Joint Committee On Human Rights Twenty-First Report


1. Letter to the Chairman from the Rt Hon Patricia Hewitt MP,

Secretary of State for Trade and Industry, re the Enterprise Bill

I very much welcome the Joint Committee's further progress report on the Enterprise Bill, contained in its Eighteenth Report, published on 21 June. I was pleased to see that for the most part, the Committee considers that the Bill contains adequate safeguards against any violations of the Convention rights, but I thought you would welcome an early indication of our response to the points that the Committee drew to the attention of both Houses.

In relation to the Committee's comments about the consumer provisions in the Bill, I agree that a fair balance needs to be struck between the rights of traders and the general interests of consumers. However, I believe the procedure for obtaining enforcement orders, including interim enforcement orders, will ensure that this is achieved without the additional measures.

Although an enforcer may make an application for an enforcement order or an interim enforcement order against a person who it thinks has engaged in conduct which constitutes a domestic or Community infringement, or who is likely to engage in conduct which would constitute a Community infringement, it is implicit, because of the rules of administrative law, that its view must be a reasonable one. In any case, the enforcer will still have to satisfy the court to the civil balance of proof (on the balance of probabilities) that an order should be made. In practice, therefore, the enforcer would need to have "reasonable grounds" for the application to a court. The court's power to order the enforcer to pay the business's costs if the enforcer does not succeed in its application and no order is made, or undertaking to the court given, will deter enforcers from bringing frivolous or ill-considered applications.

Wherever circumstances allow for it, we want businesses to be given as much notice as possible of any application to the court for an interim enforcement order. This includes cases where the OFT considers that proceedings are so urgent in order to safeguard consumers' interests that proceedings should be brought without delaying proceedings for seven days to allow for consultation. But where an application for an interim enforcement order is made without notice, the application is required to state why no notice has been given. This will assist the court in reaching its decision on whether it is appropriate to make an interim order without notice. It will also act as an incentive for enforcers to give notice unless there is very good reason not to do so.

We do not consider it necessary to include on the face of the Bill a requirement that the court should be explicitly required to consider the rights and interests of the person against whom an interim order is sought before making one, or that they should take into account the fact that the order would be made in the person's absence and without him or her having been given notice of the application. We are confident that the courts will invariably do this in exercising their discretion to make an interim order. That reflects the approach which the courts take to interim injunctions.

Moreover, section 6 of the Human Rights Act 1998 (HRA) already requires the courts to act in a way that is compatible with the ECHR unless primary legislation requires otherwise. As such, a court hearing an application under the Bill will need to be satisfied that it would not breach a person's rights under the ECHR to make an interim order. In the present case, the court would need to be satisfied that it was in the wider public interest for the order to be made. I can reassure the Committee that there is nothing in the Bill which would prevent this balancing exercise. Furthermore, I should add that the purpose of an enforcement order is not intended to stop a person earning his living: it is simply to direct him to conduct his business in a lawful manner.

Turning to the Committee's points on Part 9 of the Bill, I agree entirely with the Committee's view that the criteria for overseas disclosure are important, and must be transparent, proportionate and should be given legal backing. We are considering ways in which the legislative provision in this respect could be strengthened, with a view to bringing forward any appropriate amendments during the passage of the Bill.

2 July 2002

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