention as to require a full apparatus of regulatory control in each of the utility areas.

  A final point on the second issue relates to the growing influence of EU law on the status of the domestic regulators. To take telecommunications as an example the incoming EU directives, in force in the United Kingdom since March 2002 and taking full effect in July 2003, prospectively repeal the entire group of sections of the Telecommunications Act dealing with licence enforcement and modification. What has stood since 1984 is now subsumed within the EU directives and the position of OFTEL is transformed into that of a National Regulatory Authority acting within the scope of the incoming directives.

  In summary, roles are changing and ending, as a result of major shifts in legislative direction over the form of control over dominant firms and the importance of encouraging greater liberalisation throughout the EU in the former state owned utility markets.

3.   Who are the members of regulatory bodies; how are they appointed; are they adequately represented; do Nolan principles operate?

  These questions are directed to the situation as it operates today and are, essentially, for Ministers and the current regulators to answer.

  The position that prevailed up to and including my appointment as Rail Regulator was that the Secretary of State, in my case Transport, advertised the job; there was a competition; a panel of civil servants and advisors interviewed applicants and came to a short list of two; that was followed by an interview with the Secretary of State, Mr John McGregor, and the Minister of State, Mr Roger Freeman.

  At that time the individual was the regulator—there was no question of the appointment of a Board to exercise collective responsibility. The buck really did stop with us as individuals, no matter what form of delegation or internal processes of consultation we used. From the outset I thought that we should establish a group which would be responsible for de facto decision making—in part to encourage my new colleagues, who were the employees of my Office, to move from their traditional civil servant advisory role to decision making roles but also to bring in some outside experience on transport, economics, consumer affairs and general expertise.

  Thus Sir Wilfred Newton (former Chairman of London Transport), Professor Stephen Glaister (now of Imperial College, London) Ann Foster (formerly Director of the Scottish Consumer Council) and General Sir Thomas Boyd-Carpenter came, at my request, on to a new "Council of the Office of the Rail Regulator" which served until I left office as the main decision making unit within the Office of the Rail Regulator, though its members were all anxious to remind me that the Council was advisory only and that the Rail regulator himself was the decision maker (and any other person to whom decision making was properly delegated). I never regretted that decision. I found their advice and constructive criticism invaluable.

4.   What are regulators set up to achieve; to what extent do regulators achieve their purposes without adverse consequences; how is their effectiveness assessed?

  Regulators should exercise their powers within the four corners of the statute to achieve, in so far as they can, the public interest objectives set out therein. Subject to that broad objective I believe that "economic regulators" called on to monitor and where appropriate impose controls on the behaviour of licensees must act in order to promote economically efficient outcomes.

  Inevitably a large amount of the time of the economic regulators has been spent on the periodic price reviews of the utilities. In this area I believe that sound and consistent economic principles have been applied—and the Competition Commission has not only been broadly supportive of the economic analyses of the regulators but has provided a most authoritative frame within which the regulators can act.

  Looking at regulation in the round over the almost 20 years since its introduction I would say that little adverse effect can be identified—either in terms of consumer welfare or licensee failure. The promotion of competition has gone ahead without debilitating effect on the financial position of the incumbents. In terms of sophistication of economic analysis and the use of financial tools of measurement of cost capital there will always be a risk that the economic theory of today is abandoned tomorrow. The Competition Commission has a critically important role to apply in that area; indeed the disciplines which it has applied to the regulation of the utilities are now being transferred to other parts of the economy where there is a perception that high profits may damage the interest of dependent users.

  The assessment of the effectiveness of regulators has to be objective and conducted by reference to the statutory objectives. In brief is there a casual link between the advancement of the public interest and action taken by the regulator? Whether the public interest is measured by the introduction of sustainable competition in place of monopoly, by price controls which enable the undertaking to increase profitability but only through major improvements in efficiency, by improving the quality of service standards the regulator must be in the thick of things to ensure he makes his contribution but not so dominant in the process that he assumes the mantle of the Executive, paralysing innovation and creating a climate of expectancy or, worse, fear of hostile action if the industry fails to deliver the regulator's goals. In regulation the question is always—how do we get the right results through the right way? Effectiveness is as much to do with the second as the first—because ultimately the industry must deliver the results for the benefit of the users and the economy in general.

5.   To what extent are regulators both prosecutors and juries on an issue; what rights of appeal are there against decisions made by regulators?

  A regulator is in no different position from a competition authority such as OFT. The regulator has to carry out an investigation into whether there is a possible breach of a licence, or a need for licence amendment, and then make a decision. The OFT, or the regulator wearing his Competition Act cap, has to carry out an investigation into whether there is a breach of the Chapter I or Chapter II prohibitions of the Competition Act and make a decision. Each may act on his own initiative or following a complaint. The EC Commission is in a similar position.

  The differences lie in the nature of the appeal. Appeals from regulators are by way of judicial review: in other words a process of review by the High Court on the normal grounds for a challenge to a decision taking effect in public law. Appeals from the OFT, or the regulator exercising Competition Act powers, go in the first instance to the Competition Commission Appeals tribunal and are in the nature of a rehearing: appeals then lie to the High Court on a point of law.[2]

"ACCOUNTABILITY"

6.   How are regulators held to account by Parliament; what other accountability do regulators have to auditors, Government departments or other public bodies?

  Parliament has conferred a special status on the regulators, at least under the privatisation statutes by giving them security of tenure during the period of their appointment. Once appointed they can be dismissed only on the grounds of serious misconduct or incapacity—an immunity from Government discretionary action if not from Government pressure.

  A regulator who acts outside the four corners of the statute or acts irrationally or without due process is, of course, accountable to the courts. Indeed the "judge at your shoulder" acts as an important discipline on the decision making process.

  However, judicial review is limited in its scope and does not extend to an appeal on the merits. A regulator whose decisions cannot be overturned on the grounds of irrationally is in a better position than that afforded to the OFT under the Competition Act.

  A regulator is accountable to Parliament in the sense that he must answer a request from either House to appear before one of its Committees and give evidence. He derives his authority from statute and in my opinion cannot lawfully resist such an invitation or summons. That is accountability in the sense of explaining the reasons for a decision, whether or not the call comes from the Public Accounts Committee following a report from the NAO or from the Transport Committee or indeed from this Committee. It is not accountability in the sense of being answerable to Parliament for the discharge of functions since there is no constitutional convention whereby Parliament sets the rules by reference to which the regulator should be judged.

  Indeed, absent charges of incapacity or serious misconduct or misleading either House it seems to me that Parliament should also allow a substantial measure of discretion to the regulator on how he discharges his statutory duties while making it clear if it thinks fit that criticism is appropriate.

  Where I believe that there is scope for greater accountability in the sense of being answerable to Parliament is in respect of the Vote and the assumptions underlying the expenditure of funds. A critical appraisal of the budget in terms of the regulator's objectives followed by an assessment of performance by reference to those objectives would seem to me to fill a gap in the present system.

7.   How are regulators accountable to those whom they regulate; what is the impact of regulation on the economy; how transparent are their methods of working?

  Again I split accountability into aspects of answerability and a duty to explain. A regulator is not answerable to the licensee otherwise than through legal process and on grounds recognised by the common law; essentially errors of law in the application of the statute, irrationally, lack of procedural fairness and lack of proportionality.

  But there is plainly a duty to explain to the regulated firm what are the objectives of the regulator, how they relate to the business of the regulated firm and what the regulated firm is expected to do. In a sense this is pre-decision good practice and goes to the issue of transparency.

  Regulators differ in the distance they keep between themselves and the regulated firm. But they must abide by minimum standards of clarity of communication so that the regulated firm can know where it stands and to what if anything it can object and make representations. The licence, of course, representing the contract between the State and the regulated firm provides the licensee with the basic right of conducting its business without further regulation. If the regulator proposes a licence amendment with which the regulated firm disagrees the matter has to go to the Competition Commission for separate review and report back to the regulator.

  The perceived lack of transparency was a serious issue in the early 1990's prompting a full inquiry by the NAO into the working of the four utility regulators. There had been a "Whitehall" type reluctance among some regulators to disclose what they had in mind in case it might be thought to be fettering their discretion. This laudable attempt to keep within the bounds of administrative law had unfortunate results in bringing in unpredictability and thus a high degree of regulatory risk. The concern was such that in 1993 an additional duty was placed by Parliament on the Rail Regulator to enable the regulated firm to plan for the future with a reasonable degree of assurance.

  I believe that transparency in the process of consultation and in the giving reasons for decisions is now regarded by regulators as a necessary feature of good administration and does not require legislative change to require or enforce it.

  Question 7 also raises questions as to the impact of regulation on the economy. I believe that taking the utilities together the effect of regulation has been to improve productive efficiency at the level of scale monopoly and in a shared and relentless drive to liberalise markets bring the benefits of competition in innovation, price competition and choice. The macro economic effect in taking the burden of financing from the state and transferring it to the private sector, including the US, and European corporations and institutions, also appears to have been positive, when combined with regulation to ensure that users pay no more than the appropriate cost of capital and that capital spend is audited by the regulator. In brief I believe that generally this has been a substantial UK exportable success.

8.   How are regulators accountable to the public otherwise than through Parliament; what opportunities do the public have to express particular concerns to regulators; how do regulatory bodies relate to their associated consumer watch dogs?

  Regulators are not and in my view should not be accountable in the sense of answerable to the public at large or to individual citizens save to the extent that there is some cause which an individual or class of individuals wishes the regulator to take up on their behalf and he refuses: in those circumstances the citizen has the right to apply to bring proceedings for judicial review or to bring proceedings before the Competition Commission Appeals tribunal requiring him to take action, assuming he has the appropriate legal interest.

  However, in the less legal sense of accountability, including the duty to explain, I believe that good regulation requires full disclosure to the public of matters of regulatory concern. Regulators have to draw up priorities but I believe that "visibility" is a priority so that the regulator is seen to be on as it were the right side of the fence in the control of monopoly power. At the same time the regulator is not proxy for the Consumers Association or other body set up for the prime purpose of representing the interests of consumers: the regulator has to balance various statutory objectives and arrive at what he believes to be the right decision even if that proves unpopular with the public at large or with particular individuals.

  From my own postbag I know that the public valued the opportunity of registering with the regulator their concerns over railway matters generally and their own experiences in particular. They formed a valuable source of intelligence and all letters were responded to within a tight timetable which we set for ourselves.

  Between 1993-98 I had the responsibility for appointing members of the various rail consultative bodies throughout Great Britain. This was an important part of the statutory responsibilities for the users committees had to achieve credibility within their own areas. We maintained close relations with them, financed them but left them complete autonomy in what they said and to whom. After 1998 the Secretary of State, Mr John Prescott, decided that they should form part of the responsibilities not of the Rail Regulator but of the Strategic Rail Authority, the executive agency which took over the functions of the Franchising Director, where they now reside. That change was made through the Transport Act 2000. I have no knowledge of how well they fare or how they now relate to the Rail Regulator.

9.   How effective is public consultation by regulators; what opportunities do the public have to contribute; to what extent do the public make use of these opportunities?

  These are questions which the current regulators are better able to answer, but from my experience my Office brought the consultation papers to a wide cross section of the public. The internet will have made a huge difference in the speed of communication to and from the regulator. Plainly the degree and liveliness of the response depended substantially on the issue in question; the more direct concern to the public the greater the interest. And railways always tended to have everyone's interest.

10.   To what extent do the needs or concerns of the public guide the work of regulators; are regulators instruments of Government or representatives of the public?

  The answer to the second part of the question informs the first. Regulators are instruments not of the Executive but of the State. That is why they are office holders under the Crown. But they are involved in the business of government in the sense that they and not the executive are responsible for ensuring that those licensed to supply essential facilities to consumers and business do so efficiently and at the appropriate cost to users, and where necessary taxpayers.

  Nor are they representatives of the public or tribunes of the people: certainly they must put consumer welfare at the top of the agenda in their priorities but they must balance their various statutory objectives and implement the purpose of the legislation. To be the representative of one group rather than another defeats the concept of independence: as I said before to that extent the regulator is not answerable to the public at large but he must take their interests into account and look for consumer advantage in every decision which he takes.

  Moreover, the concerns of the public as they are revealed through the post bag, email and at public meetings, even in TV programmes, inevitably and rightly influence the regulator. The events of the day are important and often reveal the inadequacies of the knowledge of the regulated companies about the quality of service they are offering to the public. Good administration should be responsive to those concerns and act upon them.

11.   How independent are regulators of Government? What factors do or might compromise their independence?

  Independence of the regulator survives so long as and only so long as the actions of the regulator do not produce results which are at odds with what a democratic system expects. A regulator espousing the cause of independence but behaving in a manner which rattles markets, including capital markets reduces investment, raises regulatory risk and produces nothing for consumers and effectively abuses the system. One person's conduct can threaten the structure of independent regulation which thrives on causing industry to perform better than it otherwise would to the benefit of users and consumers and indeed to the State.

  Independence is therefore a privilege to be used with the greatest care, precisely because substantial power to control has been transferred by the State from the Executive, which, I think, remains somewhat jealous of the loss of its legacy and will look for ways of regaining it.

  Therefore a regulator who takes no account of Government wishes or concerns as to the future of "his" industry is acting irresponsibility. Regulatory independence is not tainted by discussion or consultation with Government: rather it is enhanced through greater knowledge of the concerns of those elected to represent the public.

  Concluding I would add that throughout my five years in office I can recall no instance of the Government seeking to put pressure on me to take one decision rather than another. Almost 20 years on from the innovation of its new entry into government, independent regulation has settled down to be part of the democratic structure—but with room for further improvement in performance and accountability.


1   A concept which the delegation from the Ministry of Transport of the People's Republic of China to the Office of the Rail Regulator found difficult to comprehend (witness's recollection). Back

2   The Courts are reluctant to disturb the findings of regulators or the Competition Commission on substantive economic issues. This is in accordance with well established legal principles that so long as the regulator applies the law correctly in the sense of understanding the meaning and purpose of the statute the weight that the regulator gives to the evidence and his findings on the facts are matters for him to determine, absent some glaring error of reasoning which goes to the substance of the decision. Thus there has been no successful appeal on the substance against the findings of the Competition Commission (formerly the Monopolies and Mergers Commission). OFFER and the NI Electricity Regulator have both been judicially reviewed successfully but essentially on matters of the proper construction of the relevant statutes. Regulated companies aggrieved by proposed licence amendments, usually in connection with new price controls, continue to exercise their rights to have the matter determined afresh by the Competition Commission: recent references have been made in water and in mobile phones (price controls) and in electricity generation (a proposal for a good behaviour licence). The Competition Commission Appeals Tribunal, which operates under procedures derived from the Court of First Instance at Luxembourg and is not confined to "judicial review", effectively rehears the case on the merits as a full appellate body. Back


 
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