COMMONS AMENDMENTS (Hansard, 2 November 1988)

§ Lord Young of Graffham
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 145 and 146. At the same time I shall speak to Amendments Nos. 147, 147A and 148 to 151 inclusive. Except for Amendment No. 147A, in the name of the noble Lord, Lord Lloyd of Kilgerran, this group of amendments is concerned with various aspects of the jurisdiction and procedures of the Copyright Tribunal. Amendment No. 145 to Clause 142 contains minor drafting changes consequential on amendments elsewhere in the Bill.
Amendment No. 146 to Clause 143 meets a criticism made to us by the Council on Tribunals. The council has pointed out that while subsection (2) of Clause 143 provides that rules may apply any of the provisions of arbitration legislation, this will not necessarily enable the rules expressly to set out the relevant provisions of that legislation. In its view it is preferable for all the procedural rules for a tribunal to be contained in a single legislative document. This 309 amendment will ensure that must be done in the case of the rules of the Copyright Tribunal.
Amendments Nos. 147 to 151 (again excluding Amendment No. 147A) do two things. First, they meet a suggestion made to us by the Council on Tribunals concerning the procedures under the Bill governing appeals to the High Court or Court of Session from decisions of the Copyright Tribunal. These procedures, which as the Bill stands broadly re-enact those of the 1956 Act in respect of appeals from decisions of the Performing Right Tribunal, require that appeals shall be by way of stating a case for the opinion of the court, which is done by the tribunal itself. In the council's view, the normal and better procedure is to allow the party concerned to appeal direct. We agree that this would be a desirable change and one which would help to speed up the hearing of appeals from decisions of the tribunal. Appeals would still be limited to points of law only.
The second objective of the amendments is to remove the present restriction which prevents further appeals being made from decisions of the High Court and Court of Session. The effect of the amendments would be to allow such decisions to be appealed, as appropriate, to the Court of Appeal or this House.
Amendment No. 147A, in the name of the noble Lord, Lord Lloyd, is, if I have interpreted it correctly, consequential on his Amendment No. 126B concerning backdating which we debated earlier. I have already explained why I thought that that amendment was misconceived and why the Bill as amended in the Commons and by Amendments Nos. 115A and 126C makes adequate provision with regard to backdating. The tribunal rules, which will mainly be concerned with its procedures, are in any case not the place to deal with such major issues. The necessary powers should be provided on the face of the Bill, as we have in fact provided them. Further, the drafting of the amendment is defective in that it refers to clauses of the Bill which either have been or shortly will be deleted from the Bill.
I hope that in the light of what I have said the noble Lord will be prepared to withdraw Amendment No. 147A, which I shall otherwise have to resist.

§ Lord Williams of Elvel
My Lords, I thought the noble Lord was to speak also to a further grouping including Amendment No. 148. If I am wrong, I will reserve my comments.

§ Lord Young of Graffham
Yes, my Lords, I have.

§ Lord Williams of Elvel
My Lords, the question raised by Amendment No. 148 is what is the definition of "on any point of law". I ask the noble Lord whether the proceedings of the tribunal—I can almost answer the question before I start—would not themselves be open to judicial review in the sense that the tribunal is required to interpret its remit as required by statute. If that is the case and since it is required by statute in this Bill to interpret existing licences when giving judgments about licences of a 310 similar nature or upon a similar subject, is not the judicial review procedure open to any aggrieved potential licensee? If that is the case, how can one restrict this either in the High Court or in the Court of Session to mere points of law?

§ Lord Young of Graffham
My Lords, if we provide for it in the way that the clause does, then it would not be open to judicial review. This is the way in which it is normally done.

§ Lord Williams of Elvel
My Lords, I am most grateful to the noble Lord. I did not realise that this was the way to avoid judicial review and I understand now that that is what is intended. Nevertheless, my point remains that if the tribunal is instructed under the Bill before your Lordships and, when it is enacted, under the Act, to have regard to the terms of comparable licences which apply in another part of the Bill which I cannot recall, is that procedure, when a judgment is made upon a licence, a point of law or is it something else? Can the matter taken to a higher authority or not?

§ Lord Young of Graffham
My Lords, I am able to assure the noble Lord that it is a point of law.

§ Lord Williams of Elvel
My Lords. I am very grateful to the noble Lord. What we have now established in respect of the tribunal and existing licences under the Bill is that matters of fact and interpretation can be taken to a higher authority; namely, the High Court or the Court of Session. Therefore, what is the point of simply having a point of law down here?

§ Lord Young of Graffham
My Lords, that is the proper way in which this matter should be expressed. I believe that that is the way in which it is done in other circumstances and should be done here.