(IV) APPEALS |
193. Clauses 140 to 142 and Schedule 7 make provision
for appeals against decisions of a regulatory character (as opposed
to decisions of a "legislative or quasi-legislative nature")
made by OFCOM or the Secretary of State under Part 2 of the draft
Bill, in other words relating to networks, services and the radio
appeals are to be determined on their merits. A further appeal
can be made to the Court of Appeal or, in Scotland, to the Court
of Session, but on a point of law only.
These provisions seek to give effect to the requirement of Article
4 of the Framework Directive to establish "effective mechanisms"
for appeal against regulatory decisions to "an appeal body
that is independent of the parties involved" and which "shall
have the appropriate expertise available to it to carry out its
194. The draft Bill proposes that the appeal body
to hear appeals on merits be the Competition Appeal Tribunal (CAT),
a new body to be established under Part 2 of the Enterprise Bill.
This tribunal, unlike the existing Competition Commission Appeals
Tribunal, is to be legally and operationally separate from the
Derek Morris, the Chairman of the Competition Commission, while
supporting the proposed role for the CAT in respect of SMP issues,
for example, called into question whether that body would have
the appropriate expertise available to it in order properly to
consider appeals about price controls.
He explained that this was because the expertise developed on
price regulation by the Competition Commission, which handles
such appeals for other sectors, would not be available to the
CAT, since that body will also be hearing appeals from the Competition
Morris argued that giving price control appeals to the CAT when
it lacked relevant expertise on its staff would be "disastrous".
He proposed accordingly that price control appeals under Part
2 be heard by the Competition Commission, thus aligning the arrangements
with those for other markets subject to sector-specific regulation.
195. The Competition Commission Appeals Tribunal
evidently considers that its successor body will combine wide
experience of appeal procedures with a capacity to ensure appropriate
expertise is available to it, both from its membership and from
its ability to appoint experts to advise it on particular issues.
The borderline between SMP appeals, for example, and price control
appeals may not be easy to draw. Article 4(2) of the Framework
Directive prescribes that, where the appeal body is not judicial
in character, its decisions shall be subject to review by a court
or tribunal; it is important for the Government to clarify whether
judicial review would comply with this requirement.
196. Derek Morris made the point that there is no
requirement for an appeal body under Article 4 of the Framework
Directive to be judicial in character, provided that written reasons
for a decision are always given.
The Government agreed that the proposal for price control appeals
to be heard by the Competition Commission was not "at first
sight incompatible with the Directives" and Patricia Hewitt
confirmed that the Government was consulting on the matter.
The new framework of sector specific powers established in
Part 2 of the draft Bill will require the body or bodies hearing
appeals to secure appropriate expertise and bear in mind the specific
characteristics of the powers being exercised. Provided that it
would not entail a further appeal on merits, we see a case for
price control appeals to be heard by the Competition Commission.
197. A major theme that emerged from our evidence
was the potential for the swiftness, effectiveness and credibility
of economic regulation to be blunted and undermined by a prolonged
NTL saw one possible solution in a "leave to appeal"
procedure to weed out vexatious appeals.
The most common remedy proposed was a specific time limit in the
Bill for appeals.
Energis specifically proposed a limit of one month for bringing
an appeal and a further three months for the conclusion of the
appeal. BT agreed
that such a limit might be helpful in some circumstances.
198. We have sought advice as to whether time limits
of the kind proposed would be compatible with Convention rights
and have been advised that in some circumstances a time limit
as short as six weeks has been held to be compatible. We recommend
that the final Bill establish a general time limit of four months
for appeals under Part 2, subject to extension only in specified
and exceptional circumstances. We further recommend that, in its
response to this Report, the Government sets out its opinion on
whether it would be compatible with the EC Directives and Convention
rights either to introduce a "leave to appeal" mechanism
or to give the appeal body powers to increase penalties in cases
relating to enforcement where that body considers the appeal to
have been an abuse of process.
365 EN, para 259. Clause 127 makes consequential provision
with respect to rarely used appeal procedures relating to interference
matters, EN, para 242. Back
EN, paras 262-263. Back
CCAT, pp 1-7. Back
Q 184. Back
Ev 629. Back
Q 184. Back
CCAT, pp 7-8. See also Ev 628, para 1.1. Back
Q 184. Back
Ev 409; QQ 984-985. Back
Memorandum submitted by Energis; Ev 89; Q 223. Back
Ev 58-65. Back
Memorandum submitted by COLT; Ev 62; Ev 89-90. Back
Memorandum submitted by Energis; Q 272. Back
Q 305. Back