We have two more probing amendments that I hope we can deal with relatively briefly. By deleting “could” from paragraph 2(5)(b) of schedule 2, amendment 42 would have the effect of the Competition Commission being able to exclude an appeal only if the matter had already been raised in a previous appeal. If the Government want to draw exclusions wider than that, I hope they will set out why that is correct.
Amendment 43 would remove paragraph 2(6) of schedule 2 and with it the references to a “relevant connected person”, because we are concerned that the current wording is too broad and there could be a good case for its refining. For example, does that mean any person with a personal or commercial link? Does the Minister envisage that no such differentiation would be made? If she thinks that such differentiation should exist, would she consider tightening the wording of the legislation?
I welcome the hon. Gentleman’s comments. As we have heard, amendment 42 seeks to remove the power from the Competition Commission to exclude matters that could have been heard by a previous appeal. The relevant scenario is where a first appeal results in the matter being remitted back to the CAA, under clause 27(2)(b), which then repeats the licence modification process, as under clause 22, and then another appeal is made. Amendment 42 is unnecessary and I hope that I can provide the shadow Minister with the reassurance that he wants about the rationale for the approach taken in the Bill.
In short, we want to encourage the appellant to produce the best case the first time, which is another element of our efforts to ensure that unnecessary expense is not incurred as a result of avoidable appeals, because, as the shadow Minister has acknowledged, a costly appeals process will ultimately have an impact on costs for passengers.
It is also reasonable that other stakeholders should be entitled to assume that, where it has appealed and failed, a party will not then ordinarily be able to relitigate points or to raise fresh points directly or through connected persons. Essentially, the change proposed in the amendment would allow people to have two bites of the cherry and to seek to appeal again about something that really should have been dealt with by a previous appeal. If we were to adopt the amendment, the appeal system would become longer, more costly and less efficient.
On what the shadow Minister said about connected parties, I am slightly struggling to find where they are defined in the Bill; I am sure that is in there somewhere. Certainly the concept of a connected person is used in a number of different contexts. It tends to be defined in relation to each specific context. [Interruption.] I am assisted by a note that mentions clause 71.
I will certainly look into the matters that the hon. Gentleman has raised. It is important to have clarity in relation to who counts as a connected person and to ensure that appellants cannot use connected parties to enable them to have a second chance at an appeal that should really have been covered by a previous one. That could prove unnecessarily costly and protracted. We should retain the restriction on pursuing appeals via connected persons. I will double-check where the definition of connected persons appears in the Bill.
I beg to move amendment 44, in schedule 2, page 77, line 28, leave out sub-sub-paragraph (b).
This is another probing amendment, which asks the Minister why the three-person group established by the Competition Commission to consider and determine appeals would not have to reconsider any decision made or direction given by the group before one of its members had been replaced, if that needed to happen.
One of the reasons for removing a group member could be that, because of a particular interest, it would be inappropriate for that person to remain a member of the group. That is set out in paragraph 17(1)(c). That implies that someone could have been a member of the group reviewing an appeal when they had a commercial or personal interest that would lead them to have a biased judgment. I should be grateful if the Minister explained why, if the members had to be changed under those circumstances, what had gone before could still stand and the group would not necessarily have to reconsider previous decisions.
I am confident that the provision as drafted offers a sensible and balanced approach to replacing members of the group and does not pose a threat to justice being carried out in a proper and fair way. If there were any possibility of a bias or an apparent bias, replacing the member would not of itself cure that. Paragraph 17(3)(b) provides that the mere fact that a member is replaced does not of itself affect earlier decisions. We believe that this is a sensible and practical approach to this issue that does not cause injustice. Allowing the amendment would mean that any change in the Competition Commission group determining the appeal would or could have an adverse impact on all earlier decisions by the group and might require proceedings to be restarted.
This is another instance in which I fear that if the amendment were adopted, we could end up with a slower, more costly system that ultimately would not be in passengers’ interests. Returning to the start of the decision-making process merely because of a change to the membership of the Competition Commission panel could prove expensive, and is not in line with our wish to have a smooth-running appeals process that delivers a timely resolution.
Changes to the composition of appeals panels are inevitable. For perfectly ordinary reasons, people move on to different roles or jobs. If every appeal had to start from scratch whenever a panellist left the Competition Commission, that would lead to considerable extra costs and delay, which would not be in the interests of airports, airlines, the CAA or passengers.
If a member were replaced because of the possibility of apparent bias, it would remain open to anyone with sufficient interest to seek to have the decision or the proceedings quashed by the High Court, on that basis. Equally, if replacing a member part way through the appeal would result in an incurably unjust or unfair hearing, again, the High Court could intervene. The High Court’s powers and public law remedies should ensure that any real injustice arising from the underlying reason for replacing a member will remain subject to an appropriate legal process.
Similar provisions to those in the Bill are in operation in the regulation of electricity and gas markets, without causing problems. I hope therefore that the shadow Minister is reassured that the provision in the Bill serves an important practical purpose when, for various ordinary reasons, the composition of the panel changes. However, as it would not, in any sense, inhibit redress where there is concern about apparent bias in relation to a member of the panel taking decisions for the Competition Commission, I hope that the shadow Minister feels able to withdraw the amendment.