Lord Hope of Craighead
Main Page: Lord Hope of Craighead (Crossbench - Life peer)Consumer Rights Bill
Lord Hope of Craighead Excerpts“Nomination of judges to the Competition Appeal Tribunal
(1) The Enterprise Act 2002 is amended as follows.
(2) In section 12(2)(b) (competition appeal tribunal) after “the Lord Chancellor” insert “or nominated by the appropriate senior judge pursuant to paragraph 2(4) of Schedule 2”.
(3) After section 12(5) insert—
“(6) Appropriate senior judge has the same meaning as in paragraph 2(7) of Schedule 2.”.
(4) In Schedule 2 (the competition appeal tribunal) after paragraph 1(3) insert—
“(4) Upon the nomination of the appropriate senior judge, any judge of the High Court of England and Wales, the Court of Session or the High Court of Northern Ireland shall be a member of the panel of chairmen and shall hold and vacate office in accordance with the terms of their nomination.”.
(5) In paragraph 2(1) of that Schedule after “The members appointed” insert “by the Lord Chancellor”.
(6) In paragraph 2(2) after “A person” insert “appointed by the Lord Chancellor to the panel of chairmen”.
(7) In paragraph 2(3) after “and the chairmen” insert “appointed by the Lord Chancellor”.
(8) In paragraph 2(4) after “remove a person” insert “appointed by him”.
(9) In paragraph 2(6) after “remove a person” insert “appointed by him”.
(10) In paragraph 2(7)(a) after “the person to be” insert “nominated or”.
(11) In paragraph 2(7)(b) after “the person to be” insert “nominated or”.”
Lord Hope of Craighead (CB)
My Lords, the amendment raises a short but important point about the appointment of judges to sit on the Competition Appeal Tribunal. It has the support of the Lord Chief Justice of England and Wales, who brought the matter to my attention.
Clause 80 and Schedule 8 to the Bill make significant changes to the jurisdiction of the Competition Appeal Tribunal, which was established by the Enterprise Act 2002. At present, the tribunal hears appeals from the competition authorities and regulators. The effect of Schedule 8 will be to expand its jurisdiction so that it will become, in effect, a specialist court hearing private competition appeals from all parts of the United Kingdom. I understand that that part of the Government’s proposal has received widespread support. It cannot be disputed that, if it is to cope effectively with this increased case load, the tribunal will require to be staffed by a sufficient number of judges from all parts of the United Kingdom who are equipped to deal with it.
The position, at present, is rather unusual. The judges of the Chancery Division in England and Wales are, on and by virtue of their appointment, authorised to sit as chairmen of this tribunal. However, under the current legislation, their appointment terminates after eight years and is not renewable. This is found in paragraph 2 of Schedule 2 to the Enterprise Act. This is not the best use of that resource. The effect of the eight-year terminus is that their expertise is then lost, although they may continue to serve as judges in the Chancery Division for many years later.
The fact that the system of appointment that I have described applies only to the Chancery Division has another unfortunate consequence, which is that other sources of expertise among the judges are not being used. Practitioners with experience of competition law are appointed to the Queen’s Bench Division but are not automatically authorised to sit on the tribunal. The effect of this is that, to be able to sit as a chairman, they would need to apply to the Judicial Appointments Commission, enter and be successful in a competition. For obvious reasons, serving judges are not keen to undergo that process and I understand that, in practice, they do not do so. Moreover, no Scottish or Northern Irish judges can currently be appointed to the tribunal either, without successfully completing an equivalent recruitment process in their respective jurisdictions, which, for the same reasons, has no attraction for them either. The absence of judges from those jurisdictions is all the more unfortunate as, under the changes being introduced by the Bill, the tribunal, with its widened jurisdiction, can be expected to hear more cases from Scotland and Northern Ireland than it does at present. One has to bear in mind that there is a process of appeal. Appeals from tribunals sitting in Scotland and Northern Ireland will go to the Court of Session and the Court of Appeal respectively. The absence, on the tribunal, of judges from those jurisdictions is bound to be noticed and this could raise sensitive issues which are best avoided.
The problem that I have briefly outlined was recognised in the Government’s consultation paper Streamlining Regulatory and Competition Appeals. In paragraph 5.13, it is noted that,
“the practice of requiring judicial officeholders to undertake a second appointment … for an equivalent office acts as a bureaucratic barrier to enabling any of these judges to sit in the CAT”.
Legislation was therefore proposed that would enable the heads of the respective UK jurisdictions to select and appoint judges whom they regarded as appropriate to sit as chairmen. Those would be judges of all divisions in the High Court in England and Wales, irrespective of the division to which they were appointed, and judges sitting in the Court of Session in Scotland and in Northern Ireland. They would be able to continue sitting as chairman without any eight-year limitation, which is the position under the Act at present.
The amendment has been proposed because, as presently framed, the Bill does not give effect to the proposal outlined in that consultation paper. If the Bill remains as it is, the bureaucratic barrier will remain in place. That is a matter of great concern to the Lord Chief Justice as head of the judiciary in England and Wales. In his view, with his knowledge of the resources that would otherwise be available to him, it is depriving the tribunal of some of the ablest judges to serve that jurisdiction. It is to be expected that the same sentiments will be felt in Scotland. I know, from recent discussions with people there, that they have had to appoint a leading member of the Bar because no judge is prepared to undergo the process and sit on the tribunal.
I need not go through the provisions, which are set out quite clearly in Amendment 41B. The essence, the key provision, is in subsection (4), which provides:
“Upon the nomination of the appropriate senior judge”—
that is, the senior judge in each jurisdiction—
“any judge of the High Court of England and Wales, the Court of Session or the High Court of Northern Ireland shall be a member of the panel of chairmen and shall hold and vacate office in accordance with the terms of their nomination”.
Of course, that process relies on the judgment of the senior judges, but they know their judges very well and are well able to judge those who are appropriate to sit on the tribunal and can be relied on to make the appropriate choices.
Finally, I draw the Minister’s attention to a slip in the amendment. It is a very small misprint, in subsection (2). The reference there to paragraph 2(4) of Schedule 2 should be to paragraph 1(4) of that schedule. That is the paragraph that is set out in subsection (4), from which I have just been quoting.
For those short reasons, I beg to move.
Lord Mackay of Drumadoon (CB)
My Lords, Amendment 41CA is in the same group as the amendment moved by my noble and learned friend Lord Hope of Craighead. It should be understood that I agree with everything that my noble and learned friend has said in support of his amendment. The amendment in my name is a much shorter form of that. It sets out an addition to Schedule 2 to the Enterprise Act 2002:
“A judge of the High Court of England and Wales, the Court of Session or the High Court of Northern Ireland shall be eligible for appointment as a chairman if nominated by the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland respectively”—
who are all the senior judges in their respective jurisdictions.
I do not think that the House would be assisted by my going over the detail of the submission made by my noble and learned friend Lord Hope of Craighead. The main point that I wish to stress is that, when one looks at the consultation document, to which reference has been made, it would appear that the purposes that the Government have in mind for their intended legislation are precisely the purposes that would be served by Amendment 41B, if it were accepted, and likewise my own Amendment 41CA, if the same thing happened to it.
It is instructive to bear in mind, therefore, that in paragraphs 5.14 and 5.15 of the consultation document, the Government explicitly say that they are “minded to legislate”: first, to deal with the appointment problem encountered in Scotland; and, secondly, to deal with the fact that those who achieve appointment as chairmen of the Competition Appeal Tribunal can serve for only eight years.
In conclusion, if the Minister is of the view that the government policy has changed, it would be instructive to the judges, both north and south of the border, if that change in policy was made quite clear. If there is some concern about the precise drafting of either my amendment or that moved by my noble and learned friend, it could be easily corrected in time for Third Reading.
Lord Hodgson of Astley Abbotts (Con)
My Lords, I was not sufficiently fast on my feet, but when he comes to reply to this debate, perhaps the noble and learned Lord, Lord Hope of Craighead, could make it clear whether the delicate implication of his amendment is that the Competition Appeal Tribunal is judicially underpowered for its tasks at present or, in particular, in the future.
Lord Hope of Craighead
My Lords, I will reply to that very briefly. I thought that I made it clear that the amendment is really provoked by the expanding jurisdiction in Schedule 8. The present position copes satisfactorily—it is not the ideal situation—but the expanded jurisdiction will greatly increase the workload of the tribunal and its visibility, because it is going to deal with private litigation as well as the regulatory authorities. It is that particular feature that is concerning the Lord Chief Justice and, I dare say, his equivalents north of the border and in Northern Ireland. I do not want to criticise anybody on the tribunal at the present time; I am trying to look forward to the expanded jurisdiction and see that it is served as well as possible.
Baroness Neville-Rolfe
My Lords, I am grateful to the distinguished noble and learned Lords, Lord Hope of Craighead and Lord Mackay of Drumadoon, for joining our debate and for their amendments, which are intended to address an anomaly in the appointment of Competition Appeal Tribunal chairs. I recognise their concerns and agree that this difference has existed for far too long.
As noble Lords will know, the CAT has a UK-wide jurisdiction and, as a result of the Bill, we expect the CAT to become the venue of choice for competition cases. As the noble and learned Lord explained, it will be busier. The CAT hears appeals against decisions by the regulators and competition authorities in cases arising in England and Wales, Scotland and Northern Ireland. I agree with the noble and learned Lord that the current process for appointing CAT chairs effectively acts as a barrier to judges sitting in the Court of Session in Scotland or the Northern Ireland High Court.
The Judicial Appointments Commission was created in order to remove the scope for any perceived political interference. As part of its responsibilities, judges who are appointed to the Chancery Division of the High Court are also assessed for appointment as a chair of the CAT. However, the Scottish and Northern Irish equivalents of the Judicial Appointments Commission do not have a remit to make recommendations for appointments of CAT chairmen. This means that the only way judges in either the Court of Session or the Northern Ireland High Court can sit as chairmen in the CAT is to seek appointment via an application to the JAC.
I agree with the noble and learned Lords that this cannot be right, nor can it be what was intended when the Judicial Appointments Commission was created. It seems needlessly bureaucratic, as the noble and learned Lord, Lord Hope, said. This is an issue on which we share common ground and I would welcome the opportunity to discuss it in more detail with the noble and learned Lords to see what progress we can make at Third Reading, including, if appropriate, tidying up any slip. I hope that what I have said reassures the noble and learned Lords and I therefore ask the noble and learned Lord, Lord Hope, to withdraw his amendment.
Lord Hope of Craighead
My Lords, I am extremely grateful to the Minister for her encouraging and constructive reply. I am quite sure that in discussion we will be able to find some satisfactory solution. There are two solutions on the table and I think that, with the assistance of the Bill team, we can probably work out a satisfactory answer. I look forward very much to achieving that before Third Reading. For the time being, I beg leave to withdraw the amendment.