Joint Committee on Statutory Instruments Thirteenth Report




  1. The Committee has considered the instruments set out in the Annex to this Report and has determined that the special attention of both Houses does not require to be drawn to any of them.

  2. A memorandum by the Ministry of Agriculture, Fisheries and Food in connection with the Meat (Enhanced Enforcement Powers) (England) Regulations 2000 (S.I. 2000/225) is printed in Appendix 1.


  3. The Committee draws the special attention of both Houses to these Rules on the grounds that in three respects they make an unexpected use of powers, that in another respect they require elucidation and that in another they are defectively drafted.

  4. These Rules prescribe the procedure to be followed before a tribunal constituted by the President of the Competition Commission Appeal Tribunals to hear an appeal made under section 46 or 47 of the Competition Act 1998. Section 48(2) of this Act, together with paragraph 5(2) of Schedule 8, provides that the President may, in specified circumstances, delegate to the Registrar the power to abridge or extend the time allowed for doing any procedural act. The Committee asked the Department of Trade and Industry why, in purported exercise of this power, rule 2(4) does not specify any such circumstances. The Department reply in the memorandum printed in Appendix 2 that the rule relies on section 48(4) of the Act, which provides that Schedule 8 does not restrict the Secretary of State's powers to make rules under section 48(2). Notwithstanding the existence of this general saving, the Committee considers that Parliament must have had a purpose in including specific rule­making powers. The general saving is sufficiently explained as a statement that the (extensive) specific powers do not cover the whole ground for procedural rules. Parliament must be taken, where it passes specific powers, to have approved those powers in their specific terms and accordingly those terms indicate Parliament's expectation in relation to the specific field covered. The fact that a delegation is involved adds weight to the expectation that the circumstances of delegation will be set out. The Committee therefore reports that rule 2(4) constitutes an unexpected exercise of a power.

  5. Rule 2(5) authorises any function of the Registrar to be performed by any other member of his staff authorised to do it by the President. The Committee asked the Department whether it was intended to authorise a non­legally qualified member of staff to exercise the discretionary powers of the Registrar. The Department say that the Rules do not preclude such exercise of discretionary powers, but that the President does not intend to authorise any member of staff who is not legally qualified to exercise the discretionary powers of the Registrar. The Committee has already reported that Parliament is not to be taken, in the absence of specific words, to intend such rule­making powers to be exercised to produce the result that judicial functions are capable of being exercised by non­legal staff[2]. The Committee is of the same view in the case where, again, only general empowering words are used. The Committee therefore reports that rule 2(5) constitutes an unexpected use of a power.

  6. In the Part of the Rules entitled "Preparation for deciding the application", rule 17 confers on the tribunal powers to give the listed directions "at the pre­hearing review or otherwise". It appeared to the Committee that some of the listed directions would only be applicable at the hearing, viz:

    (d)  require persons to give evidence;

    (g)  as to the examination or cross­examination of witnesses;

    (j)    for the decision appealed against to be referred back;

    (m)  for the award of costs or expenses, including for the attendance before the tribunal.

  7. The Committee therefore asked whether these directions were intended to be applicable only at the hearing and should therefore have been contained in Part VI ("The Hearing"); or, if that was not the intention, how they would arise for exercise at a pre­hearing review. The Department explain that it is intended that the tribunal may give directions, either or its own motion or at the request of the parties, otherwise than at the pre­hearing review and the hearing: in other words, that the procedure before a tribunal is to be one of continuous case management and that not all directions will be given either at the pre­hearing review or at the hearing. The Committee understand the Department's explanation as to paragraphs (d) and (g) to mean, not that witnesses will be required to give evidence at the pre-hearing review, but that decisions as to which witnesses should be called at the hearing would be taken at the pre-hearing review (or at least before the substantive hearing). The Committee is content with the explanation on this basis and reports rule 17 on the ground that it requires the elucidation provided by the Department.

  8. Rule 17(2) authorises the tribunal to give directions as to the abridgement (as well as to the extension) of time limits (for taking procedural steps). The Committee asked the Department firstly to explain, given that Schedule 8 paragraph 9(1)(e) expressly provides for extension, what power they relied on for abridging a time limit; and secondly the sort of circumstances in which a time limit might be abridged. The Department reply, on the first question, that the power relied on is again section 48(4). The Committee's view is that Parliament, having approved a specific power to extend time limits fixed to regulate the appeal process, is to be taken as not contemplating also a different (and unusual) power to abridge the time limits (with the effect of cutting down the right of appeal it has authorised). As regards the second question, the Department say that it is difficult at this stage to indicate when the power to abridge time limits would be used, but that the Commission expect that it may be used when all or the majority of parties to an appeal had indicated that the proceedings could and should be expedited. The Committee find nothing objectionable in abridgement by consent of all the parties, but do (for the reason given above) find objectionable a power (based only on a general saving) to make a binding direction to that effect to a party who does not consent to an abridgement of the time for appealing. The Committee reports rule 17(2) as an unexpected and unusual exercise of a power.


  9. The Committee draws the special attention of both Houses to this Order on the grounds that it is defectively drafted and that it requires elucidation in two places.

  10. Rule 5(1) provides that the date of an application shall be (a) the date on which Form N is received; and (b) the date on which any fee has been paid. By rule 6(7) the date of payment is to be taken to be the date of the transfer of money between the banks concerned. The Committee asked therefore what the date of notification would be if these two things occurred on different dates. The Department of Trade and Industry reply in the memorandum printed in Appendix 3 that in this case the date of application will be the latter date. The Committee observes that the rule fails to make this clear and therefore reports rule 5(1) on the grounds that it is defectively drafted.

  11. Rule 13(1) provides that "An officer shall grant a request of the occupier of premises entered by the officer to allow a reasonable time for the occupier's legal adviser to arrive at the premises before the investigation continues". The Committee asked whether the underlined words were intended to preclude any review by a court of the legitimacy of the officer's opinion. The Department reply that this is not the intention of the rule. The Committee reports rule 13(1) for the elucidation provided by the Department.

  12. Rules 14(6)(b) and 18(2)(b) authorise the Director to withhold from inspection any document which is, in the opinion of the Director, "confidential" otherwise than within the definition in rule 30 (which repeats section 56(3) of the Competition Act 1998). The Committee asked the Department to explain what other grounds of confidentiality are contemplated than those repeating section 56(3) of the Act. The Department say that other grounds for confidentiality outside rule 30 may include documents containing information making it possible to identify the suppliers of the information who wish to remain anonymous to other parties; and information that is communicated to the Director on condition that its confidentiality is observed. The Committee reports rules 14(6)(b) and 18(2)(b) as requiring the elucidation provided by the Department.

1   The Orders of Reference of the Committee are set out in the First Report, Session 1998-99 (HL Paper 4; HC 50-i). Back
2  In its 10th Report of this Session. Back

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