Regulatory Panel Reform: Consultation Response
Proposal 3: Changes to the Regulatory decisions: procedures and guidance for regulatory hearings
Consultation question 6
Do you agree with the proposed changes to ‘Regulatory decisions: procedures and guidance for regulatory hearings’?
The majority of respondents disagreed with the proposal. Almost all of the respondents who disagreed with the proposal provided comments to set out their concerns.
Respondents opposed to the proposal noted the following concerns:
- changes to the dates for the production of documents were unnecessarily onerous, and the proposed revision to 21 days was not justified
- an extension to the time available to the Panel to review the bundles should also be extended to the Licensee
- an Adjudicator who is part of a Panel cannot also serve as legal adviser to that Panel. Even in cases where they do not sit on the Panel, their role in past and future cases will impact their impartiality
- offering only 3 hearing dates over 2 months would create difficulty for external representatives and suggested 4 days over 3 months
- requiring unspecified ‘good reasons’ for the late production of documents could lead to a miscarriage of justice.
With respect to the steer process for regulatory settlements, several respondents suggested that the opportunity to request a steer should also be open to licensees and applicants.
One respondent suggested that the Commission consider the Early Neutral Evaluation dispute resolution model ('ENE') whereby an independent and impartial evaluator provides an assessment on the merits of each party’s case which may serve as a basis for settlement and/or narrowing the issues.
Clarification was requested on the proposed guidance on the definition of ‘ordinary’ (Para 1.10), ‘good reasons’ (Para 2.9), and points on timing, as well as details on ‘late stage’, ‘necessary’ and the reference to ‘fairness to both parties’.
One respondent suggested that any proposals relating to process and procedures should also be made reciprocal in that there should equally be minimum turnaround deadlines imposed on the regulator.
Respondents who indicated their agreement with the proposals noted the need for people with relevant experience to be included in the Panel. Two respondents indicated they agreed to the proposed changes with the exception of the use of Adjudicators.
We note the concerns raised about the need to produce documents 21 days in advance. However, we also note that Panel dates are usually arranged months in advance (except for suspension hearings, where urgency is obviously important and timescales are necessarily compressed), and that it is in the interests of good decision-making to give the Panel and the parties sufficient time to familiarise themselves with case material. We therefore intend to retain the proposed change to 21 days.
As regards the suggestion that the extension in service time should be reciprocal as between the Panel and the Licensee, we note that the Panel will have had no engagement with the case until submissions are received, whereas Commission officials and the Licensee will be much more familiar with the material, having been involved in the case for considerable time in advance of service of submissions.
Regarding concerns about the requirement to have a “good reason” to present late submissions, and a lack of specificity about what a “good reason” might entail, we intend to make the changes as proposed. We consider that this requirement provides appropriate scope for the Panel to handle issues on a case by case basis with fairness and discretion, whilst also balancing the integrity of decision-making by ensuring the Panel and the parties to it have had sufficient time to review relevant material. We do not consider that an exhaustive definition of a “good reason” could practically be provided, and would in any event risk the Panel being unable to act fairly in any particular case.
The Commission maintains that an Adjudicator can act as both legal adviser and panel member and considers that no procedural unfairness arises.
We acknowledge concerns about the viability of proposals to offer 3 hearing dates over 2 months, and note the proposal that we should instead offer 4 dates over 3 months. We intend to adopt the proposal of 4 dates over 3 months to better enable parties to be represented by their representatives of choice. However, the Commission does not consider that there is an absolute right to have a Panel hearing listed for the convenience of a party’s representative, and a departure from the 4 dates offered will only be permitted in exceptional circumstances so as to ensure a fair and prompt resolution of the issues.
Given that the Adjudicator will be a legally qualified person, we also intend to amend guidance to indicate that any Case Management Hearings will be heard solely by the Adjudicator.
We noted the suggestion of an ENE stage, but do not intend to pursue this option at this time.
Proposal 2: Changes to the ‘Scheme of Delegation of licensing and regulatory decisions Next section
Proposal 4: Changes to the Licensing decisions: procedures and guidance for licensing hearings
Last updated: 21 July 2021
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