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

Lord Thomas of Gresford Excerpts

Wednesday 15th July 2020 Lords Chamber

[Lord Thomas of Gresford (LD) [V]]

My Lords, I thank the Minister for his clear exposition. The Competition Appeals Tribunal may well be more prominent in the near future, for two reasons. First, if we are facing the economic slump that is predicted due to the pandemic, we are likely to see a number of firms go to the wall unless merged with larger organisations. This may well lead to interventions by the Competition and Markets Authority on the issue of unfair competition or dominance of markets. As the noble and learned Lord said a moment ago, appeals from the rulings of the CMA go to the Competition Appeals Tribunal. Secondly, when we finally leave the European Union at the end of the transitional period, in January, the tribunal will lose jurisdiction over cases involving the two competition articles of the Treaty on the Functioning of the European Union: article 101, on anti-competitive agreements; and article 102, dealing with abuses of a dominant market position. The tribunal will lose the right to refer issues for a ruling by the European Court of Justice.

Nevertheless, British companies or individuals whose activities may affect trade within the EU will still remain subject to European competition law. This will include such sectors as agriculture, fisheries and transport. I assume that any conflicts or problems will be litigated in Europe. I fear this will lead to a loss of our leadership role in developing competition law, not only in Europe but in the world. The tribunal’s excellent president, Sir Peter Roth, has contributed much to spreading principles of competition law derived in this country at forums and seminars worldwide.

The nature of the issues litigated in the tribunal are broad. The tribunal is a specialist judicial body with cross-disciplinary expertise in law, economics, business and accountancy. That is reflected in the composition of the hearings, where two members with diverse backgrounds—in business and academia—sit with a High Court judge as chairman.

Its function is to hear and decide cases involving competition and economic regulatory issues. It deals with some 25 to 30 cases a year, some of which are multifaceted and complex, and others much simpler. The consequences for a firm can be drastic: fines of up to £44 million have been imposed. For the individual it can lead to director disqualification, claims for damages or even criminal proceedings. Many cases require quick decisions: when the viability of a business is at stake, delays may be disastrous. This is recognised by the fast-track procedures within the tribunal’s rules.

I have outlined its scope to indicate that it is obviously highly desirable, on the principle of open justice, that the tribunal sits in public. That is fully recognised. The circumstances in which it can sit without the presence of the public or press are even more limited than in the jurisdiction of the Upper Tribunal or First-tier Tribunal. Indeed, it is expressly against the rules of the CAT to sit in private, save in exceptional circumstances. However, the pandemic has meant that hearings have been restricted to parties who are specifically invited to attend a virtual hearing—we are used to that. This is obviously highly unsatisfactory and could lead to legal challenge.

This statutory instrument is limited in scope and in time. We welcome it as it will allow tribunal cases to be heard in the most open and transparent way possible and will facilitate public access and scrutiny. We give it our full support.