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Lord Crickhowell moved Amendment No. 21:

(1) This section applies if the court is satisfied, on the application of a person aggrieved by the failure of OFCOM to comply with the promptness standards set out in the statement for the time being in force under section 8, that there has been undue delay on the part of OFCOM in—
(a) the carrying out of their different functions; or
(b) the transaction of business for purposes connected with the carrying out of those functions.
(2) The court may give such directions to OFCOM as it considers appropriate for securing that the functions or business that are the subject of the application under subsection (1) shall be carried out or transacted without unnecessary further delay.
(3) In this section "the court" means—
(a) in England and Wales, the High Court;
(b) in Scotland, the Court of Session; and
(c) in Northern Ireland, the High Court."

The noble Lord said: My Lords, I must apologise for the fact that, when thinking what I was going to say on the amendment, my mind was far from Amendment No. 14, to which we suddenly came back a moment ago. I am glad that it was duly moved.

When speaking to Amendment No. 1, I said that the members of the Joint Committee who had tabled a considerable number of amendments in Committee were now concentrating our fire on a few that we thought important. Amendment No. 21 is one of those. As I said in Committee, we thought it important because of the evidence that we had heard from many witnesses about the delays that had taken place before existing regulators. I need not dwell on that point. On that occasion, the amendment was one of a group on promptness standards. Now we are left simply with one important but single amendment on the issue.

In paragraph 85 of its report, the Joint Committee recommended that,

    "by analogy with the relevant provisions of the Competition Act, a party aggrieved by a failure of OFCOM to determine a matter for decision in accordance with time limits or promptness standards be enabled to seek a direction by a court to OFCOM if the court is satisfied that there has been undue delay by OFCOM".

We also recommended that the relevant sections of,

    "the Competition Act 1998 be brought into force at the earliest possible opportunity".

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On that last point, I simply say that why those provisions have not been brought into effect has been raised repeatedly in both Houses. So far, we have not had an answer.

I can deal relatively briefly with the amendment on this occasion because I simply have to deal with the arguments put against it in Committee by the noble Lord, Lord Evans of Temple Guiting. He first said:

    "Delays in missing some deadlines may not be very important but Amendment No. 38 would apply regardless".—[Official Report, 15/5/03; col. 320.]

If the matters are not very important, it seems most unlikely that parties will take them before the courts, given all the costs incurred and the likelihood that the courts are likely to take a dim view and award the costs against them if they have raised a trivial matter. Therefore, I do not take that as a very serious argument.

The second main argument advanced by the noble Lord was that a great deal of the time might be devoted by Ofcom to delays in the responses from stakeholders. I understand the argument, although I expressed some anxiety in Committee that we should apparently put the matter in the hands of stakeholders, who in some cases have been notably reluctant to produce the information in a timely manner. However, I again do not find the argument convincing. It hardly seems very likely to me that a stakeholder who has been slow in providing information will come to the court and say, "I've been slow, but I want you to put a bomb under the backside of Ofcom". I am sure that they would put it in rather more delicate terms than that, but the simple fact of the matter is that, if they have been delaying matters, they will not have a very compelling case to put to the courts, so the courts are likely to treat their application in a pretty summary way. Therefore, I do not believe that that can be a very serious argument.

Finally, the Minister said that, in any case, this amendment should apply only to part of the Bill. But the amendment specifies that the matter can be brought before the courts following delay on the part of Ofcom in,

    "the carrying out of their different functions; or . . . the transaction of business for purposes connected with the carrying out of those functions",

and that the court may,

    "give such directions to OFCOM as it considers appropriate for securing that the functions or business that are the subject of the application under subsection (1) shall be carried out or transacted without unnecessary further delay".

Once again, we are being asked to believe that someone with an irrelevant application will come to the courts or that the courts will take seriously a matter that should not have been brought under this section.

I do not believe that any of those arguments can be treated seriously. In this case, we are simply saying that if there are occasions when Ofcom delays in an unreasonable way when handling such cases and if such delays may cause severe financial loss to the parties involved, then there should be a remedy by which the party can go to the courts and obtain a suitable direction. The courts have discretion in the

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matter. A court would be able to dismiss the application if it were irrelevant or trivial and give an appropriate order if it considered that it had relevance and justification.

Therefore, the proposed new clause would not impose an impossible burden on Ofcom. Past experience suggests that such a fallback or safeguard is necessary if individual organisations are to be protected. Therefore, I hope that, confronted by this eminently reasonable proposal—one that, after all, is included in existing legislation because past governments have considered it to be eminently reasonable—on this occasion the Government will think that it is sensible to accept this modest and reasonable proposition. I beg to move.

9.30 p.m.

Lord Puttnam: My Lords, I rise briefly to support the noble Lord, Lord Crickhowell, in the amendment. We on the Joint Scrutiny Committee did not make up this matter; it emerged from evidence. Time and time again we were presented with scenarios and organisations which made it clear to us that incumbent or dominant organisations had become past masters at utilising delay to achieve their ends over other organisations less well versed and less skilled. For that reason, we plumped for this issue as a recommendation; for that reason, this amendment has made its way to the Report stage of the Bill; and, for that reason, I commend it to the Government.

Lord Davies of Oldham: My Lords, before I begin to respond in detail to the points raised by the noble Lord, Lord Crickhowell, in moving his amendment and in direct response to my noble friend Lord Puttnam, I have one observation to make. Neither in this Chamber nor in another place during detailed debates on the Bill has there been much acknowledgement of Clause 9. Yet Clause 9 gives powers to the Secretary of State to direct Ofcom to issue a new or revised statement of promptness standards if she does not believe that what exists already is adequate for securing satisfactory promptness standards.

Those powers were introduced specifically in response to concerns raised by the Joint Scrutiny Committee, which my noble friend chaired. Therefore, it seems a little ungracious that it has not been noticed that the Government sought to take on board those arguments and set out to address them in Clause 9 as well as we could. Clause 9 is not about interfering in the running of Ofcom, but is an assurance to stakeholders that the regulator will need to take its promptness standards seriously, or the Secretary of State might act. I suggest that as I run through my response to the noble Lord, Lord Crickhowell, he bears in mind the operation of this clause.

The noble Lord, Lord Crickhowell, identified the reasons why he felt moved to bring back this amendment despite a clear and careful explanation of our concerns by my noble friend Lord Evans of Temple Guiting from the Front Bench. The noble Lord, Lord Crickhowell, has not changed his amendment—and we have not changed our position

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since the Committee stage. Ofcom's statement of promptness standards will refer to its different functions and to the transaction of its business in carrying out those functions. The amendment of the noble Lord, Lord Crickhowell, would apply to an incredibly broad range of matters, and that is why we have good reason not to accept it.

I listened very carefully to the noble Lord's arguments. He suggested that it would be unlikely that trivial matters would be taken before the courts. Unfortunately, we have all had experience of the trivial being taken to court by individuals who are inclined to make mischief.

The amendment tabled by the noble Lord, Lord Crickhowell, is open to considerable abuse. We sought to deploy these arguments in Committee. We stressed the fact that we bore in mind exactly what the Joint Scrutiny Committee—to which he made such a significant contribution—recommended, and we have a clause in the Bill which substantially addresses those concerns. It is on that basis that I hope the noble Lord will feel able to withdraw his amendment.

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