Clause 188 - Reference of price control matters to the Competition Commission
Communications Bill
4:45 pm

Mr John Whittingdale (Maldon and East Chelmsford, Conservative)

I beg to move amendment No. 135, in

clause 188, page 168, line 42, at end insert 'which period must not exceed three months'.

Mr Bill O'Brien (Normanton, Labour)

With this it will be convenient to take amendment No. 136, in

clause 190, page 169, line 35, at end insert—

'(3A) The Tribunal must make its decision either—

(a) in a case falling within section 188, no more than six months after the day on which the appeal was made; and

(b) in any other case, no more than four months after the day on which the appeal was made.'.

Mr John Whittingdale (Maldon and East Chelmsford, Conservative)

The amendments would set time limits on the hearing of appeals on Ofcom's decisions about communication services and networks. The new European framework provides that such decisions must be subject to appeal on the substance of the decision, but similar arrangements have caused problems in several European countries, notably Germany and Spain, where appeals are habitually used by those who are subject to unfavourable regulatory decisions. That happens when there are no good grounds for the appeal, but the appeal is used as a gaming mechanism to frustrate and delay the original decision.

In an environment in which the original decision must be made within four months, it would be absurd if appeals took much longer than that because it would circumvent the welcome provisions to ensure that decisions are reached relatively swiftly.

Given the time available I shall say no more, and I press the Minister to respond.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

While we are considering clause 188, may I ask one question? I am grateful to the Minister for the provisions because they respond to evidence taken by the Joint Committee on the desire to refer price control matters to the Competition Commission, which is better suited for the task of considering that. If the Competition Commission is suited to the task in relation to SMP services with a price control condition, why will it not be suited to the task if there is an appeal on an SMP condition attached to the apparatus market?

Mr Stephen Timms (Minister of State (e-Commerce & Competitiveness), Department of Trade and Industry; East Ham, Labour)

Amendment No. 136 would impose a time limit on the determination of appeals by the tribunal. Our reply to the Joint Committee's similar recommendation on that made it clear that we do not consider that it is practical to set statutory time limits that would constrain a court of law. Of course, courts

could and should establish timetables and adhere to them. However, if a party raises a new point at any stage—even a late stage—the court must have flexibility to give the point as much consideration as it merits. I am not aware of any precedent for applying such limits to a judicial body determining an appeal, and we should not try to do that now.

Amendment No. 135 raises a different issue because we envisage that it may be appropriate to set limits for the determination by the Competition Commission of matters referred to it. Subsection (3) provides powers for the tribunal rules to make provision for such limits. However, there is not a strong argument for imposing a maximum duration through the Bill. It is more appropriate that the Secretary of State should prescribe appropriate tribunal rules, and that the tribunal should set the period to be allowed case by case according to circumstances. The objective of the amendment will be met, but in a different way from that envisaged.

The hon. Member for South Cambridgeshire asked about consistency. The commission's role when determining price control matters in an appeal under clause 187 will be different from that when considering a proposed licence modification referred to it by a sectoral modification. The Competition Commission is not excluded from SMP apparatus decisions. Any price control matter must go to the commission irrespective of the case in which it arises. If I can

provide the hon. Gentleman with further information on that point separately, I shall be happy to do so.

Mr John Whittingdale (Maldon and East Chelmsford, Conservative)

We have rather galloped through our consideration of the amendments, but it is helpful that the Minister's comments are on the record. Although the comments might not deliver what the industry hopes for, they provide useful clarification.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

Before my hon. Friend concludes, will he note that if it were the intention that price control matters should be dealt with by the Competition Commission, surely subsection (10) would have included a reference to conditions set under clause 89(3)? Such a reference is not present, which might be something that the Government would like to come back to.

Mr John Whittingdale (Maldon and East Chelmsford, Conservative)

That is an extremely interesting point. I am sure that the Minister has taken careful note of it and will give it the proper consideration that it deserves.

We have, at least, managed to address the issues, which is something. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 188 ordered to stand part of the Bill.

Clauses 189 to 192 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Jim Murphy.]

Adjourned accordingly at Five o'clock till Tuesday 14 January at five minutes to Nine o'clock.