Clause 100 - Civil liability for breach of conditions
Communications Bill
5:00 pm
Mr Stephen Timms (Minister of State (e-Commerce & Competitiveness), Department of Trade and Industry; East Ham, Labour)
When we debated clause 90, I set out the key elements of the enforcement arrangements that we proposed for the conditions of entitlement, which will replace the current system of telecommunications licences. Clause 100 provides that the obligation to comply with the conditions of entitlement—an enforcement notification, or conditions attached to a direction to suspend a person's entitlement to provide networks or services or make available associated facilities—is a duty owed to every person who may be
affected by the contravention. The impact of the introduction of such a duty is the creation of a new right for a private party to bring civil court actions for damages—or whatever—against a person whom they consider is not complying with their obligations under the conditions.
The remainder of the clause contains provisions defining more closely the basis on which an action is to be based, and subsection (3) includes a statutory defence in proceedings that the person
''took all reasonable steps and exercised all due diligence to avoid''
a breach. Under section 18 of the Telecommunications Act 1984, such a right only arises where the Director General of Telecommunications has made an order requiring the licensee to comply with his obligations under the licence. In other words, private parties do not have a right of action unless and until the director has ruled that the licensee is in breach of his obligations. Amendment No. 112 would prevent a private party from bringing civil proceedings unless Ofcom had determined that a provider was in breach of a condition of entitlement. I do not believe that that would be an appropriate or helpful change to make to the clause.
I understand the argument that extending the right of private party action, which we propose, might add to the business burden faced by communications providers, and I understand the concerns about the risk that private parties may bring action out of the blue, rather than raise alleged breaches with Ofcom as complaints or disputes. The hon. Member for Maldon and East Chelmsford is right to express those concerns, which we considered when preparing the Bill. However, those concerns are not justified to the extent that the provisions should be amended.
There is concern that a court might take a view that is not consistent with that which might be taken by Ofcom. That cannot be ruled out, although I think that it would be a rare occurrence. It would be right if Ofcom were to take account of court decisions when it takes a view—I would expect that to happen. It is possible for a regulator's position on an issue to evolve over time, and now that we are introducing a full right of appeal on the merits of a case, there are bound to be cases in which the regulator's original decision is overturned or modified on appeal.
Complete consistency, and the certainty that goes with that, cannot be assured in the system that would be introduced under the Bill, but they would not be assured if Ofcom alone were to decide on the matter, and the additional risk created by the courts having to decide on the merits of a case does not seem to be a large one. The parties may provide the courts with any specialist evidence that they think appropriate, which is what happens in respect of a case or decision by the regulator.
The hon. Member for Maldon and East Chelmsford voiced concern about providers being ambushed by private parties without the issue having been raised previously with Ofcom. There are no grounds for the view that the courts would not allow adequate time for a provider to prepare a defence and for relevant
documents and so on to be made available before a hearing; nor would the opening of proceedings preclude the parties from reaching an agreed settlement by negotiation before a formal judgment was reached. I expect the courts to give short shrift to any frivolous cases that might be brought before them.