Joint Committee on Statutory Instruments Thirteenth Report


Memorandum by the Department of Trade and Industry


  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 (procedural) acts.

  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 evidence;

(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

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