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(a) also make (as nearly as may be) the same modifications of | |
those conditions for the purposes of their incorporation in | |
licences of that description granted after that time; and | |
(b) publish the modifications in such manner as it considers | |
appropriate. | 5 |
(13) In this section “relevant licence holder”, in relation to proposed | |
modifications of standard conditions of retail licences or combined | |
licences, means the holder of a licence of that description— | |
(a) which is to be modified under the proposals by the inclusion | |
of any new standard condition; or | 10 |
(b) which includes any standard conditions to which the | |
proposals relate, other than standard conditions which are | |
not in effect (by virtue of anything done under section 17H(4) | |
above) at the time specified in the notice under subsection (3) | |
above. | 15 |
17K Water supply licences: modification references to Competition | |
Commission | |
(1) The Authority may make to the Competition Commission (in this | |
section and the following provisions of this Chapter referred to as | |
“the Commission”) a reference which is so framed as to require the | 20 |
Commission to investigate and report on the questions— | |
(a) whether any matters which— | |
(i) relate to the carrying on of activities authorised or | |
regulated by a particular licence; and | |
(ii) are specified in the reference, | 25 |
operate, or may be expected to operate, against the public | |
interest; and | |
(b) if so, whether the effects adverse to the public interest which | |
those matters have, or may be expected to have, could be | |
remedied or prevented by modifications of the conditions of | 30 |
the licence. | |
(2) The Authority may make to the Commission a reference which is so | |
framed as to require the Commission to investigate and report on the | |
questions— | |
(a) whether any matters which— | 35 |
(i) relate to the carrying on of activities authorised or | |
regulated by retail licences or combined licences; and | |
(ii) are specified in the reference, | |
operate, or may be expected to operate, against the public | |
interest; and | 40 |
(b) if so, whether the effects adverse to the public interest which | |
those matters have, or may be expected to have, could be | |
remedied or prevented by modifications of the standard | |
conditions of licences of that description. | |
(3) The Authority may, at any time, by notice given to the Commission | 45 |
vary a reference under this section by— | |
(a) adding to the matters specified in the reference; or | |
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(b) excluding from the reference some of the matters so | |
specified, | |
and on receipt of any such notice the Commission shall give effect to | |
the variation. | |
(4) The Authority may specify in a reference under this section, or a | 5 |
variation of such a reference, for the purpose of assisting the | |
Commission in carrying out the investigation on the reference— | |
(a) any effects adverse to the public interest which, in its opinion, | |
the matters specified in the reference or variation have or | |
may be expected to have; and | 10 |
(b) any modifications of the relevant conditions by which, in its | |
opinion, those effects could be remedied or prevented. | |
(5) As soon as practicable after making a reference under this section or | |
a variation of such a reference, the Authority shall— | |
(a) publish particulars of the reference or variation in such | 15 |
manner as it considers appropriate for the purpose of | |
bringing the reference or variation to the attention of persons | |
likely to be affected by it; and | |
(b) serve a copy of the reference or variation on— | |
(i) the licence holder or, as the case may be, the relevant | 20 |
licence holders; | |
(ii) the Council; | |
(iii) the Secretary of State; | |
(iv) the Assembly; and | |
(v) the Chief Inspector of Drinking Water. | 25 |
(6) If, before the end of the period of twenty-eight days beginning with | |
the day on which the Secretary of State receives the copy of the | |
reference or variation, the Secretary of State directs the | |
Commission— | |
(a) not to proceed with the reference; or | 30 |
(b) not to give effect to the variation, | |
the Commission shall comply with the direction. | |
(7) It shall be the duty of the Authority, for the purpose of assisting the | |
Commission in carrying out an investigation on a reference under | |
this section or in carrying out functions under section 17P below, to | 35 |
give to the Commission— | |
(a) any information in the Authority’s possession which relates | |
to matters falling within the scope of the investigation or the | |
carrying out of those functions and which is either— | |
(i) requested by the Commission for that purpose; or | 40 |
(ii) information which, in the Authority’s opinion, it | |
would be appropriate for that purpose to give to the | |
Commission without any such request; and | |
(b) any other assistance which the Commission may require, and | |
which it is within the Authority’s power to give, in relation to | 45 |
any such matters, | |
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and the Commission, for the purpose of carrying out any such | |
investigation or such functions, shall take account of any information | |
given to it for that purpose under this subsection. | |
(8) In this section and the following provisions of this Chapter— | |
“relevant conditions”— | 5 |
(a) in relation to a reference under subsection (1) above, | |
means the conditions of the licence to which the | |
reference relates; and | |
(b) in relation to a reference under subsection (2) above, | |
means the standard conditions of the licences to | 10 |
which the reference relates; and | |
“relevant licence holder” means the holder of a licence to which | |
a reference under subsection (2) above relates. | |
(9) In determining for the purposes of this section whether any | |
particular matter operates, or may be expected to operate, against the | 15 |
public interest, the Commission shall have regard to the matters as | |
respects which duties are imposed on the Secretary of State and the | |
Authority by Part 1 of this Act. | |
17L References under section 17K: time limits | |
(1) Every reference under section 17K above shall specify a period (not | 20 |
longer than six months beginning with the date of the reference) | |
within which a report on the reference is to be made. | |
(2) A report of the Commission on a reference under section 17K above | |
shall not have effect (and no action shall be taken in relation to it | |
under section 17O below) unless the report is made before the end of | 25 |
the period specified in the reference or such further period (if any) as | |
may be allowed by the Authority under subsection (3) below. | |
(3) The Authority may, if it has received representations on the subject | |
from the Commission and is satisfied that there are special reasons | |
why the report cannot be made within the period specified in the | 30 |
reference, extend that period by no more than six months. | |
(4) No more than one extension is possible under subsection (3) above | |
in relation to the same reference. | |
(5) The Authority shall, in the case of an extension made by it under | |
subsection (3) above— | 35 |
(a) publish that extension in such manner as the Authority | |
considers appropriate for the purpose of bringing it to the | |
attention of persons likely to be affected by it; and | |
(b) send a copy of what has been published by it under | |
paragraph (a) above to the holder of the licence or, as the case | 40 |
may be, the relevant licence holders. | |
17M References under section 17K: powers of investigation | |
(1) The following sections of Part 3 of the Enterprise Act 2002 shall | |
apply, with the modifications mentioned in subsections (2) and (3) | |
below, for the purposes of references under section 17K above as | 45 |
they apply for the purposes of references under that Part— | |
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(a) section 109 (attendance of witnesses and production of | |
documents etc.); | |
(b) section 110 (enforcement of powers under section 109: | |
general); | |
(c) section 111 (penalties); | 5 |
(d) section 112 (penalties: main procedural requirements); | |
(e) section 113 (payments and interest by instalments); | |
(f) section 114 (appeals in relation to penalties); | |
(g) section 115 (recovery of penalties); and | |
(h) section 116 (statement of policy). | 10 |
(2) Section 110 shall, in its application by virtue of subsection (1) above, | |
have effect as if— | |
(a) subsection (2) were omitted; and | |
(b) in subsection (9) the words from “or section” to “section | |
65(3))” were omitted. | 15 |
(3) Section 111(5)(b)(ii) shall, in its application by virtue of subsection (1) | |
above, have effect as if— | |
(a) for the words “published (or, in the case of a report under | |
section 50 or 65, given)” there were substituted “made”; | |
(b) for the words “published (or given)”, in both places where | 20 |
they appear, there were substituted “made”; and | |
(c) the words “by this Part” were omitted. | |
(4) Provisions of Part 3 of the Enterprise Act 2002 which have effect for | |
the purposes of sections 109 to 116 of that Act (including, in | |
particular, provisions relating to offences and the making of orders) | 25 |
shall, for the purposes of the application of those sections by virtue | |
of subsection (1) above, have effect in relation to those sections as | |
applied by virtue of that subsection. | |
(5) Accordingly, corresponding provisions of this Act shall not have | |
effect in relation to those sections as applied by virtue of that | 30 |
subsection. | |
17N Water supply licences: reports on modification references | |
(1) In making a report on a reference under section 17K above, the | |
Commission— | |
(a) shall include in the report definite conclusions on the | 35 |
questions comprised in the reference together with such an | |
account of its reasons for those conclusions as in its opinion | |
is expedient for facilitating a proper understanding of those | |
questions and of its conclusions; | |
(b) where it concludes that any of the matters specified in the | 40 |
reference operate, or may be expected to operate, against the | |
public interest, shall specify in the report the effects adverse | |
to the public interest which those matters have or may be | |
expected to have; and | |
(c) where it concludes that any adverse effects so specified could | 45 |
be remedied or prevented by modifications of the relevant | |
conditions, shall specify in the report modifications by which | |
those effects could be remedied or prevented. | |
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(2) For the purposes of section 17O below, a conclusion contained in a | |
report of the Commission is to be disregarded if the conclusion is not | |
that of at least two-thirds of the members of the group constituted in | |
connection with the reference concerned in pursuance of paragraph | |
15 of Schedule 7 to the Competition Act 1998. | 5 |
(3) If a member of a group so constituted disagrees with any conclusions | |
contained in a report made on a reference under section 17K above | |
as the conclusions of the Commission, the report shall, if the member | |
so wishes, include a statement of his disagreement and of his reasons | |
for disagreeing. | 10 |
(4) For the purposes of the law relating to defamation, absolute privilege | |
attaches to any report made by the Commission on a reference under | |
section 17K above. | |
(5) In making any report on a reference under section 17K above the | |
Commission must have regard to the following considerations | 15 |
before disclosing any information. | |
(6) The first consideration is the need to exclude from disclosure (so far | |
as practicable) any information whose disclosure the Commission | |
thinks is contrary to the public interest. | |
(7) The second consideration is the need to exclude from disclosure (so | 20 |
far as practicable)— | |
(a) commercial information whose disclosure the Commission | |
thinks might significantly harm the legitimate business | |
interests of the undertaking to which it relates; or | |
(b) information relating to the private affairs of an individual | 25 |
whose disclosure the Commission thinks might significantly | |
harm the individual’s interests. | |
(8) The third consideration is the extent to which the disclosure of the | |
information mentioned in subsection (7)(a) or (b) above is necessary | |
for the purposes of the report. | 30 |
(9) A report of the Commission on a reference under section 17K above | |
shall be made to the Authority. | |
(10) Subject to subsection (13) below, the Authority shall— | |
(a) on receiving a report on a reference under section 17K(1) | |
above, serve a copy of it on— | 35 |
(i) the licence holder; | |
(ii) the Council; | |
(iii) the Secretary of State; and | |
(iv) the Assembly; and | |
(b) not earlier than the relevant time, publish another copy of the | 40 |
report in such manner as it considers appropriate for | |
bringing the report to the attention of persons likely to be | |
affected by it. | |
(11) Subject to subsection (13) below, the Authority shall— | |
(a) on receiving a report on a reference under section 17K(2) | 45 |
above, serve a copy of it on— | |
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(i) the Secretary of State; and | |
(ii) the Assembly; and | |
(b) not earlier than the relevant time— | |
(i) serve another copy on each relevant licence holder; | |
and | 5 |
(ii) not less than twenty-four hours after complying with | |
sub-paragraph (i) above, publish another copy of the | |
report in such manner as it considers appropriate for | |
bringing the report to the attention of persons likely | |
to be affected by it. | 10 |
(12) For the purposes of subsections (10) and (11) above, the “relevant | |
time” means— | |
(a) fourteen days after the copy of the report in question is | |
received by the Secretary of State and the Assembly, or | |
(b) if copies are received by them on different days, fourteen | 15 |
days after the later day. | |
(13) Subsection (14) below applies if it appears to the Secretary of State | |
that the publication of any matter in a report on a reference under | |
section 17K(1) or (2) above would be against— | |
(a) the public interest; or | 20 |
(b) the commercial interests of any person. | |
(14) The Secretary of State may, not later than the relevant time for the | |
purposes of subsection (10) or (11) above, direct the Authority to | |
exclude that matter from the copy of the report, or (as the case may | |
be) each copy of the report, to be served and published as mentioned | 25 |
in paragraph (b) of that subsection; and the Authority shall comply | |
with any such direction. | |
17O Water supply licences: modification following report | |
(1) Where a report of the Commission on a reference under section 17K | |
above— | 30 |
(a) includes conclusions to the effect that any of the matters | |
specified in the reference operate, or may be expected to | |
operate, against the public interest; | |
(b) specifies effects adverse to the public interest which those | |
matters have or may be expected to have; | 35 |
(c) includes conclusions to the effect that those effects could be | |
remedied or prevented by modifications of the relevant | |
conditions; and | |
(d) specifies modifications by which those effects could be | |
remedied or prevented, | 40 |
the Authority shall, subject to the following provisions of this | |
section, make such modifications of the relevant conditions as | |
appear to it requisite for the purpose of remedying or preventing the | |
adverse effects specified in the report. | |
(2) Where at any time it modifies under subsection (1) above the | 45 |
standard conditions of retail licences or combined licences in | |
consequence of a reference under section 17K(2) above, the | |
Authority may make such incidental and consequential | |
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modifications as it considers necessary or expedient of any | |
conditions of licences of that description. | |
(3) Before making modifications under this section, the Authority shall | |
have regard to the modifications specified in the report. | |
(4) Before making modifications under this section, the Authority shall | 5 |
give notice— | |
(a) stating that it proposes to make the modifications and setting | |
out their effect; | |
(b) stating the reasons why it proposes to make the | |
modifications; and | 10 |
(c) specifying the period (not being less than twenty-eight days | |
from the date of publication of the notice) within which | |
representations or objections with respect to the proposed | |
modifications may be made, | |
and shall consider any representations or objections which are duly | 15 |
made and not withdrawn. | |
(5) A notice under subsection (4) above shall be given— | |
(a) by publishing the notice in such manner as the Authority | |
considers appropriate for the purpose of bringing the matters | |
to which the notice relates to the attention of persons likely to | 20 |
be affected by the making of the modifications; | |
(b) by serving a copy of the notice on the holder of the licence in | |
question or, as the case may be, the relevant licence holders; | |
and | |
(c) by serving a copy of the notice on— | 25 |
(i) the Council; | |
(ii) the Secretary of State; | |
(iii) the Assembly; and | |
(iv) the Chief Inspector of Drinking Water. | |
(6) After considering any representations or objections made in | 30 |
response to proposals set out in a notice under subsection (4) above, | |
the Authority shall give notice to the Commission— | |
(a) setting out the modifications it proposes to make to remedy | |
or prevent the adverse effects specified in the report; and | |
(b) stating the reasons for making the modifications. | 35 |
(7) The Authority shall include with the notice under subsection (6) | |
above a copy of any representations or objections received in relation | |
to the notice under subsection (4) above. | |
(8) If the period of four weeks from the date on which the notice under | |
subsection (6) above is given elapses without a direction under | 40 |
section 17P(1)(a) below having been given to it, the Authority shall— | |
(a) make the modifications set out in the notice; or | |
(b) if a direction under section 17P(1)(b) below has been given, | |
make the modifications which are not specified in the | |
direction. | 45 |
(9) The modification under subsection (1) above of part of a standard | |
condition of a particular licence in consequence of a reference under | |
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