Enterprise and Regulatory Reform Bill

Session 2012 - 13
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Other Bills before Parliament

Enterprise and Regulatory Reform Bill

Enterprise and Regulatory Reform Bill
Schedule 4 — The Competition and Markets Authority
Part 1 — General
96

(a)
the exercise during the year by the CMA of its functions under Part
1 of the 1998 Act or Part 4 of the 2002 Act in cases in which the
functions are or were exercisable concurrently by one or more
sectoral regulators,
(b)
the exercise during the year by each sectoral regulator of its functions
5
under Part 1 of the 1998 Act or Part 4 of the 2002 Act, and
(c)
any decision made during the year by a sectoral regulator, in respect
of a case in relation to which the regulator considers that its functions
under Part 1 of the 1998 Act were exercisable, that it was more
appropriate for it to proceed by exercising functions other than those
10
it has under that Part of that Act.
      (4)
The CMA is not required to include information in a report under this
paragraph if it considers that doing so would, or would be likely to,
prejudice the exercise of any of the functions of the CMA or a sectoral
regulator.
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      (5)
In preparing a report under this paragraph, the CMA must consult each
sectoral regulator.
      (6)
The CMA must publish a report prepared under this paragraph in whatever
way it considers appropriate.
      (7)
Each of the following is a sectoral regulator—
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(a)
the Office of Communications;
(b)
the Gas and Electricity Markets Authority;
(c)
the Water Services Regulation Authority;
(d)
the Office of Rail Regulation;
(e)
the Northern Ireland Authority for Utility Regulation;
25
(f)
the Civil Aviation Authority;
(g)
Monitor.
Documents
17    (1)
The application of the CMA’s seal must be authenticated by the signature
of—
30
(a)
a person who is a member of the CMA Board, or
(b)
a person authorised (generally or specifically) for that purpose by the
CMA.
      (2)
A document purporting to be duly executed under the CMA’s seal or signed
on its behalf—
35
(a)
is to be received in evidence;
(b)
is to be taken to be duly signed or sealed unless the contrary is
shown.
      (3)
But this paragraph does not apply in relation to a document which is, or is
to be, signed in accordance with the law of Scotland.
40
Membership of committees and sub-committees
18    (1)
The members of a committee or sub-committee of the CMA may include
persons who are not members of the CMA.

Enterprise and Regulatory Reform Bill
Schedule 4 — The Competition and Markets Authority
Part 1 — General
97

      (2)
A sub-committee may include persons who are not members of the
committee that established it.
Additional powers
19
The CMA may—
(a)
if so requested by the Secretary of State, represent the government of
5
the United Kingdom in matters relating to international relations in
any field connected to its functions, and
(b)
promote good practice outside the United Kingdom in the carrying
on of activities which may affect the economic interests of consumers
in the United Kingdom.
10
20    (1)
The CMA may do anything that is calculated to facilitate, or is conducive or
incidental to, the performance of its functions.
      (2)
The power in sub-paragraph (1) is subject to any restrictions imposed by or
under any enactment.
Public records
15
21
In Schedule 1 to the Public Records Act 1958 (definition of public records),
in Part 2 of the Table at the end of paragraph 3, at the appropriate place
insert—
“Competition and Markets Authority.”
Parliamentary Commissioner
20
22
In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc
subject to investigation) at the appropriate place insert—
“Competition and Markets Authority.”
Disqualification
23
In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975
25
(bodies of which all members are disqualified) at the appropriate place
insert—
“The Competition and Markets Authority.”
24
In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification
Act 1975 (bodies of which all members are disqualified), at the appropriate
30
place insert—
“The Competition and Markets Authority.”
Freedom of information
25
In Part 1 of Schedule 1 to the Freedom of Information Act 2000 (definition of
public authority: general)—
35
(a)
in paragraph 1 after “other than” insert “—
(a)
the Competition and Markets Authority,
(b)
”;
(b)
after paragraph 1 insert—
“1ZA
The Competition and Markets Authority, in respect of
40
information held otherwise than as a tribunal.”

Enterprise and Regulatory Reform Bill
Schedule 4 — The Competition and Markets Authority
Part 2 — The CMA Board
98

Equality
26
In Part 1 of Schedule 19 to the Equality Act 2010 (public authorities: general),
under the heading “Industry, business, finance etc” at the appropriate place
insert—
“The Competition and Markets Authority.”
5
Part 2
The CMA Board
Membership
27
The CMA Board is to consist of—
(a)
the chair;
10
(b)
the members appointed under paragraph 1(1)(b) to membership of
the CMA Board.
Functions
28
Except where otherwise provided by or under any enactment, the functions
of the CMA are exercisable by the CMA Board on behalf of the CMA.
15
Delegation
29    (1)
Anything that the CMA Board is required or permitted to do (including
conferring authorisation under this sub-paragraph) may be done by—
(a)
a member of the CMA Board, or a member of staff of the CMA, who
has been authorised for that purpose by the CMA Board, whether
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generally or specifically;
(b)
a committee or sub-committee of the CMA Board that has been so
authorised.
      (2)
Sub-paragraph (1) does not apply to the functions of deciding—
(a)
whether the duty to publish a market study notice under section
25
130A of the Enterprise Act 2002 applies;
(b)
whether to propose to make, or to make, a reference under section
131 of that Act;
(c)
for the purposes of the requirement imposed by section 131A(2)(b) of
that Act, whether the CMA is proposing to make a decision as to
30
whether to make a reference under section 131 of that Act in a way
that is likely to have a substantial impact on the interests of any
person;
(d)
whether section 140A of that Act applies in respect of a particular
case;
35
(e)
whether to accept an undertaking under section 154 of that Act, or to
vary or supersede or release an undertaking under that section;
(f)
for the purposes of the requirement imposed by section 169(2) of that
Act, whether the CMA is proposing to make a decision to make a
reference under section 131 of that Act in a way that is likely to have
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a substantial impact on the interests of any person.

Enterprise and Regulatory Reform Bill
Schedule 4 — The Competition and Markets Authority
Part 3 — The CMA panel
99

      (3)
Sub-paragraph (1)(b) does not apply to a committee or sub-committee
whose members include any person who is not a member of the CMA or of
its staff.
30
Paragraph 29(1) is subject to provision in rules made under section 51 of the
Competition Act 1998, by virtue of paragraph 1A of Schedule 9 to that Act,
5
in respect of the exercise of a function of the CMA under Part 1 of that Act.
Proceedings
31    (1)
The CMA Board may regulate its own proceedings.
      (2)
The CMA Board must consult the Secretary of State before making or
revising rules and procedures, under sub-paragraph (1), for dealing with—
10
(a)
conflicts of interest, or
(b)
quorum.
Validity
32
The validity of anything done by the CMA Board is not affected by—
(a)
a vacancy;
15
(b)
a defective appointment.
Reference of matter to the chair
33    (1)
This paragraph applies where the CMA Board is to consider whether a
matter should be referred to the chair for the constitution of a group under
this Schedule.
20
      (2)
Before the CMA Board considers whether to refer the matter to the chair, the
chair must determine whether a person who is a member of the CMA Board
might reasonably be expected to be a member of a group constituted in
connection with the matter.
      (3)
If the chair determines that a person who is a member of the CMA Board
25
might reasonably be expected to be a member of such a group, that person
is not to participate in the CMA Board’s consideration of whether to refer the
matter to the chair.
Part 3
The CMA panel
30
The CMA panel
34
The CMA panel is a panel of persons available for selection as members of a
group constituted in accordance with this Part of this Schedule.
Membership of CMA panel
35    (1)
The CMA panel is to consist of—
35
(a)
at least one person (a “newspaper panel member”) appointed to the
CMA panel under paragraph 1(1)(b) for the purpose of being
available for selection as a member of a group constituted to carry
out functions on behalf of the CMA with respect to a newspaper
merger reference (a “newspaper merger reference group”);
40

Enterprise and Regulatory Reform Bill
Schedule 4 — The Competition and Markets Authority
Part 3 — The CMA panel
100

(b)
at least three persons (“specialist communications panel members”)
appointed to the CMA panel under paragraph 1(1)(b) for the
purpose of being available for selection as members of a group
constituted to carry out functions on behalf of the CMA with respect
to a specialist communications reference (a “specialist
5
communications reference group”);
(c)
at least six persons (“specialist utility panel members”) appointed to
the CMA panel under paragraph 1(1)(b) for the purpose of being
available for selection as members of a group constituted to carry out
specialist utility functions on behalf of the CMA (a “specialist utility
10
group”);
(d)
at least one person (a “reporting panel member”) appointed to the
CMA panel under paragraph 1(1)(b) for the purpose of being
available for selection as a member of any group constituted to carry
out functions on behalf of the CMA;
15
(e)
any persons who are appointed to the CMA panel under paragraph
1(1)(b) for the purpose of being available for selection as members of
a group constituted to carry out functions with respect to a reference
under article 15 of the Electricity (Northern Ireland) Order 1992 (SI
1992/231 (NI 1)).
20
      (2)
A person who is appointed to the CMA panel as a member of a kind
mentioned in one of paragraphs (a) to (e) of sub-paragraph (1) may also be
appointed as a member of one or more of the other kinds mentioned in those
paragraphs.
      (3)
For the purposes of this paragraph and paragraph 38—
25
a “newspaper merger reference” is—
(a)
a reference under section 45 of the Enterprise Act 2002 that
specifies a newspaper public interest consideration (within
the meaning of paragraph 20A of Schedule 8 to that Act);
(b)
a reference under section 62 of that Act that specifies a
30
consideration specified in section 58(2A) or (2B) of that Act;
a “specialist communications reference” is a reference under section 193
of the Communications Act 2003;
“specialist utility functions” are functions with respect to—
(a)
an appeal under section 23B, or a reference under section 41E,
35
of the Gas Act 1986;
(b)
an appeal under section 11C, or a reference under section
56C, of the Electricity Act 1989;
(c)
a reference under section 12, 14 or 17K of the Water Industry
Act 1991;
40
(d)
the giving of a direction or the making of modifications under
section 16A or 17P of that Act;
(e)
an appeal under section 173 of the Energy Act 2004;
(f)
a reference under article 3 of the Water Services etc (Scotland)
Act 2005 (Consequential Provisions and Modifications)
45
Order 2005;
(g)
the giving of a direction or the making of modifications under
article 9 of that Order.

Enterprise and Regulatory Reform Bill
Schedule 4 — The Competition and Markets Authority
Part 3 — The CMA panel
101

Constitution of CMA groups
36
Where the chair is, by or under any enactment, required to constitute a
group under this Schedule (a “CMA group”), the chair must constitute the
group in accordance with this Part of this Schedule.
Membership of CMA groups
5
37    (1)
The members of a CMA group are to be selected by the chair.
      (2)
In selecting the members of a CMA group, the chair must comply with any
requirements imposed by or under any enactment.
      (3)
Subject to that, paragraph 38 has effect for the purposes of the membership
of a CMA group.
10
38    (1)
Each CMA group is to consist of at least three members of the CMA panel.
      (2)
Subject to sub-paragraphs (3) to (6), those members are to be such persons as
the chair may select.
      (3)
In the case of a newspaper merger reference group—
(a)
the group must include at least one newspaper panel member;
15
(b)
the members of the group (if any) who are not newspaper panel
members must be reporting panel members.
      (4)
In the case of a specialist communications reference group, the group must
include at least one, but not more than three, of the specialist
communications panel members.
20
      (5)
In the case of a specialist utility group, the group must include at least one
of the specialist utility panel members.
      (6)
A newspaper panel member is not to be selected as a member of a CMA
group that is not a newspaper merger reference group.
      (7)
The chair may at any time appoint a reporting panel member to be an
25
additional member of a CMA group.
      (8)
The chair must appoint one of the members of a CMA group to chair the
group (the “group chair”).
39
The validity of anything done by a CMA group is not affected by—
(a)
a vacancy;
30
(b)
a defective appointment.
Termination of person’s membership of a CMA group
40
A member of the CMA panel may at any time resign from a CMA group by
giving written notice to this effect to the chair.
41    (1)
Sub-paragraph (2) applies if the chair considers that—
35
(a)
a member of a CMA group will be unable, for a substantial period, to
perform his or her duties as a member of the group, or
(b)
because of a particular interest of a member of a CMA group, it is
inappropriate for him or her to remain a member of the group.

Enterprise and Regulatory Reform Bill
Schedule 4 — The Competition and Markets Authority
Part 3 — The CMA panel
102

      (2)
The chair may remove the person in question from membership of the
group.
42
A person ceases to be a member of a CMA group on ceasing to be a member
of the CMA panel.
Replacement of a member of a CMA group
5
43    (1)
Sub-paragraph (2) applies if a person ceases to be a member of a CMA
group, whether by being removed under paragraph 41, or otherwise.
      (2)
The chair may select a replacement member of the group from the CMA
panel.
Continuity on removal or replacement
10
44    (1)
A person’s ceasing to be a member of a CMA group, whether by being
removed under paragraph 41, or otherwise, does not prevent—
(a)
the group from continuing with anything begun before the person
ceased to be a member of it;
(b)
any decision made or direction given by the person while a member
15
of the group from having effect after he or she has ceased to be a
member of the group.
      (2)
Sub-paragraph (1)—
(a)
applies whether or not a replacement member of the group is
selected under paragraph 43;
20
(b)
does not affect any requirements imposed by or under any
enactment with respect to the constitution of a CMA group.
Attendance of other members
45    (1)
At the invitation of the group chair of a CMA group, any reporting panel
member who is not a member of the group may attend its meetings or
25
otherwise take part in its proceedings.
      (2)
But a person attending in response to such an invitation may not—
(a)
vote in any proceedings of the group, or
(b)
have a statement of his or her dissent from a conclusion of the group
included in a report made by the group.
30
      (3)
Nothing in sub-paragraph (1) is to be taken to prevent a CMA group from
consulting any member of the CMA panel with respect to any matter or
question with which the group is concerned.
Powers of chair pending group’s constitution and first meeting
46    (1)
While a CMA group is being constituted, the chair may take such steps as he
35
or she considers appropriate to facilitate the work of the group once it has
been constituted.
      (2)
The steps taken must be steps that it would be within the power of the group
to take, had it already been constituted.