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(13) An enforcement authority shall not impose a penalty under this section | |
where it is satisfied that the most appropriate way of proceeding is | |
under the Competition Act 1998. | |
22B Statement of policy with respect to penalties | |
(1) Each enforcement authority shall prepare and publish a statement of | 5 |
policy with respect to the imposition of penalties and the determination | |
of their amount. | |
(2) In deciding whether to impose a penalty, and in determining the | |
amount of any penalty, in respect of a contravention or failure an | |
enforcement authority shall have regard to his or its statement of policy | 10 |
most recently published at the time when the contravention or failure | |
occurred. | |
(3) An enforcement authority may revise his or its statement of policy and | |
where he or it does so shall publish the revised statement. | |
(4) Publication under this section shall be in such manner as the | 15 |
enforcement authority considers appropriate for the purpose of | |
bringing the matters contained in the statement of policy to the | |
attention of persons likely to be affected by them. | |
(5) An enforcement authority shall undertake such consultation as he or it | |
considers appropriate when preparing or revising his or its statement | 20 |
of policy. | |
22C Time limits on the imposition of financial penalties | |
(1) Where no final or provisional order has been made in relation to a | |
contravention or failure, an enforcement authority may not impose a | |
penalty in respect of the contravention or failure later than the end of | 25 |
the period of twelve months from the time of the contravention or | |
failure, unless before the end of that period— | |
(a) the notice under section 22A(4) above relating to the penalty is | |
served on the company under section 22A(8) above; or | |
(b) a notice relating to the contravention or failure is served on the | 30 |
company under section 203(2) below. | |
(2) Where a final or provisional order has been made in relation to a | |
contravention or failure, an enforcement authority may not impose a | |
penalty in respect of the contravention or failure unless the notice | |
relating to the penalty under section 22A(4) above was served on the | 35 |
company under section 22A(8) above— | |
(a) within three months from the confirmation of the provisional | |
order or the making of the final order; or | |
(b) where the provisional order is not confirmed, within six months | |
from the making of the provisional order. | 40 |
22D Interest and payment of instalments | |
(1) If the whole or any part of a penalty is not paid by the date by which it | |
is required to be paid, the unpaid balance from time to time shall carry | |
interest at the rate for the time being specified in section 17 of the | |
Judgments Act 1838. | 45 |
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(2) If an application is made under subsection (7) of section 22A above in | |
relation to a penalty, the penalty is not required to be paid until the | |
application has been determined. | |
(3) If the enforcement authority grants an application under that | |
subsection in relation to a penalty but any portion of the penalty is not | 5 |
paid by the date specified in relation to it by the enforcement authority | |
under that subsection, the enforcement authority may where he or it | |
considers it appropriate require so much of the penalty as has not | |
already been paid to be paid immediately. | |
22E Appeals | 10 |
(1) If the company on which a penalty is imposed is aggrieved by— | |
(a) the imposition of the penalty; | |
(b) the amount of the penalty; or | |
(c) the date by which the penalty is required to be paid, or the | |
different dates by which different portions of the penalty are | 15 |
required to be paid, | |
the company may make an application to the court under this section. | |
(2) An application under subsection (1) above must be made— | |
(a) within forty-two days from the date of service on the company | |
of a notice under section 22A(6) above; or | 20 |
(b) where the application relates to a decision of an enforcement | |
authority on an application by the company under section | |
22A(7) above, within forty-two days from the date the company | |
is notified of the decision. | |
(3) On any such application, where the court considers it appropriate to do | 25 |
so in all the circumstances of the case and is satisfied of one or more of | |
the grounds falling within subsection (4) below, the court— | |
(a) may quash the penalty; | |
(b) may substitute a penalty of such lesser amount as the court | |
considers appropriate in all the circumstances of the case; or | 30 |
(c) in the case of an application under subsection (1)(c) above, may | |
substitute for the date or dates imposed by the enforcement | |
authority an alternative date or dates. | |
(4) The grounds falling within this subsection are— | |
(a) that the imposition of the penalty was not within the power of | 35 |
the enforcement authority under section 22A above; | |
(b) that any of the requirements of subsections (4) to (6) or (8) of | |
section 22A above have not been complied with in relation to | |
the imposition of the penalty and the interests of the company | |
have been substantially prejudiced by the non-compliance; or | 40 |
(c) that it was unreasonable of the enforcement authority to require | |
the penalty imposed, or any portion of it, to be paid by the date | |
or dates by which it was required to be paid. | |
(5) If an application is made under this section in relation to a penalty, the | |
penalty is not required to be paid until the application has been | 45 |
determined. | |
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(6) Where the court substitutes a penalty of a lesser amount it may require | |
the payment of interest on the substituted penalty at such rate, and | |
from such date, as it considers just and equitable. | |
(7) Where the court specifies as a date by which the penalty, or a portion of | |
the penalty, is to be paid a date before the determination of the | 5 |
application under this section it may require the payment of interest on | |
the penalty, or portion, from that date at such rate as it considers just | |
and equitable. | |
(8) Except as provided by this section, the validity of a penalty shall not be | |
questioned by any legal proceedings whatever. | 10 |
(9) In this section “the court” means the High Court. | |
22F Recovery of penalties | |
Where a penalty imposed under section 22A(1) or (2) above, or any | |
portion of it, has not been paid by the date on which it is required to be | |
paid and— | 15 |
(a) no application relating to the penalty has been made under | |
section 22E above during the period within which such an | |
application can be made; or | |
(b) an application has been made under that section and | |
determined, | 20 |
the enforcement authority may recover from the company, as a civil | |
debt due to him or it, any of the penalty and any interest which has not | |
been paid.” | |
(2) In section 195 of the WIA (keeping of a register), in subsection (2), the “and” at | |
the end of paragraph (d) is omitted, and after paragraph (e) there is inserted— | 25 |
“(f) every penalty imposed under section 22A(1) or (2) above and | |
every notice under section 22A(6) above;”. | |
49 Enforcement of certain provisions | |
(1) The WIA is amended as follows. | |
(2) In section 18 (orders for securing compliance with certain provisions)— | 30 |
(a) in subsection (1)(b), for “has contravened any such condition or | |
requirement and is likely to do so again” there is substituted “is likely | |
to contravene any such condition or requirement”, | |
(b) for subsection (4)(a)(ii) there is substituted— | |
“(ii) is likely to contravene any such condition or | 35 |
requirement;”. | |
(3) In section 20 (procedure for orders made under section 18), in subsections (1)(c) | |
and (4)(b), for “twenty-eight” there is substituted “twenty-one”. | |
(4) Subsection (3) does not have effect in relation to— | |
(a) a provisional order which has been made before the commencement of | 40 |
that subsection, or | |
(b) a final order in respect of which notice has been given under section | |
20(1) of the WIA before the commencement of that subsection. | |
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Remuneration and standards of performance | |
50 Links between directors’ pay and standards of performance | |
After section 35 of the WIA there is inserted— | |
“Disclosure of arrangements for remuneration | |
35A Remuneration and standards of performance | 5 |
(1) This section applies to any company holding an appointment under | |
Chapter 1 of this Part. | |
(2) As soon as reasonably practicable after the end of each financial year of | |
the company it must make a statement to the Authority— | |
(a) disclosing whether or not remuneration has been paid or | 10 |
become due during that financial year to the directors of the | |
company as a result of arrangements falling within subsection | |
(3) below; and | |
(b) where such remuneration has been paid or become due, | |
describing the arrangements and the remuneration. | 15 |
(3) Arrangements fall within this subsection if they are arrangements for | |
linking the remuneration of the directors of the company to standards | |
of performance in connection with the carrying out by the company of | |
the functions of a relevant undertaker. | |
(4) A description under subsection (2)(b) above must include in | 20 |
particular— | |
(a) a statement of when the arrangements were made; | |
(b) a description of the standards of performance in question; | |
(c) an explanation of the means by which the standards of | |
performance are assessed; and | 25 |
(d) an explanation of how the remuneration was calculated. | |
(5) The statement required by subsection (2) above must also state— | |
(a) whether or not there are in force in respect of the financial year | |
during which the statement is made arrangements falling | |
within subsection (3) above; or | 30 |
(b) if not, whether the company intends that such arrangements | |
will be in force at some time during that financial year, | |
and if there are, or it is intended that there will be, such arrangements | |
in force the statement must describe those arrangements. | |
(6) A description under subsection (5) above must— | 35 |
(a) include in particular the matters listed in subsection (4)(a), (b) | |
and (c) above; and | |
(b) where the arrangements described are different from any | |
arrangements described under subsection (2)(b) above, state the | |
likely effect of those differences on the remuneration of each | 40 |
director of the company. | |
(7) The statement required by subsection (2) above must be made to the | |
Authority in such manner as may be required by the Authority. | |
(8) The statement required by subsection (2) above— | |
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(a) must be published by the company making the statement in | |
such manner as it reasonably considers will secure adequate | |
publicity for it; and | |
(b) may be published by the Authority in such manner as it may | |
consider appropriate. | 5 |
(9) The duty of a company under this section applies in respect of any | |
person who has at any time been a director of the company. | |
(10) In this section— | |
“remuneration” in relation to a director of a company— | |
(a) means any form of payment, consideration or other | 10 |
benefit (including pension benefit), paid or due to or in | |
respect of the director; and | |
(b) includes remuneration in respect of any of his services | |
while a director of the company; | |
“standards of performance”, in relation to any company, include | 15 |
any standards which are— | |
(a) set by or under any conditions of the company’s | |
appointment under Chapter 1 of this Part; | |
(b) contained in or prescribed by regulations made under | |
section 38(1)(b) or (2) or section 95(1)(b) or (2) below; or | 20 |
(c) set or agreed to by the company. | |
(11) Any requirement imposed by this section shall be treated as a statutory | |
requirement enforceable under section 18 above by the Authority.” | |
Miscellaneous | |
51 Reasons for decisions | 25 |
After section 195 of the WIA there is inserted— | |
“195A Reasons for decisions | |
(1) This section applies to the following decisions of the Authority, the | |
Secretary of State or the Assembly, namely— | |
(a) the modification of the conditions of an appointment under | 30 |
Chapter 1 of Part 2 of this Act or the variation of the area to | |
which an appointment relates; | |
(b) the modification of the conditions of a licence under Chapter 1A | |
of that Part; | |
(c) the termination of such an appointment or the revocation of | 35 |
such a licence; | |
(d) the giving of any directions or consent in pursuance of a | |
condition included in such an appointment by virtue of section | |
12(1) above or in such a licence by virtue of section 17G(3)(a) or | |
(b) above; | 40 |
(e) the determination of a question referred in pursuance of a | |
condition included in such an appointment by virtue of section | |
12(2) above or in such a licence by virtue of section 17G(3)(c) | |
above; | |
(f) the making of a determination under section 17E or 66D(1) | 45 |
above; and | |
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(g) the making of a final enforcement order, the making or | |
confirmation of a provisional enforcement order or the | |
revocation of a final order or of a provisional order which has | |
been confirmed. | |
(2) As soon as reasonably practicable after making such a decision the | 5 |
Authority, the Secretary of State or the Assembly shall publish a notice | |
stating the reasons for the decision in such manner as it considers | |
appropriate for the purpose of bringing the matters to which the notice | |
relates to the attention of persons likely to be interested. | |
(3) A person publishing a notice under subsection (2) above shall serve a | 10 |
copy on the company holding the appointment or licence to which the | |
decision relates. | |
(4) A person preparing a notice under subsection (2) above shall have | |
regard to the need for excluding, so far as that is practicable, any matter | |
which relates to the affairs of a particular individual or body of persons | 15 |
(corporate or unincorporate), where he considers that publication of | |
that matter would or might seriously and prejudicially affect the | |
interests of that individual or body. | |
(5) This section does not apply in relation to a decision of the Authority | |
resulting in any provision which the Authority was directed under | 20 |
section 195(3) above not to enter in the register required to be kept | |
under that section.” | |
52 Co-operation between water regulators | |
(1) This section imposes duties on each of the following— | |
(a) the Secretary of State, | 25 |
(b) the Assembly, | |
(c) the Environment Agency, and | |
(d) the Water Services Regulation Authority. | |
(2) It is the duty of each of those mentioned in subsection (1) to make | |
arrangements with each of the others with a view to promoting, in the case of | 30 |
each pair of them— | |
(a) co-operation and the exchange of information between them, and | |
(b) consistency of treatment of matters which affect both of them. | |
(3) That duty relates only— | |
(a) in the case of the Water Services Regulation Authority, to its functions | 35 |
under the WIA relating to the regulation of water and sewerage | |
undertakers and licensed water suppliers, | |
(b) in the case of the Secretary of State and the Assembly, to their functions | |
of the description referred to in paragraph (a), and to their functions | |
under the WIA relating to the quality of water supplied by water | 40 |
undertakers and licensed water suppliers, | |
(c) in the case of the Environment Agency, to its functions concerning | |
water resources and water pollution so far as they relate to water and | |
sewerage undertakers and licensed water suppliers. | |
(4) As soon as practicable after agreement is reached on any arrangements | 45 |
required by this section, the parties must prepare a memorandum setting them | |
out. | |
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(5) The parties to any such arrangements must keep them under review. | |
(6) As soon as practicable after agreement is reached on any changes to | |
arrangements under this section, the parties must revise their memorandum. | |
(7) Parties to arrangements required by this section must send a copy of their | |
memorandum (and any revised memorandum) to each person mentioned in | 5 |
subsection (1) who is not a party to the arrangements set out in it. | |
(8) The Secretary of State must lay before each House of Parliament a copy of | |
every memorandum (and revised memorandum) under this section. | |
The Competition Commission | |
53 Specialist members of the Competition Commission | 10 |
(1) In section 104(1) of the Utilities Act 2000 (c. 27) (appointment of members of the | |
Competition Commission)— | |
(a) the “or” at the end of paragraph (a) is omitted, and | |
(b) after paragraph (b) there is inserted “; or | |
(c) section 12, 14, 16A, 17K or 17P of the Water Industry Act | 15 |
1991.”. | |
(2) The persons who are, immediately before the commencement of subsection (1), | |
members of the Competition Commission by virtue of appointments made | |
under section 14(8) of the WIA shall continue as members of the Commission | |
and their appointments shall be treated as having been made under section 104 | 20 |
of the Utilities Act 2000. | |
(3) Section 14(8) and (8A) of the WIA (which are superseded by this section) shall | |
cease to have effect. | |
(4) The provision made by this section does not affect any group which has been | |
selected, before the commencement of subsection (1), to perform functions of | 25 |
the Commission in relation to any reference under or by virtue of section 14 of | |
the WIA. | |
54 Determination references under section 12 of the WIA | |
(1) Section 12 of the WIA (determinations under conditions of appointment) is | |
amended as follows. | 30 |
(2) After subsection (3) there is inserted— | |
“(3A) For the purposes of subsection (3) above, where— | |
(a) the question or matter referred to the Commission concerns the | |
review of a price control imposed on the company holding the | |
appointment; and | 35 |
(b) the Commission is to decide to what extent it is reasonable to | |
take into account in its determination costs incurred or borne by | |
the company in connection with the reference, | |
the Commission shall also have regard to the extent to which, in its | |
view, its determination is likely to support the company’s (rather than | 40 |
the Authority’s) claims in relation to the question or matter referred to | |
it. | |
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