Enterprise and Regulatory Reform Bill

Session 2012 - 13
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Enterprise and Regulatory Reform Bill

Enterprise and Regulatory Reform Bill
Schedule 13 — Extension of powers to issue warrants under the 1998 Act to CAT
228

      (2)
In subsection (1), for the words before paragraph (a) substitute “On an
application made to it by the CMA, the High Court or the Tribunal must
issue a warrant if it is satisfied that—”.
      (3)
After subsection (10) insert—
“(10A)
An application for a warrant under this section must be made—
5
(a)
in the case of an application to the High Court, in accordance
with rules of court;
(b)
in the case of an application to the Tribunal, in accordance
with Tribunal rules.”
7     (1)
Section 63 (power to enter business premises under a warrant: Article 22(2)
10
inspections) is amended as follows.
      (2)
In subsection (1), for the words before paragraph (a) substitute “On an
application made to it by the CMA, the High Court or the Tribunal must
issue a warrant if it is satisfied that—”.
      (3)
After subsection (8) insert—
15
“(8A)
An application for a warrant under this section must be made—
(a)
in the case of an application to the High Court, in accordance
with rules of court;
(b)
in the case of an application to the Tribunal, in accordance
with Tribunal rules.”
20
8
In section 65C (interpretation of Part 2A), in subsection (2), after the entry for
“the Treaty” (but before the “and” following it) insert—
““the Tribunal;”
“Tribunal rules;””.
9     (1)
Section 65G (power to enter business premises under a warrant: Article 22(1)
25
investigations) is amended as follows.
      (2)
In subsection (1), for the words before paragraph (a) substitute “On an
application made to it by the CMA, the court or the Tribunal may issue a
warrant if it is satisfied that—”.
      (3)
In subsection (3), for “the judge” substitute “the court or (as the case may be)
30
the Tribunal”.
      (4)
After subsection (8) insert—
“(8A)
An application for a warrant under this section must be made—
(a)
in the case of an application to the court, in accordance with
rules of court;
35
(b)
in the case of an application to the Tribunal, in accordance
with Tribunal rules.”
10    (1)
Section 65H (power to enter domestic premises under a warrant: Article
22(1) investigations) is amended as follows.
      (2)
In subsection (1), for the words before paragraph (a) substitute “On an
40
application made to it by the CMA, the court or the Tribunal may issue a
warrant if it is satisfied that—”.
      (3)
In subsection (3), for “the judge” substitute “the court or (as the case may be)
the Tribunal”.

Enterprise and Regulatory Reform Bill
Schedule 14 — Regulators: use of powers under the 1998 Act
229

      (4)
After subsection (8) insert—
“(8A)
An application for a warrant under this section must be made—
(a)
in the case of an application to the court, in accordance with
rules of court;
(b)
in the case of an application to the Tribunal, in accordance
5
with Tribunal rules.”
Schedule 14
Section 45(5)

Regulators: use of powers under the 1998 Act
Gas Act 1986 (c. 44)
1
The Gas Act 1986 is amended as follows.
10
2     (1)
Section 28 (orders for securing compliance) is amended as follows.
      (2)
In subsections (1), (2) and (4), for “(5) and” (in each place where it occurs)
substitute “(4A) to”.
      (3)
After subsection (4) insert—
“(4A)
Before making a final order or making or confirming a provisional
15
order, the Authority shall consider whether it would be more
appropriate to proceed under the Competition Act 1998.
(4B)
The Authority shall not make a final order or make or confirm a
provisional order if it considers that it would be more appropriate to
proceed under the Competition Act 1998.”
20
      (4)
In subsection (5), omit paragraph (c) and the “or” preceding it.
      (5)
In subsection (6)—
(a)
in the words before paragraph (a), after “the Authority” insert
“decides that it would be more appropriate to proceed under the
Competition Act 1998 or”, and
25
(b)
in paragraph (a), after “that it” insert “has so decided or”.
3
In section 30A (penalties), for subsection (2) substitute—
“(2)
Before imposing a penalty on a regulated person under
subsection (1), the Authority shall consider whether it would be
more appropriate to proceed under the Competition Act 1998.
30
(2A)
The Authority shall not impose a penalty on a regulated person
under subsection (1) if it considers that it would be more appropriate
to proceed under the Competition Act 1998.”
Electricity Act 1989 (c. 29)
4
The Electricity Act 1989 is amended as follows.
35
5     (1)
Section 25 (orders for securing compliance) is amended as follows.
      (2)
In subsections (1), (2) and (4), for “(5) and” (in each place where it occurs)
substitute “(4A) to”.

Enterprise and Regulatory Reform Bill
Schedule 14 — Regulators: use of powers under the 1998 Act
230

      (3)
After subsection (4) insert—
“(4A)
Before making a final order or making or confirming a provisional
order, the Authority shall consider whether it would be more
appropriate to proceed under the Competition Act 1998.
(4B)
The Authority shall not make a final order or make or confirm a
5
provisional order if it considers that it would be more appropriate to
proceed under the Competition Act 1998.”
      (4)
In subsection (5), omit paragraph (d) and the “or” preceding it.
      (5)
In subsection (6)—
(a)
in the words before paragraph (a), after “the Authority” insert
10
“decides that it would be more appropriate to proceed under the
Competition Act 1998 or”, and
(b)
in paragraph (a), after “that it” insert “has so decided or”.
6
In section 27A (penalties), for subsection (2) substitute—
“(2)
Before imposing a penalty on a regulated person under
15
subsection (1), the Authority shall consider whether it would be
more appropriate to proceed under the Competition Act 1998.
(2A)
The Authority shall not impose a penalty on a regulated person
under subsection (1) if it considers that it would be more appropriate
to proceed under the Competition Act 1998.”
20
7
In section 43 (functions with respect to competition), in subsection (6), for the
words from the beginning to “(3) above” substitute “If any question arises as
to whether subsection (2) or (3) above applies to any particular case”.
Water Industry Act 1991 (c. 56)
8
The Water Industry Act 1991 is amended as follows.
25
9     (1)
Section 19 (exception to duty to enforce) is amended as follows.
      (2)
For subsection (1A) substitute—
“(1A)
Before making an enforcement order or confirming a provisional
enforcement order, the Authority shall consider whether it would be
more appropriate to proceed under the Competition Act 1998.
30
(1B)
The Authority shall not make an enforcement order or confirm a
provisional enforcement order if it considers that it would be more
appropriate to proceed under the Competition Act 1998.”
      (3)
In subsection (3)—
(a)
in the words before paragraph (a), for “is satisfied as mentioned in
35
subsection (1A) above” substitute “has decided that it would be more
appropriate to proceed under the Competition Act 1998”, and
(b)
in paragraph (a), after “satisfied” insert “or has so decided”.
10
In section 22A (penalties), for subsection (13) substitute—
“(13)
Before imposing a penalty under this section, the Authority shall
40
consider whether it would be more appropriate to proceed under the
Competition Act 1998.

Enterprise and Regulatory Reform Bill
Schedule 14 — Regulators: use of powers under the 1998 Act
231

(14)
The Authority shall not impose a penalty under this section if it
considers that it would be more appropriate to proceed under the
Competition Act 1998.”
Railways Act 1993 (c. 43)
11
The Railways Act 1993 is amended as follows.
5
12    (1)
Section 55 (orders for securing compliance) is amended as follows.
      (2)
For subsection (5A) substitute—
“(5A)
Before making a final order or making or confirming a provisional
order, the Office of Rail Regulation shall consider whether it would
be more appropriate to proceed under the Competition Act 1998.
10
(5AA)
The Office of Rail Regulation shall not make a final order or make or
confirm a provisional order if it considers that it would be more
appropriate to proceed under the Competition Act 1998.”
      (3)
In subsection (5D)(b), for “(5A)” substitute “(5AA)”.
13
In section 57A (penalties), for subsection (6) substitute—
15
“(6)
Before imposing a penalty under this section, the Office of Rail
Regulation shall consider whether it would be more appropriate to
proceed under the Competition Act 1998.
(7)
The Office of Rail Regulation shall not impose a penalty under this
section if it considers that it would be more appropriate to proceed
20
under the Competition Act 1998.”
14
In section 67 (functions of the Office of Rail Regulation with respect to
competition), in subsection (8), for the words from the beginning to “(3)
above” substitute “If any question arises as to whether subsection (2) or (3)
above applies to any particular case”.
25
Transport Act 2000 (c. 38)
15    (1)
Section 21 of the Transport Act 2000 (exceptions to duties to secure
compliance) is amended as follows.
      (2)
In subsection (1), omit paragraph (b) and the “or” preceding it.
      (3)
After subsection (5) insert—
30
“(6)
Before making a final order or making or confirming a provisional
order, the CAA must consider whether it would be more appropriate
to proceed under the Competition Act 1998.
(7)
The CAA must not make a final order or make or confirm a
provisional order to the extent that it considers that it would be more
35
appropriate to proceed under the Competition Act 1998.”
Communications Act 2003 (c. 21)
16
The Communications Act 2003 is amended as follows.
17
In section 94 (notification of contravention of SMP apparatus conditions), for

Enterprise and Regulatory Reform Bill
Schedule 14 — Regulators: use of powers under the 1998 Act
232

subsection (10) substitute—
“(10)
Before giving a notification under this section, OFCOM must
consider whether it would be more appropriate to proceed under the
Competition Act 1998.
(10A)
OFCOM must not give a notification under this section if they
5
consider that it would be more appropriate to proceed under the
Competition Act 1998.
(10B)
In a case where OFCOM decide that it would be more appropriate to
proceed under the Competition Act 1998, they must publish a
statement to that effect in such manner as they consider appropriate
10
for bringing their decision to the attention of persons whom they
consider are likely to be affected by it.”
18
In section 96A (notification of contravention of condition other than SMP
apparatus condition), for subsection (5) substitute—
“(5)
Before giving a notification under this section, OFCOM must
15
consider whether it would be more appropriate to proceed under the
Competition Act 1998.
(6)
OFCOM must not give a notification under this section if they
consider that it would be more appropriate to proceed under the
Competition Act 1998.
20
(7)
In a case where OFCOM decide that it would be more appropriate to
proceed under the Competition Act 1998, they must publish a
statement to that effect in such manner as they consider appropriate
for bringing their decision to the attention of persons whom they
consider are likely to be affected by it.”
25
Postal Services Act 2011 (c. 5)
19
In Schedule 7 to the Postal Services Act 2011 (enforcement of regulatory
requirements) for paragraph 4 substitute—
“4    (1)
Before giving a notification under paragraph 2, OFCOM must
consider whether it would be more appropriate to proceed under
30
the Competition Act 1998.
      (2)
OFCOM must not give a notification under paragraph 2 if they
consider that it would be more appropriate to proceed under the
Competition Act 1998.
      (3)
In a case where OFCOM decide that it would be more appropriate
35
to proceed under the Competition Act 1998, they must publish a
statement to that effect in such manner as they consider
appropriate for bringing their decision to the attention of persons
whom they consider are likely to be affected by it.”
Health and Social Care Act 2012 (c. 7)
40
20
The Health and Social Care Act 2012 is amended as follows.

Enterprise and Regulatory Reform Bill
Schedule 14 — Regulators: use of powers under the 1998 Act
233

21
In section 105 (discretionary requirements), after subsection (3) insert—
“(3A)
Before imposing a discretionary requirement on a person mentioned
in subsection (1)(b), Monitor must consider whether it would be
more appropriate to proceed under the Competition Act 1998.
(3B)
Monitor must not impose a discretionary requirement on such a
5
person if it considers that it would be more appropriate to proceed
under the Competition Act 1998.”
22
In section 106 (enforcement undertakings), after subsection (3) insert—
“(3A)
Before accepting an enforcement undertaking from a person
mentioned in subsection (1)(b), Monitor must consider whether it
10
would be more appropriate to proceed under the Competition Act
1998.
(3B)
Monitor must not accept an enforcement undertaking from such a
person if it considers that it would be more appropriate to proceed
under the Competition Act 1998.”
15
The Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1))
23
In article 46 of the Electricity (Northern Ireland) Order 1992, in paragraph
(6), for the words from the beginning to “(2A) or (3)” substitute “If any
question arises as to whether paragraph (2) or (3) applies to any particular
case”.
20
The Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6))
24
The Energy (Northern Ireland) Order 2003 is amended as follows.
25    (1)
Article 42 (orders for securing compliance) is amended as follows.
      (2)
In paragraph (1), for “, (5) and” substitute “and (5) to”.
      (3)
In paragraphs (2) and (4), for “(5) and” substitute “(5) to”.
25
      (4)
In paragraph (5), omit sub-paragraph (b) and the “or” preceding it.
      (5)
After that paragraph insert—
   “(5A)
Before making a final order or making or confirming a provisional
order in relation to a licence holder, the Authority shall consider
whether it would be more appropriate to proceed under the
30
Competition Act 1998.
     (5B)
The Authority shall not make a final order or make or confirm a
provisional order in relation to a licence holder if it considers that
it would be more appropriate to proceed under the Competition
Act 1998.”
35
      (6)
In paragraph (7)—
(a)
in the words before sub-paragraph (a), after “(6)” insert “or decides
that it would be more appropriate to proceed under the Competition
Act 1998”, and
(b)
in sub-paragraph (a), after “satisfied” insert “or has so decided”.
40

Enterprise and Regulatory Reform Bill
Schedule 15 — Minor and consequential amendments: Part 4
234

26
In article 45 (financial penalties), for paragraph (3) substitute—
    “(3)
Before imposing a penalty under paragraph (1) or (2) the
Authority shall consider whether it would be more appropriate to
proceed under the Competition Act 1998.
     (3A)
The Authority shall not impose a penalty under paragraph (1) or
5
(2) if it considers that it would be more appropriate to proceed
under the Competition Act 1998.”
The Water and Sewerage Services (Northern Ireland) Order 2006 (S.I. 2006/3336 (N.I. 21))
27
The Water and Sewerage Services (Northern Ireland) Order 2006 is amended
as follows.
10
28    (1)
Article 31 (exceptions to duty to enforce) is amended as follows.
      (2)
In paragraph (1), omit sub-paragraph (d) and the “or” preceding it.
      (3)
After that paragraph insert—
   “(1A)
Before making an enforcement order or confirming a provisional
enforcement order under Article 30, the Authority shall consider
15
whether it would be more appropriate to proceed under the
Competition Act 1998.
     (1B)
The Authority shall not make an enforcement order or confirm a
provisional enforcement order under that Article if it considers
that it would be more appropriate to proceed under the
20
Competition Act 1998.”
      (4)
In paragraph (3)—
(a)
in the words before sub-paragraph (a)—
(i)
for “, (c) or (d)” substitute “or (c)”, and
(ii)
after “paragraph (1)” insert “or decides that it would be more
25
appropriate to proceed under the Competition Act 1998”, and
(b)
in sub-paragraph (a), after “so satisfied” insert “or has so decided”.
29
In article 35 (financial penalties), for paragraph (11) substitute—
   “(11)
Before imposing a penalty under this Article the Authority shall
consider whether it would be more appropriate to proceed under
30
the Competition Act 1998.
     (12)
The Authority shall not impose a penalty under this Article if it
considers that it would be more appropriate to proceed under the
Competition Act 1998.”
Schedule 15
35
Section 50

Minor and consequential amendments: Part 4