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Oxera responds to the BIS Consultation on options for reform

Oxera has responded on the options for reform by making three points, as follows.

  • As the consultation makes clear, ‘appeals form a vital part of the regulatory decision-making framework’. Making judicial processes more efficient and harmonising the approaches in different appeals bodies and across different sectors are both sensible objectives, in principle.
  • However, there are questions about the proposed move from appeals on the merits to judicial reviews. This raises concerns that an important check and balance in the system is being weakened, which could lead to poorer decision-making. Appeals on the merits allow for more thorough testing of the evidence and reasoning of the decision, including the economic aspects of the case. The consultation contains limited analysis of whether appeals on the merits are currently problematic, especially as regards competition law appeals (there is somewhat more discussion on regulatory appeals).
  • At the same time, it is unclear whether the costs of appeals are currently as high as suggested in the consultation, and this weakens one of the reasons for the proposed reform. The data indicates that there are fewer than ten appeal cases every year and they are generally completed within a year. They represent a very small fraction of all commercial litigation in the UK, and their costs are less than 0.1% of regulators’ budgets and regulated firms’ investments each year (see section 4 for the quantification).

Download the full response for a more detailed discussion of these points.