Competition Appeal Tribunal (Coronavirus) (Recording and Broadcasting) Order 2020

Lord Marks of Henley-on-Thames Excerpts

Wednesday 15th July 2020 Lords Chamber

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I welcome this order as a way of ensuring that proceedings of the CAT continue to be in public given that the usual public access is constrained by the Covid-19 crisis.

As the Minister has explained, the provisions of the Coronavirus Act provided for broadcasting of a wide variety of court and tribunal proceedings, which has arguably been successful. This SI rightly addresses the anomaly that has been pointed out that proceedings of the CAT are not covered by this legislation. So, at present, hearings of the CAT are proceeding remotely but effectively on a closed basis, which, the Minister seemed to agree, is in breach of Rule 99(1) of the CAT rules to the effect that every hearing should be public except where confidential information is being considered. That breach could, theoretically at least, open the system to challenge.

However, in my view, the arrangements set out in the SI should not be restricted to the currency of this crisis but should become a permanent and expected feature of the CAT subject to the safeguards in this order. Indeed, I would go further. On 8 June, we debated the broadcasting of sentencing remarks in criminal cases and of Court of Appeal hearings in family cases. Along with many noble Lords, I expressed my long-held view that broadcasting of court proceedings should be substantially extended on the ground that open justice is generally better justice.

The same principle applies to tribunals just as it does to court proceedings, and I would argue that broadcasting should be permissible unless there is a countervailing interest to the contrary, whether to protect necessary privacy or legitimate confidentiality, to meet genuine concerns for the protection of witnesses, jurors or others, or otherwise in the interests of justice.

The CAT’s hearings are of widespread and legitimate public interest, as my noble friend Lord Thomas of Gresford pointed out. Its more important cases often attract the attendance of 100 or more people, from the parties, the press and the public, as the noble Baroness, Lady Anelay, reminded us. Its cases include appeals from decisions of the Competition and Markets Authority and from regulators, particularly in the telecoms, utilities and transport sectors. The CAT also has an important review function in respect of Ministers’ decisions covering wide areas of the economy. By way of example, recent cases have included disputes concerning the merger of Sainsbury’s and Asda, and the sale of a significant share- holding in Lebedev Holdings Limited to International Media Company.

Of course, CAT hearings are in general already public, and the CAT goes to considerable lengths to make its proceedings accessible by publishing transcripts of hearings on its website. However, the availability of broadcasting technology, particularly over the internet, has the potential to make the processes of justice far more accessible to the public and far better understood—points strongly made by the noble and learned Lord, Lord Hope of Craighead, who has been a trailblazer in this area.

I regard the safeguards set out in this SI as admirably succinct and sufficient to protect the interests of justice. The requirements for permission, the assurance that copyright will remain with the tribunal and the limits on what may be recorded will enable recordings to be appropriately controlled and monitored, and the tribunals can be relied on to ensure that they are. Of particular interest in this order is that witness evidence may be recorded and broadcast. Although I entirely accept that in many cases witnesses need protection from excessive publicity, I do not see why that should be the case in most CAT proceedings. That goes particularly for expert witnesses. In my view, these arrangements can be expected to work in the wider public interest and in the long term.

We have been reminded that the expiry of the order is 25 March 2022, when the Coronavirus Act expires. By then, we will have had a good opportunity to consider the impact of broadcasting of CAT hearings. My hope is that the legislation restricting their broadcasting, along with the restrictions on broadcasting of court and tribunal proceedings in general, can at that stage be thoroughly overhauled to ensure that much more open justice is achieved.