142.140-146

House of Commons

Session 2013 - 14
Internet Publications
Other Bills before Parliament

Lords Amendments to the Financial Services (Banking Reform) Bill

140

(c)
conditions requiring the appeal to be considered together with

other appeals (including appeals relating to different matters or

decisions and appeals brought by different persons).

    (10)
Where a decision is made to grant or to refuse an application for

permission, an authorised member of the CMA must notify the decision,

giving reasons, to the following persons—

(a)
the appellant, and

(b)
the Payment Systems Regulator.

    (11)
A decision of the CMA under this paragraph must be published, in such

manner as an authorised member of the CMA considers appropriate, as

soon as reasonably practicable after it is made.

    (12)
The CMA may exclude from publication under sub-paragraph (11) any

information which it is satisfied is—

(a)
commercial information, the disclosure of which would, or

might in the CMA’s opinion, significantly harm the legitimate

business interests of an undertaking to which it relates, or

(b)
information relating to the private affairs of an individual, the

disclosure of which would, or might in the CMA’s opinion,

significantly harm the individual’s interests.

Suspension of decision

4    (1)
The CMA may direct that, pending the determination of an appeal

against a decision of the Payment Systems Regulator—

(a)
the decision is not to have effect, or

(b)
the decision is not to have effect to such extent as may be

specified in the direction.

      (2)
The power to give a direction under this paragraph is exercisable only

where—

(a)
an application for its exercise has been made by the appellant at

the same time as the appellant made an application in accordance

with paragraph 3 for permission to bring an appeal against a

decision of the Payment Systems Regulator,

(b)
the Payment Systems Regulator has been given an opportunity of

making representations or observations, in accordance with

paragraph 5(2), and

(c)
the balance of convenience does not otherwise require effect to be

given to the decision pending that determination.

      (3)
The CMA’s decision on an application for a direction under this

paragraph must be made—

(a)
where the Payment Systems Regulator makes representations or

observations in accordance with paragraph 5(2), before the end

of 10 working days beginning with the first working day after the

day on which those representations or observations are received;

(b)
in any other case, before the end of 14 working days beginning

with the first working day following the day on which the

application under sub-paragraph (2)(a) is received.

      (4)
The appellant must send the Payment Systems Regulator a copy of the

application for a direction under this paragraph at the same time as it is

sent to the CMA.

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      (5)
The CMA’s decision whether to give a direction is to be taken by an

authorised member of the CMA.

      (6)
A direction under this paragraph must be—

(a)
given by an authorised member of the CMA, and

(b)
published, in such manner as an authorised member of the CMA

considers appropriate, as soon as reasonably practicable after it

is given.

      (7)
Sub-paragraph (12) of paragraph 3 applies to the publication of a

direction under sub-paragraph (6) of this paragraph as it applies to the

publication of a decision under sub-paragraph (11) of that paragraph.

Time limit for representations and observations by the Regulator

5    (1)
Sub-paragraph (2) applies where the Payment Systems Regulator wishes

to make representations or observations to the CMA in relation to—

(a)
an application for permission to bring an appeal under

paragraph 3;

(b)
an application for a direction under paragraph 4.

      (2)
The Payment Systems Regulator must make the representations or

observations in writing before the end of 10 working days beginning

with the first working day after the day on which it received a copy of

the application under paragraph 3(5) or 4(4) (as the case may be).

      (3)
Sub-paragraph (4) applies where an application for permission to bring

an appeal has been granted and the Payment Systems Regulator wishes

to make representations or observations to the CMA in relation to—

(a)
the Payment Systems Regulator’s reasons for the decision in

relation to which the appeal is being brought;

(b)
any grounds on which that appeal is being brought against that

decision.

      (4)
The Payment Systems Regulator must make the representations or

observations in writing before the end of 15 working days beginning

with the first working day after the day on which permission to bring the

appeal was granted.

      (5)
The Payment Systems Regulator must send a copy of the representations

and observations it makes under this paragraph to the appellant.

Consideration and determination of appeal by group

6    (1)
A group constituted by the chair of the CMA under Schedule 4 to the

Enterprise and Regulatory Reform Act 2013 for the purpose of carrying

out functions of the CMA with respect to an appeal must consist of three

members of the CMA panel.

      (2)
A decision of the group is effective if, and only if—

(a)
all the members of the group are present when it is made, and

(b)
at least two members of the group are in favour of the decision.

Time limits for determining appeal

7    (1)
The CMA must determine an appeal within the period of 6 months

beginning with the permission date.

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This is subject to sub-paragraph (2).

      (2)
If—

(a)
the CMA has received representations on the timing of the

determination from a party to the appeal, and

(b)
it is satisfied that there are special reasons why the determination

cannot be made within the period specified in sub-paragraph (1),


the CMA must determine the appeal within the period specified by it,

which must not be longer than the period of 7 months beginning with the

permission date.

      (3)
In a case where sub-paragraph (2) applies, the CMA must also—

(a)
inform the parties to the appeal of the time limit for determining

the appeal, and

(b)
publish that time limit in such manner as it considers appropriate

for the purpose of bringing it to the attention of any other persons

likely to be affected by the determination.

      (4)
In this paragraph the “permission date” is the date on which the CMA

gave permission to bring the appeal in accordance with section (Appeals:

general)(8).

Matters to be considered on appeal

8    (1)
The CMA, if it thinks it necessary to do so for the purpose of securing the

determination of an appeal within the period provided for by paragraph

7, may disregard—

(a)
any or all matters raised by an appellant that were not raised by

that appellant at the time of the relevant application, and

(b)
any or all matters raised by the Payment Systems Regulator that

were not contained in representations or observations made for

the purposes of the appeal in accordance with paragraph 5.

      (2)
In this paragraph “relevant application” means an application under

paragraph 3 or 4.

Production of documents etc

9    (1)
For the purposes of this Schedule, the CMA may by notice—

(a)
require a person to produce to the CMA the documents specified

or otherwise identified in the notice;

(b)
require any person who carries on a business to supply to the

CMA such estimates, forecasts, returns or other information as

may be specified or described in the notice in relation to that

business.

      (2)
The power to require the production of a document, or the supply of any

estimate, forecast, return or other information, is a power to require its

production or, as the case may be, supply—

(a)
at the time and place specified in the notice, and

(b)
in a legible form.

      (3)
No person is to be compelled under this paragraph to produce a

document or supply an estimate, forecast, return or other information

which the person could not be compelled to produce in civil proceedings

in the High Court or Court of Session.

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      (4)
An authorised member of the CMA may, for the purpose of the exercise

of the functions of the CMA, make arrangements for copies to be taken

of a document produced or an estimate, forecast, return or other

information supplied to it under this paragraph.

      (5)
A notice for the purposes of this paragraph—

(a)
may be issued on the CMA’s behalf by an authorised member of

the CMA;

(b)
must include information about the possible consequences of not

complying with the notice (as set out in paragraph 13).

Oral hearings

10  (1)
For the purposes of this Schedule an oral hearing may be held, and

evidence may be taken on oath—

(a)
by a person considering an application for permission to bring an

appeal under paragraph 3,

(b)
by a person considering an application for a direction under

paragraph 4, or

(c)
by a group with the function of determining an appeal;


and, for that purpose, such a person or group may administer oaths.

      (2)
The CMA may by notice require a person—

(a)
to attend at a time and place specified in the notice, and

(b)
at that time and place, to give evidence to a person or group

mentioned in sub-paragraph (1).

      (3)
At any oral hearing the person or group conducting the hearing may—

(a)
require the appellant or the Payment Systems Regulator, if

present at the hearing, to give evidence or to make

representations or observations, or

(b)
require a person attending the hearing as a representative of the

appellant or of the Payment Systems Regulator to make

representations or observations.

      (4)
A person who gives oral evidence at the hearing may be cross-examined

by or on behalf of any party to the appeal.

      (5)
If the appellant, the Payment Systems Regulator, or the appellant’s or

Payment Systems Regulator’s representative is not present at a

hearing—

(a)
there is no requirement to give notice to that person under sub-

paragraph (2), and

(b)
the person or group conducting the hearing may determine the

application or appeal without hearing that person’s evidence,

representations or observations.

      (6)
No person is to be compelled under this paragraph to give evidence

which the person could not be compelled to give in civil proceedings in

the High Court or Court of Session.

      (7)
Where a person is required under this paragraph to attend at a place

more than 10 miles from the person’s place of residence, an authorised

member of the CMA must arrange for the person to be paid the

necessary expenses of attendance.

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      (8)
A notice for the purposes of this paragraph may be issued on the CMA’s

behalf by an authorised member of the CMA.

Written statements

11  (1)
The CMA may by notice require a person to produce a written statement

with respect to a matter specified in the notice to—

(a)
a person who is considering, or is to consider, an application for

a direction under paragraph 4, or

(b)
a group with the function of determining an appeal.

      (2)
The power to require the production of a written statement includes

power—

(a)
to specify the time and place at which it is to be produced, and

(b)
to require it to be verified by a statement of truth;


and a statement required to be so verified must be disregarded unless it

is so verified.

      (3)
No person is to be compelled under this paragraph to produce a written

statement with respect to any matter about which the person could not

be compelled to give evidence in civil proceedings in the High Court or

Court of Session.

      (4)
A notice for the purposes of this paragraph may be issued on the CMA’s

behalf by an authorised member of the CMA.

Expert advice

12
Where permission to bring an appeal is granted under paragraph 3, the

CMA may commission expert advice with respect to any matter raised

by a party to the appeal.

Defaults in relation to evidence

13  (1)
If a person (“the defaulter”)—

(a)
fails to comply with a notice issued or other requirement

imposed under paragraph 9, 10 or 11,

(b)
in complying with a notice under paragraph 11, makes a

statement that is false in any material particular, or

(c)
in providing information verified in accordance with a statement

of truth required by appeal rules, provides information that is

false in a material particular,


an authorised member of the CMA may certify that fact to the court.

      (2)
If the court is satisfied that the defaulter failed without reasonable excuse

to comply with the notice or other requirement, or made the false

statement, or provided the false information, it may deal with the

defaulter (and in the case of a body corporate, any director or other

officer of the body) as if that person were in contempt.

      (3)
In sub-paragraph (2) “officer”, in relation to a limited liability

partnership, means a member of the limited liability partnership.

      (4)
In this paragraph “court” means—

(a)
the High Court, or

(b)
in Scotland, the Court of Session.

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14  (1)
A person who wilfully alters, suppresses or destroys a document which

the person has been required to produce under paragraph 9 is guilty of

an offence.

      (2)
A person guilty of an offence under this paragraph is liable—

(a)
on summary conviction—

(i)
in England and Wales, to imprisonment for a term not

exceeding 12 months (or 6 months, if the offence was

committed before the commencement of section 154(1) of

the Criminal Justice Act 2003) or a fine, or both;

(ii)
in Scotland, to imprisonment for a term not exceeding 12

months or a fine not exceeding the statutory maximum,

or both;

(iii)
in Northern Ireland, to imprisonment for a term not

exceeding 6 months or a fine not exceeding the statutory

maximum, or both;

(b)
on conviction on indictment, to imprisonment for a term not

exceeding 2 years or a fine, or both.

Determination of appeal by CMA

15  (1)
A determination by the CMA on an appeal—

(a)
must be contained in an order made by the CMA;

(b)
must set out the reasons for the determination;

(c)
takes effect at the time specified in the order or determined in

accordance with provision made in the order;

(d)
must be notified by the CMA to the parties to the appeal;

(e)
must be published by the CMA—

(i)
as soon as reasonably practicable after the determination

is made;

(ii)
in such manner as the CMA considers appropriate for the

purpose of bringing the determination to the attention of

any person likely to be affected by it (other than a party to

the appeal).

      (2)
The CMA may exclude from publication under sub-paragraph (1)(e) any

information which it is satisfied is—

(a)
commercial information, the disclosure of which would, or

might in the CMA’s opinion, significantly harm the legitimate

business interests of an undertaking to which it relates, or

(b)
information relating to the private affairs of an individual, the

disclosure of which would, or might in the CMA’s opinion,

significantly harm the individual’s interests.

      (3)
The Payment Systems Regulator must take such steps as it considers

necessary for it to comply with an order of the CMA made by virtue of

sub-paragraph (1)(a).

      (4)
The steps must be taken—

(a)
if a time is specified in (or is to be determined in accordance with)

the order, within that time;

(b)
in any other case, within a reasonable time.

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Appeal rules

16  (1)
The CMA Board may make rules of procedure regulating the conduct

and disposal of appeals.

      (2)
Those rules may include provision supplementing the provisions of this

Schedule in relation to any application, notice, hearing, power or

requirement for which this Schedule provides; and that provision may,

in particular, impose time limits or other restrictions on—

(a)
the taking of evidence at an oral hearing, or

(b)
the making of representations or observations at such a hearing.

      (3)
The CMA Board must publish rules made under this paragraph in such

manner as it considers appropriate for the purpose of bringing them to

the attention of those likely to be affected by them.

      (4)
Before making rules under this paragraph, the CMA Board must consult

such persons as it considers appropriate.

      (5)
Rules under this paragraph may make different provision for different

cases.

Costs

17  (1)
A group that determines an appeal must make an order requiring the

payment to the CMA of the costs incurred by the CMA in connection

with the appeal.

      (2)
An order under sub-paragraph (1) must require those costs to be paid—

(a)
where the appeal is allowed in full, by the Payment Systems

Regulator;

(b)
where the appeal is dismissed in full, by the appellant;

(c)
where the appeal is partially allowed, by one or more parties in

such proportions as the CMA considers appropriate in all the

circumstances.

      (3)
The group that determines an appeal may also make such order as it

thinks fit for requiring a party to the appeal to make payments to another

party in respect of costs reasonably incurred by that other party in

connection with the appeal.

      (4)
A person who is required by an order under this paragraph to pay a sum

to another person must comply with the order before the end of the

period of 28 days beginning with the day after the making of the order.

      (5)
Sums required to be paid by an order under this paragraph but not paid

within the period mentioned in sub-paragraph (4) are to bear interest at

such rate as may be determined in accordance with provision contained

in the order.

      (6)
Any costs payable by virtue of an order under this paragraph and any

interest that has not been paid may be recovered as a civil debt by the

person in whose favour the order is made.

Interpretation

18  (1)
In this Schedule—