EXERCISING OF ANY TELECOMMUNICATIONS DISPUTE RESOLUTION FUNCTION (Hansard, 16 January 1992)

§ Mr. Hain

I beg to move, That the clause be read a Second time.

I do not make these remarks in an adversarial spirit, and I may even spare the Minister the sort of peroration for which he chided me in an earlier debate—most unfairly, I thought.

That is not to say that the new clause does not represent a serious issue; it is an extremely serious issue, as I shall suggest later. However, in Committee the Minister showed a fair degree of sympathy with the thinking behind the newclause, saying: I shall certainly reflect further … and … give more information on Report".—[Official Report, Standing Committee E, 17 December 1991; c. 383.] I trust that we will not be disappointed this evening, given that expression of intent.

The new clause deals with a serious anomaly in the Bill, which is that the regulator has a quasi-judicial power, yet no clear legal obligation to give reasons for his decisions on disputes such as those over billing, charging, bad debt, 1173 deposits and so on. That leaves the public in the dark and it leaves British Telecom—or, for that matter, any other designated operator—in the dark over policy standards. If there is a dispute between a customer and British Telecom, surely BT should be fully aware of the reasons for the regulator's decision on the dispute, so that it can then change its policy, alter its standards and ensure that the mistake is not repeated. Similarly, the customer should be aware of the reasons for the regulator's decision.

If the tribunals legislation is applied in the way that the clause suggests, section 12 of the Act would require the director general to give reasons for his decision. The new clause would accomplish that task and remove a serious anomaly. It would also allow a right of appeal to the courts which is presently denied to any complainant who feels that he has been unfairly treated by the regulator or by a designated telecommunications operator such as BT.

The application of the Tribunals and Inquiries Act 1971 to the Director General of Telecommunications would allow an appeal on a point of law in the High Court against the director general's decision. Under the Bill, the director general's decision is or could be final and would preclude an appeal on a point of law, although the question of a judicial review may remain open. The Minister has said: Let me first reassure him that the director generals will give reasons. Were they not to do that, the decisions could be subject to judicial review. He also said: I think that regulators should give reasons, and will have to do so under the Bill. If they do not, they will have the sanction of judicial review."—[Official Report, Standing Committee E,17 December 1991; c. 382–83.] Far be it from me as a humble Back Bencher to disagree with the no doubt eminent advice of the vast ranks of the Minister's civil servants, which no doubt include learned civil servants. However, I have taken legal advice, and I am told that the Minister's statement is wrong in law on two counts. First, there is nothing in the Bill to oblige the director general or the arbitrator to give reasons for his decision. Accordingly, the Minister must be relying on a purported statement of general law.

Secondly, there is no general rule of administrative law obliging regulators and other administrative officials carrying out judicial—type functions to give reasons for their decisions. If there were such a general rule, it is accepted that failure to give reasons would be a ground for judicial review. I am also advised that the Minister is wrong to say that failure to give reasons would attract the sanction of judicial review.

Statutory tribunals listed in the Tribunals and Inquiries Act are required to give reasons, unless they are covered by one of the exceptions in the Act. There are cases which suggest that a court could hold that a statutory tribunal not listed in the Act must give reasons for its decisions. However, there is no general rule of law that tribunals, or administrative authorities which are not called tribunals but carry out judicial—type functions, such as the Director General of Telecommunications, must give reasons for their decisions.

It is important for the Minister to define a tribunal in this context, because it is not defined in general law. When he is resolving a dispute in this manner is the Director General of Telecommunications acting as a tribunal on, for example, a request for a deposit? That issue can be satisfactorily settled only by including a specific provision 1174 in the Bill that the director general is a tribunal in this context and has a specific obligation to give reasons for his decisions.

The essential point is that, although it is possible for a court to be persuaded to hold that a director general was acting as a tribunal and may also be persuaded to hold that he was a formal tribunal of the kind that the law recognised as obliged to give proper reasons for its decisions, there is no certainty that a court would so hold. It is wrong for there to be uncertainty about the director general's duty in this respect. It should not be left to British Telecom or a customer or a complainant against BT who is dissatisfied with the director general's decisions, but has received no reasons for them, to have to test the law by seeking a judicial review to find out whether the director general is obliged to give reasons for his decisions.

The issue should not be left to that complicated internecine process but should be made specific in the legislation and should not rest on the say-so of a Minister in Committee or in the House. It is almost an insult to the intelligence of consumers, if not to the House, to say that somebody who is not satisfied with the director general's decision should have to rely on a judicial review. The whole process of such a review is extremely complex and consists of a number of stages. To stop frivolous applications one has first to apply for permission to apply. It is time-consuming and costly and, as far as I am aware, there is no entitlement to legal aid for those seeking leave to appeal to a judicial review.

It is not a realistic option for a consumer who is not satisfied with the director general's decision. A dissatisfied consumer or a company such as BT should not have to resort to judicial review. It is nonsense. The legislation should stipulate that the director general should give reasons for his decisions in resolving disputes. The Minister must concede that this is a basic matter of a consumer rights.

§ Mr. Redwood

As the hon. Member for Neath (Mr. Hain) says, I undertook in Committee to provide more information if the Council on Tribunals came to a stronger view on dispute resolution by the regulators. The council has done so because it has concluded that it should seek supervision over adjudication functions of the regulators. The implications of that are that the council would wish to oversee the setting up and operation of procedures which might involve oral hearings of a tribunal type. The council is not looking at the complaints procedures of any of the utilities, as the Opposition previously implied. Under the tribunals legislation, it would not provide relief in a particular case. It is concerned with procedures.

In the light of the council's view, the Government are now considering how best to proceed. Departments are considering their position with their regulators, because each one raises somewhat different issues. They will liaise with the council and decide on each of the regulators. I shall look at telecommunications with an open mind and in the light of what the hon. Gentleman has said.

If Departments reach agreement with the council which necessitates formal supervision to be stated, that will be done by the Lord Chancellor's Department as an order under the Tribunals and Inquiries Act 1971. I hope that the hon. Gentleman will accept the promise that we are reviewing the matter in the light of the council's statement. He might agree that the route that we suggest is a better legal route than an amendment. I cannot say that our legal 1175 advice is the same. The views that I expressed in Committee obviously depended on legal advice to the Government, and our view is still that these matters could be subject to judicial review in the way that I then described.