With this it will be convenient to discuss the following: amendment 48, in schedule 3, page 87, line 41, leave out sub-sub-paragraph (c).
Amendment 49, in schedule 3, page 88, line 21, leave out sub-sub-paragraph (c).
Amendment 50, in schedule 3, page 88, line 39, leave out sub-sub-paragraph (c).
Amendment 51, in schedule 3, page 90, line 6, leave out sub-sub-paragraph (c).
Before the Committee loses the will to live at the sight of all these amendments, I should explain that they are simple, probing amendments that would achieve the same thing.
We question the basis on which the Competition Commission will decide that the “exercise of a discretion” is wrong before the appeal has been granted. To decide what was wrong in any instance would surely be a judicial process that would require evidence and representations from both sides of the argument. Will all interested parties be able to make representations to the Competition Commission before it allows an appeal to be granted under 26(c)? Will a party asking the Competition Commission for an appeal under 26(c) have to inform other interested parties of the grounds of their appeal in order to provide evidence?
The hon. Gentleman asks some specific points about the procedure in relation to paragraph (c), but it is important to address the issues raised by the amendment he has tabled—namely, the deletion of that paragraph.
The amendments seek to reduce the grounds on which an appellant could make an appeal to the Competition Commission against licence conditions and modifications of licence conditions. Although I welcome the opportunity to debate this important issue, for reasons similar to those I set out in relation to the last group, I am concerned that the amendments would damage the carefully constructed appeals process that the Government have included in the Bill.
I welcome the acknowledgment that these are probing amendments; it was helpful and constructive of the hon. Gentleman to make that clear. Even so, there are some technical problems with them. The amendments seek to remove many references to the phrase
“the decision was based on the wrong exercise of a discretion”,
but they do not delete it entirely from the Bill. My concern goes beyond technical matters, important though those are in a complex area of policy. As with the previous group, the Opposition seek to reduce the effectiveness of the right of appeal. I consider that narrowing the right of appeal in this way is not necessary and might harm the ability of airlines to defend the interests of their passengers.
As we have already discussed, the Bill builds in a number of constraints on the appeals process. These include giving the Competition Commission the power to refuse permission to appeal where the grounds are trivial or vexatious or have no reasonable prospect of success. But the three grounds of appeal in clause 26(2) also play an important part in ensuring that the appeals system provides effective redress for airlines without enabling it to be used unfairly to disrupt the decision-making process or displace the CAA as the regulator.
The three grounds (a), (b) and (c) already present a relatively high test to applicants wishing to appeal. To remove paragraph (c) would make it even more difficult to appeal successfully. I appreciate that Opposition Members do not wish to see CAA decisions disturbed where there is no good reason—indeed, none of us wants to give appellate bodies powers that are too broad when it comes to overturning decisions by the CAA. However, appeals that have merit should be heard if airlines are to play an effective role in defending the interest of passengers.
The three grounds in subsection (2) are widely used in appeals procedures in much of the English legal system. They are based on civil procedure rules that govern appeals from lower courts to higher courts. It is worth noting that the third ground, which the amendment seeks to delete, will not be established merely if the appeal tribunal would have taken a different approach from that of the CAA if it had been the decision maker; rather, it would apply where the Competition Commission is satisfied that the CAA has exceeded the generous ambit within which a reasonable disagreement is possible. Put simply, if there is more than one reasonable outcome, the CAA’s decision cannot be overturned simply because the Competition Appeal Tribunal would have come to the conclusion that a different outcome was the better option.
The adjudicative nature of the appeal rights is an important means of preventing the kind of two-tier decision making that we debated in relation to the previous amendment. We have not introduced an investigative appeal process where an appeal body would in effect retake the decision, substituting its own views for those of the CAA. The purpose of limiting the scope of the Competition Commission’s powers is to prevent it from simply taking a fresh decision on the basis that it prefers a different approach. I cannot accept the amendments because I believe they would destabilise an appropriate balance between regulatory certainty and preserving the CAA as the regulator, and the need to correct injustice where errors occur.
I will take advice on the points that the hon. Member for Barrow and Furness made about the procedures to be applied and the scope of third parties to take part in the appeals process, and I will get back to him. I do not have the answers in front of me because those points are not directly relevant to the amendments, but I am happy to look into those matters and come back to him.