Select Committee on Constitution Minutes of Evidence


Examination of Witnesses (Questions 999 - 1019)

WEDNESDAY 12 NOVEMBER 2003

SIR CHRISTOPHER BELLAMY, PRESIDENT AND MR CHARLES DHANOWA, REGISTRAR, COMPETITION APPEAL TRIBUNAL

Chairman

  999. Sir Christopher, thank you very much for being with us this afternoon. We are very pleased to welcome you to this meeting of the Committee. Before we get underway could I invite you to introduce yourself and who you are accompanied by for the record.
  (Sir Christopher Bellamy) Thank you, my Lord Chairman. I am Christopher Bellamy. I am the President of the Competition Appeal Tribunal and this is Charles Dhanowa, the Registrar of the Tribunal.

  1000. Thank you very much. We have the paper that you very kindly prepared for us earlier this year, which was extremely helpful and obviously a number of questions arise from that. Is there anything you would wish to add to that before we get under way?
  (Sir Christopher Bellamy) I wonder if I could just briefly bring the Committee up-to-date with the jurisdiction of the Tribunal as it now stands. We are not a regulator but a judicial body and we hear appeals of one kind or another under three Acts of   Parliament: the Competition Act 1998, the Enterprise Act 2002 and the Communications Act 2003. There is a further appeal on a point of law from our decision either to the Court of Appeal in England and Wales or to the Court of Session in Scotland, or to the Court of Appeal in Northern Ireland. I think we are almost unique as a Tribunal in covering all three domestic jurisdictions. The matters we deal with are not devolved matters under the various devolution statutes. It may be of interest to compare the way that appeal rights have developed under the three Acts of Parliament that I have just mentioned over the past five years. The first Act, the 1998 Competition Act, is in some ways the most restricted. It has a list of appealable decisions that can be appealed when the OFT and other regulators have taken decisions. We have had a certain amount of difficulty in some cases in determining whether or not what is being appealed is in fact an appealable decision on the list, particularly where complainants who have had complaints rejected have sought to appeal to the Tribunal. In some cases we have been able to find an appealable decision but in other cases not. The next Act, the 2002 Act, is rather wider as far as standing is concerned. Any person aggrieved can appeal to the Tribunal against decisions by the Competition Commission, the Secretary of State or the OFT, but it is an appeal by way of judicial review rather than a full appeal on the merits. The last Act, the 2003 Act, is the widest of all. Any person affected can appeal to the Tribunal and it is a full appeal on the merits. So over the last five years we have had a steady widening of the concept of standing and the width of appeals.

  1001. Thank you very much. That is most helpful. Just in terms of the Tribunal itself, now that you are essentially an autonomous body in terms of your operation and you list in your report the 20 members that you have from distinguished backgrounds which are outlined, could you remind us the method by which they are appointed, do you have any involvement in that and could you remind us how long you have been in post?
  (Sir Christopher Bellamy) The lay members were appointed as a result of a public competition which produced just over 700 applicants for the 20 posts available and followed a public appointments procedure under the control of the relevant Nolan rules, and they serve for a fixed term of eight years which is non-renewable. I was appointed under a public competition and I have been in post under the previous arrangements and the present arrangements since the end of 1999, so for nearly four years now.

  Chairman: Thank you very much.

Lord Acton

  1002. You mentioned there was an appeal on a point of law from the Tribunal. Can you tell us how many appeals there have been on points of law and what the outcome has been?
  (Sir Christopher Bellamy) So far there has been one effort to appeal to the Court of Appeal in England on a point of law in which the Court of Appeal refused permission because in their view it did not involve a point of law. Those are the only appeals that there have been so far. So the answer to your question is none so far.

  1003. You have an immaculate record.
  (Sir Christopher Bellamy) We have not yet broken it yet.

Lord Jauncey of Tullichettle

  1004. I have two matters I would like to ask about. The first is a subsidiary one. You were just telling us about the other members of the Tribunal. Are they full-time or part-time?
  (Sir Christopher Bellamy) They are part-time, my Lord.

  1005. You have told us about the various Acts under which appeals can come to you. Am I right in thinking that appeals under the relevant sections of the Competition Act, that is sections 45 to 47, are restricted to appeals arising out of disagreements between suppliers which could be categorised as restricted of competition, and secondly, actions which amount to an adverse use of a dominant position in the market?
  (Sir Christopher Bellamy) That is broadly right.

  1006. So Chapters 1 and 2?
  (Sir Christopher Bellamy) Yes.

  1007. Those are appeals on merits, is that correct?
  (Sir Christopher Bellamy) That is correct, yes.

  1008. Appeals from you in relation to those matters are on questions of law only, is that not the position?
  (Sir Christopher Bellamy) Yes.

  1009. When we come to the Enterprise Act which you deal with in paragraph 34 of your memorandum, your Tribunal hears appeals in relation to merger investigations, is that right?
  (Sir Christopher Bellamy) Yes.

  1010. And market investigations?
  (Sir Christopher Bellamy) Yes.

  1011. Could you tell me precisely what a market investigation is?
  (Sir Christopher Bellamy) The provisions for market investigations replace the former provisions relating to so-called complex monopolies under the Fair Trading Act 1973 and arise when the OFT has referred to the Competition Commission an investigation of a particular market, fearing that there is insufficient competition in that market. Examples under the previous regime include inquiries into the activities of supermarkets, banks and motorcars. So far there have been no market investigations under the new regime, but I anticipate it is the same sort of thing. In that regard the Commission will investigate and reach a view as to whether certain practices should stop or whatever and then if there was a person dissatisfied they would come to us.

  1012. Am I right in thinking that appeals to you in relation to those matters are effectively by judicial review only?
  (Sir Christopher Bellamy) That is so, yes.

  1013. Are you final on these matters or can there be an appeal?
  (Sir Christopher Bellamy) The same appeals process works for us, it is up to three jurisdictions on a point of law, yes.

  1014. You could be taken to the Court of Appeal?
  (Sir Christopher Bellamy) Yes.

  1015. Is the position that neither under the Competition Act nor under the Enterprise Act matters such as licensing conditions, price limitations, regulations and other matters can come to you?
  (Sir Christopher Bellamy) Those do not come to us under the existing statutes.

  1016. Should they be? We have had a suggestion by Miss Spottiswoode that there might be advantages in that. What would be your view on that?
  (Sir Christopher Bellamy) Whether they should is not a matter for me, it is a matter of policy. Whether they could come to us is a question to which I would give an affirmative answer, I would say they could come to us. The Tribunal is now equipped to deal with those sorts of matters and I would have thought that, having now established quite a solid jurisdiction in economic regulation, one could envisage extending it to those areas that we do not yet cover.
  (Mr Dhanowa) Could I just add that the Communications Act takes the Tribunal into areas where those sorts of issues are involved, economic regulatory issues.

  1017. But you would have the expertise to deal with that. Finally, in paragraph 35 of your memorandum you refer to a right of appeal under the Communications Bill. Is that an appeal on merits?
  (Sir Christopher Bellamy) Yes, it is, my Lord. That has now become the Communications Act since we put this submission in and provides for a right of appeal on the merits and precisely the regulatory situation to which you were just referring.

  1018. I think that the Enterprise Act gives certain rights to third parties.
  (Sir Christopher Bellamy) Yes. The rights were more limited under the first Competition Act 1998. They have become progressively wider under the later Acts and include the possibility of challenging a regulator not only when he has taken a decision but when he has failed to take a decision, which is a further advance if one can speak in terms of advances.

  1. They must satisfy you that they have an interest.
      (Sir Christopher Bellamy) Yes, they must have an interest.
      (Mr Dhanowa) I think the formulations are under the Competition Act that it is either the addressee of the decision or a person with sufficient interest in that decision. Under the Enterprise Act it is any person who is aggrieved by the decision and under the Communications Act, any person affected.



 
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