Session 2012 - 13
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Enterprise and Regulatory Reform Bill


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

104

 

      (4)  

The CMA must publish the plan, in whatever way it considers appropriate,

before the start of the financial year in question.

13    (1)  

Before finalising an annual plan, the CMA must draw up proposals for it.

      (2)  

The CMA must arrange for the proposals to be laid before Parliament.

      (3)  

The CMA must—

5

(a)   

publish the proposals in whatever way it considers appropriate, and

(b)   

make arrangements to consult with the public about them.

      (4)  

Arrangements made under sub-paragraph (3)(b) may provide for

consultation with the public to be effected in whatever way the CMA

considers appropriate.

10

Performance report

14    (1)  

As soon as practicable after the end of each financial year, the CMA must

prepare and send to the Secretary of State an annual report on its activities

and performance during the year.

      (2)  

The report must include—

15

(a)   

a survey of developments, during the year, in matters relating to the

CMA’s functions;

(b)   

an assessment of the extent to which the CMA’s objectives for the

year, as set out in the plan published under paragraph 12, have been

met;

20

(c)   

a summary of the significant decisions, investigations or other

activities made or carried out by the CMA during the year;

(d)   

a summary of the allocation of the CMA’s financial resources to its

various activities during the year;

(e)   

an assessment of the CMA’s performance and practices, during the

25

year, in relation to its enforcement functions.

      (3)  

The CMA must—

(a)   

arrange for the report to be laid before Parliament;

(b)   

publish the report in whatever way it considers appropriate.

15         

The CMA may—

30

(a)   

prepare other reports about matters relating to any of its functions;

(b)   

publish a report prepared under this paragraph.

Concurrency report

16    (1)  

As soon as practicable after the end of each financial year, the CMA must

prepare a report containing an assessment of how the concurrency

35

arrangements have operated during the year.

      (2)  

The concurrency arrangements are the arrangements for co-operation

between the CMA and the sectoral regulators in respect of functions which

are exercisable concurrently by the CMA and one or more of the regulators

under Part 1 of the Competition Act 1998 (the “1998 Act”) and Part 4 of the

40

Enterprise Act 2002 (the “2002 Act”).

      (3)  

The report must, in particular, include information about—

 
 

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

105

 

(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.

15

      (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—

20

(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

106

 

      (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

107

 

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

20

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

40

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

108

 

      (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

109

 

(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

110

 

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.

 
 

 
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Revised 19 March 2013