The noble Baroness said: In moving Amendment No. 35, I shall speak also to Amendments Nos. 36 and 37. These amendments relate to Clause 8, which concerns the duty to publish and meet promptness standards. The clause requires that Ofcom sets out its policy, keeps the fulfilment of any objectives under review and publishes its success. The intention behind our amendments is to strengthen those requirements so that expectations of Ofcom are clear and there is no room for doubt.
Ofcom is an immensely powerful regulator and accountability will be vital to its success, particularly to its relationship with those supplying or using communications services. Ofcom's reputation as a fair and effective regulator will depend on its ability to be responsive to developments in the industry. Ofcom's expectation that industry stakeholders provide information accurately and promptly is reciprocal. We have all heard examples of problems with regulators taking inordinate amounts of time to process information and reach decisions.
As the noble Baroness, Lady Buscombe, indicated, a great deal of Ofcom's credibility as a regulator will be in its capacitythe noble Lord, Lord Crickhowell, will later deal with these mattersand resources to match the massive advisory power of the various vested interests with which it will have to deal, and the speed with which it is able to deliver satisfactory judgments. Justice delayed is justice denied.
Evidence was given to our committee from those with experience of other regulators of the skills of various vested interests to spin out inquiries. Because regulators were under-resourced that in the end became justice denied. We really want to see the noble Lord, Lord Currie, and his assembled regulators as a kind of Elliott Ness and the Untouchables; people who will strike fear into the hearts of wrongdoers in this sector. We believe that these amendments will give them the necessary discipline so to do.
Lord Crickhowell: Like the noble Lord, Lord McNally, I shall speak to Amendments Nos. 38, 103 and 144, for the reasons he gave. Like my noble friend Lady Buscombe, I believe that this is an important set of amendments. I agree with what she had to say. We in the joint committee thought it was important because of the evidence that we heard from many witnesses about the delays that had taken place before existing regulators. Some telecommunications operators considered that Oftel's decision making is still so slow that there is often no point in complaining to the regulators at all. We were not terribly impressed when we presented these arguments to David Edmonds in the joint committee on 27th May 2002. We asked him whether the provisions of Clause 6, as it then was, would affect his work at Oftel and at paragraph 84 he replied,
In choosing the words of this clausewe did not draft them out of the bluewe thought that the Government had given us a good precedent because they are based on almost identical words in the Competition Act 1998. It is true that the relevant clause in the Competition Act 1998 has never been introduced by the Government. Perhaps one of the questions we should again put to them, as it was put in Committee in another place, is "Why not?" Clearly, there is nothing wrong with the drafting and that clause stands as a guide.
I shall make a couple of references in this context to the debate in Committee in another place on 12th December. The Minister, Dr Howells, in commenting not on this particular amendment but on one in the group dealing with the same point, made this remark about Ofcom:
The Minister in replying in another place said that it would be a great mistake to have time limits for Ofcom because unless analogous time limits were imposed on stakeholders, Ofcom would be in a mess. That is not a happy argument. Yes, of course major stakeholders do from time to time deliberately delay things, but that should not be the reason that lets Ofcom off the hook. Indeed, it is almost an invitation to stakeholders to delay things in the comfortable knowledge that if they do so Ofcom will say, "Well, it's not our fault. It's all those beastly stakeholders who aren't producing their evidence". So I think that is a poor argument.
I finish, as indeed did honourable Members in another place, and Mr Lansley in particular, by referring to the part of the 1998 Act, asking why it has not been implemented and suggesting that it is entirely appropriate that it should apply to the Bill.
The Lord Bishop of Manchester: I intervene briefly to support Amendment No. 35. It is not a good idea for Ofcom to have an objective placed upon it that would be difficult to meet because of its imprecision. It does not meet all the requirements of being what these days is often referred to as "smart"that is, while it is specific, measurable and perhaps even achievable, it is not realistically time-based. Ofcom is asked to set promptness standards. It is permitted to review them, but it is not told how often that review should take place. Even a minimum or maximum timescale is omitted.
We have always said that we expect Ofcom to be a good regulator. We know that the industry will judge some of Ofcom's success, at least, on its ability to act promptly. We feel that to be tarred with the brush of other regulators which have not been successful is an unfair assertion for this brand new body with its very good chairman and staff.
Clause 8 gives Ofcom a duty to publish and meet promptness standards. Read alongside Clause 9, which we added to the Bill in response to concerns expressed by the Joint Scrutiny Committee, our policy intention is clear Ofcom will be set promptness standards for carrying out is functions and business and meeting them.
I am more than aware that there are calls that the clause is not strong enough. Amendment No. 36 seeks to toughen it. The underlying assumption of the amendment is that the words in the Bill that Ofcom must "have regard" to the standards is a woolly concept with no legal effect. That is not the case. If Ofcom does not organise itself so as to be able to meet its promptness standards whenever possible, it exposes itself to legal proceedings. Amendment No. 36 would not give any greater legal force to the obligation which has already been placed on Ofcom.
I turn to Amendment No. 38. It follows similar provisions in the Competition Act 1998 for dealing with notifications. Ofcom's promptness standards will cover all its functions and business related to those functions. Delays in missing some deadlines may not be very important but Amendment No. 38 would apply regardless. The equivalent of Amendment No. 38 is specific in the Competition Act. Its application here is not and for that reason, I am not at all comfortable in accepting it.
I am not sure what additional benefit would be derived from Amendment No. 37, as subsection (7) of Clause 8 requires Ofcom to include in its annual report a summary of its compliance with the promptness
Amendment No. 35 would require Ofcom to review its promptness standards annually. We should not include such a review in the Bill. Let Ofcom consider how it will manage the setting and review of its standards. There is always the spur of the Secretary of State's power in Clause 9 to keep it up to scratch.
Amendment No. 103, which would place a time limit on the process of market analysis, at first sight seems attractive, but it does not take into account all the steps involved in the process, which would have to be telescoped into those four months. I know that the amendment would start the time limit running only after the markets had been identified, but it would still require Ofcom to shoehorn into four months the analysis of the markets identified and the making of any determination.
A significant slice of the timeline is devoted to collecting information from stakeholders, responding and consulting. Consultation by Oftel is for 10 weeksa period requested by stakeholders after Oftel had originally proposed six weeks. Moreover, Clause 78 requires certain proposals to be sent to the European Commission. In specific circumstances, the European Commission can within one month demand an extra two months to review the proposal. So four months could not possibly be made the maximum time in all cases.
Finally, I turn to Amendment No. 144. Of course we recognise the concerns raised about the risks of delay in the resolution of appeals, which may be systematically used by powerful interests to obstruct decisions that are not to their liking. We agree that the appeal process should be as speedy as is reconcilable with the interests of justice. However, we explained in our reply to the Joint Committee's report that it would be impractical to set statutory time limits for the consideration of issues that may be raised by the parties in proceedings before a court of law, because the court must ultimately have sufficient flexibility to give consideration to issues raised by any of the parties at any stage.
It is still our view that that consideration rules out binding deadlines. The amendment does not seem to dissent from that view, because it does not in reality impose binding deadlines. It provides significant flexibility to depart from the four-month deadline, which thus becomes something more like a target.
The tribunal has a good record on prompt decision making in the discharge of its existing responsibilities, and I am confident that it will be equally effective in respect of the new responsibilities proposed by the Bill. The amendment would not have any material effect in speeding those processes. Having heard my remarks on the amendments, I hope that they will not be pressed.
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