Memorandum by the Department
of Trade and Industry
2000 (S.I. 2000/261)
1. The Committee has requested
a memorandum on the following points.
Having regard to the
specific power to make rules as to the exercise of functions by
the Registrar in Schedule 8 paragraph 5(2) of the Act, explain
why rule 2(4) does not specify the circumstances in which he may
exercise the function of abridging or extending the time for doing
2. The power relied upon to
omit any specification of the circumstances in which these functions
may be delegated to the Registrar in accordance with this rule
is section 48(4) of the Competition Act 1998. This subsection
provides that Part II of Schedule 8 is not to be taken as restricting
the Secretary of State's powers to make rules under section 48(2).
Rule 2(5) authorises
any functions of the Registrar to be performed by any other member
of his staff authorised to do it by the President. Is this intended
to authorise a non-legally-qualified member of staff to exercise
discretionary powers of the Registrar?
3. The Rules do not preclude
the appointment of non-legally-qualified staff. However, the functions
of the Registrar can only be carried out by another member of
staff if he or she has been so authorised by the President. We
have been advised by the Competition Commission that the President
does not intend to authorise any member of staff who is not legally
qualified to exercise discretionary powers of the Registrar.
Rule 12(6), in applying
to the defence certain rules governing appeal applications to
the tribunal, converts [in the manuscript addition] reference
to the application to references to"the defence". Is
not the respondent meant?
4. We have checked the signature
copy of the Rules and have discovered that the following words
were omitted in error from the manuscript amendment to rule 12(6)'"the
respondent", reference to "the application" were
references to"'. Accordingly the text which was signed by
the Minister was defective in omitting these words, although the
published statutory instrument is not.
5. This discrepancy was not
intentional. The first proof of the Rules contained a large number
of errors and there was not sufficient time to reproof and to
observe the 21 day rule so that the Rules could come into force
on 1st March 2000. The Department produced two copies of the final
version of the rules by marking up the first proof with manuscript
amendments; one copy was sent to the Minister for signature, the
other to the Stationery Office for printing. These should have
been identical and we were not aware of the discrepancy prior
to receiving your query. However, as stated above, the marked
up proof which was sent for signature had the words '"the
respondent", reference to "the application" were
references to"' missing from the manuscript amendment to
rule 12(6). As the printer's copy had the correct wording the
statutory instrument in its published form does not have this
defect. The Department apologises for this error.
Rule 17 (in the Part
entitled "Preparation for deciding the application")
confers on the tribunal powers to give the listed directions "at
the pre-hearing review or otherwise" (i.e. the hearing).
Are the following powers to give directions intended to be applicable
only at the hearing, viz.
(d) require persons to give
(g) as to the examination
or cross-examination 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?
If that is not the intention
explain how they would arise for exercise at a pre-hearing review.
If that is the intention, explain why those powers are not contained
in Part VI "The Hearing".
6. It is intended (see paragraphs
(1) and (4) of rule 17), that the tribunal may give directions,
either of its own motion or on the request of the parties, otherwise
than at the pre-hearing review and the hearing. The rules as a
whole are intended to operate to enable the issues in dispute
in an appeal and the evidence necessary to determine that appeal
to be identified as fully as possible prior to the hearing. Further,
the procedure before a tribunal is one of continuous case management
that cannot be divided into "the pre-hearing review"
and "the hearing" in the way this question suggests.
7. In answer to the specific
queries, we anticipate that, prior to the hearing either at the
pre-hearing review or otherwise, a tribunal may give directions
as to the persons who will be required to attend to give evidence
and as to their examination and cross-examination (for example
any limits upon the length of such examinations). It is therefore
not intended that directions (d) and (g) should be given only
at the hearing. There is further provision on the summoning and
citing of witnesses and evidence in rules 20, 21 and 24(5). As
regards (j), paragraph 3(2)(a) of Schedule 8 provides that the
tribunal may remit the matter which is the subject of an appeal
back to the Director. In practice, we consider that this is only
likely to occur after a hearing but the inclusion of (j) in rule
17 would enable the necessary directions to be given should the
referral be made prior to a hearing taking place. As regards (m),
rule 26(2) provides that the tribunal may at any stage of the
proceedings make any order it thinks fit in relation to the payment
of costs by one party to another. Accordingly it is not intended
that directions as to costs should only be applicable at the hearing.
Rule 7(2)(i) authorises
the tribunal to give directions as to the abridgement (as well
as the extension) of time limits (for taking procedural steps).
what power is relied on for abridging
a time limit (given the express power for extension in Schedule
8 paragraph 9(1)(e)); and
the sort of circumstances in which
it is expected that this power would be exercisable.
8. Again, the power relied upon
is section 48(4) of the Competition Act 1998 which provides that
Part II of Schedule 8 is not to be taken as restricting the Secretary
of State's powers to make rules under section 48(2). We are advised
by the Competition Commission that it is difficult at this stage
to indicate when the power to abridge time limits would be used.
However, the Commission anticipate that it may be used where all
or the majority of the parties to an appeal had indicated that
the proceedings could and should be expedited.
6th March 2000