Competition Appeal Tribunal (Recording and Broadcasting) Order 2022

Lord Wolfson of Tredegar Excerpts

Tuesday 25th January 2022 Grand Committee

Moved by

[Lord Wolfson of Tredegar]

That the Grand Committee do consider the Competition Appeal Tribunal (Recording and Broadcasting) Order 2022.

Relevant document: 25th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, the statutory instrument before us this afternoon grants the Competition Appeal Tribunal a permanent power to broadcast its hearings to the public using audio and video technology. I put it in terms of a power because the decision to broadcast in any case is subject to judicial discretion, should the judge have a reason in a particular case not to allow a hearing to be broadcast. The draft order is made under Section 32 of the Crime and Courts Act 2013 with the concurrence of the Lord Chancellor and the Lord Chief Justice. Importantly, this order replaces a temporary order which will expire on 25 March 2022.

For noble Lords who are not intimately familiar with it, the Competition Appeal Tribunal, more generally known as the CAT, is a specialist tribunal whose principal functions are to hear and decide cases involving competition or economic regulatory issues, including appeals to decisions by the Competition and Markets Authority and some other economic regulators. The CAT is sponsored by BEIS, the Department for Business, Energy and Industrial Strategy, but, as the power to make this order is conferred on the Lord Chancellor, it has therefore been drafted and laid before Parliament by the Ministry of Justice.

Noble Lords will be aware that, during the pandemic, our courts and tribunals swiftly moved to holding hearings remotely using audio and video technology. To ensure that open justice was maintained in these circumstances, a temporary provision in the Coronavirus Act 2020 allowed most courts and tribunals to transmit their proceedings to remote observers who had specifically requested access. The CAT was not included in the Coronavirus Act 2020 provisions. So, to ensure that the CAT could continue to hold its hearings and broadcast them, a temporary statutory instrument, under Section 32 of the 2013 Act that I mentioned, enabled the CAT to broadcast its proceedings via a link on its website.

That has worked successfully. In a recent case concerning Newcastle United Football Club, around 33,000 individuals from over 50 countries were interested in watching the hearing, with around 4,000 observers watching it at any one time. Whether that was due to the legal issues in that case or was related to Newcastle United Football Club, I am afraid I cannot assist the Committee.

This current and temporary SI will expire, as I say, on 25 March this year, when the Coronavirus Act 2020 is due to expire. Because the broadcasting in this tribunal has been a success, we want to make the CAT’s ability to broadcast its proceedings permanent.

This instrument reproduces the existing temporary order, with two additional provisions which I should bring to the Committee’s attention. One is provision to revoke the temporary order, which is self-explanatory. The other mirrors provision included in other instruments under this power in relation to the Court of Appeal and Crown Court and requires that any use of the footage of the CAT must be fair and accurate. For example, it cannot be used for party-political broadcasts, advertisements or promotions, light entertainment or, need I add, satire. Additionally, the CAT has guidance accompanying each hearing listed for broadcast containing a warning that it is not permitted for any person to record a live-stream hearing and that breaching this requirement would constitute contempt of court.

I underline the point that this order strengthens the principle of open justice, which is a fundamental principle in this jurisdiction and has been for centuries. It means that those who are interested will be able to watch the CAT’s proceedings from the convenience of their homes or offices, or anywhere else. Importantly, it retains ultimate judicial discretion over the actual broadcast in any particular case. I commend this instrument to the Committee.

[Lord Thomas of Gresford (LD)]

My Lords, the Liberal Democrats have always supported open justice and continue to do so. Therefore, we very much support this instrument. During the lockdown periods, I watched my daughter-in-law, who is a judge of the First-tier Tribunal, conduct her hearings online. She has done so consistently in providing justice in the north-west. I have been very impressed with the way in which justice has been seen to be done in that area. I have nothing further to add.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am very grateful for the contributions to this short debate. I was particularly keen to hear the comments of the noble Lord, Lord Thomas of Gresford, on open justice, and I respectfully endorse them. That is a principle we absolutely share.

I will say a brief word about online hearings, a point which the noble Lord, Lord Ponsonby of Shulbrede, picked up. I want to draw a distinction between the provisions in this instrument, which relate to broadcasting hearings to those watching, and online hearings, when the advocates or witnesses are appearing online, which are slightly different but related and important. I have spoken about that on a number of occasions. Online hearings certainly have their place and, more than that, are likely to be the future of civil and sometimes criminal justice going forward.

As the noble Lord, Lord Ponsonby, said, it is critical to keep standards at the requisite level. I am not sure whether a counsel who hears the phrase “keep the bar high” from a magistrates’ bench would necessarily interpret it in the right way, although that probably lies well beyond my personal experience. As to an example of a case where a judge might say that the hearing should not be broadcast, it would be rare in the Competition Appeal Tribunal for this to happen. There may be cases where you had a vulnerable witness or cases involving children, but I suspect that it will be very much the exception rather than the rule. The critical point is that we allow the individual judge in a case to make that decision for themselves, a point that has been shared across the Committee.

There is other business before the Committee. I do not intend to take more time on this, but I invite the Committee to support this instrument.

Motion agreed.