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Water Bill [HL]


Water Bill [HL]
Part 2 — New regulatory arrangements, etc

    58

 

                                       that person shall refer the matter to the Council.”

     (2)    Section 30 of the WIA (duties of Director with respect to complaints) shall cease

to have effect.

 49    Investigations by the Council

After section 29 of the WIA there is inserted—

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       “29A            Power of Council to investigate other matters

           (1)           The Council may investigate any matter (not being a matter which it is

its duty to investigate under this Part) which appears to it to be a matter

relating to the interests of consumers.

           (2)           Before undertaking an investigation under this section the Council

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shall consult the Authority, the Secretary of State and the Assembly.

           (3)           Where the Council has investigated a matter under this section it may

make a report on that matter to the Authority, the Secretary of State, the

Office of Fair Trading, the Assembly or any other public authority

whose functions appear to the Council to be exercisable in relation to

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that matter.

           (4)           Subject to subsection (5) below, the Council may—

                  (a)                 send a report on any matter investigated under this section to

any person who appears to the Council to have an interest in

that matter; and

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                  (b)                 publish any such report in such manner as the Council thinks

appropriate.

           (5)           Information which relates to the affairs of any particular individual or

body of persons (corporate or unincorporate)—

                  (a)                 shall not be included in a report which is to be sent to any

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person under subsection (4)(a) above, unless one or more of

paragraphs (a) to (c) of subsection (6) below applies; and

                  (b)                 shall be excluded from any such report which is to be published

under subsection (4)(b) above, unless one or more of

paragraphs (a) to (c) of subsection (7) below applies.

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           (6)           Information relating to a particular individual or body may be included

in a report to be sent under subsection (4)(a) above if—

                  (a)                 that individual or body has consented to the disclosure;

                  (b)                 it is information that is available to the public from some other

source; or

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                  (c)                 it is not information the disclosure of which would or might, in

the opinion of the Council, seriously and prejudicially affect the

interests of that individual or body.

           (7)           Information relating to a particular individual or body may be included

in a report to be published under subsection (4)(b) above if—

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                  (a)                 that individual or body has consented to the publication;

                  (b)                 it is information that is available to the public from some other

source; or

 

 

Water Bill [HL]
Part 2 — New regulatory arrangements, etc

    59

 

                  (c)                 it is not information the publication of which would or might,

in the opinion of the Council, seriously and prejudicially affect

the interests of that individual or body.

           (8)           Before deciding to include in such a report any information relating to

a particular individual or body in pursuance of subsection (6)(c) or

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(7)(c) above, the Council shall—

                  (a)                 consult that individual or body; and

                  (b)                 have regard to any opinion expressed by the Authority as to the

application of subsection (6)(c) or (7)(c) above to the

information or as to the desirability or otherwise of its inclusion

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in the report;

                                       and paragraph (b) applies whether the opinion is given in relation to

the information itself or to information of a description which applies

to that information.

           (9)           The Council shall not include in any report to be sent under subsection

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(4)(a) above or published under subsection (4)(b) above any

information which it considers relates to any matter which is, or is

likely to be, the subject of criminal proceedings.

           (10)          In considering whether information relates to any matter as mentioned

in subsection (9) above, the Council shall have regard to any opinion

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expressed (whether in relation to the information itself or to

information of a description which applies to that information) by the

Secretary of State, the Assembly or the Director of Public Prosecutions.”

Enforcement of obligations

 50    Financial penalties

25

     (1)    After section 22 of the WIA there is inserted—

“Financial penalties

       22A            Penalties

           (1)           Where the Authority is satisfied—

                  (a)                 in the case of any company holding an appointment under

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Chapter 1 of this Part, that the company—

                        (i)                        has contravened or is contravening any condition of the

appointment;

                        (ii)                       has caused or contributed to, or is causing or

contributing to, a contravention by a company holding

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a licence under Chapter 1A of this Part of any condition

of the licence; or

                        (iii)                      has failed or is failing to achieve any standard of

performance prescribed under section 38(2) or 95(2)

below; or

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                  (b)                 in the case of any company holding a licence under Chapter 1A

of this Part, that the company—

                        (i)                        has contravened or is contravening any condition of the

licence; or

 

 

Water Bill [HL]
Part 2 — New regulatory arrangements, etc

    60

 

                        (ii)                       has caused or contributed to, or is causing or

contributing to, a contravention by a company holding

an appointment under Chapter 1 of this Part of any

condition of the appointment,

                                       the Authority may, subject to section 22C below, impose on the

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company a penalty of such amount as is reasonable in all the

circumstances of the case.

           (2)           Where the Authority, the Secretary of State or the Assembly is

satisfied—

                  (a)                 in the case of any company holding an appointment under

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Chapter 1 of this Part, that the company—

                        (i)                        has contravened or is contravening any statutory or

other requirement which is enforceable under section 18

above and in relation to which he or it is the enforcement

authority; or

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                        (ii)                       has caused or contributed to, or is causing or

contributing to, a contravention by a company holding

a licence under Chapter 1A of this Part of any such

requirement; or

                  (b)                 in the case of any company holding a licence under Chapter 1A

20

of this Part, that the company—

                        (i)                        has contravened or is contravening any statutory or

other requirement which is enforceable under section 18

above and in relation to which he or it is the enforcement

authority; or

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                        (ii)                       has caused or contributed to, or is causing or

contributing to, a contravention by a company holding

an appointment under Chapter 1 of this Part of any such

requirement,

                         he or it may, subject to section 22C below, impose on the company a

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penalty of such amount as is reasonable in all the circumstances of the

case.

           (3)           In a case in which—

                  (a)                 subsection (1) above applies by virtue of paragraph (a)(ii) or

(b)(ii) of that subsection, or

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                  (b)                 subsection (2) above applies by virtue of paragraph (a)(ii) or

(b)(ii) of that subsection,

                         references in the following provisions of this section and sections 22B

and 22C below to a contravention include references to causing or

contributing to a contravention.

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           (4)           Before imposing a penalty on a company under subsection (1) or (2)

above the Authority, the Secretary of State or the Assembly (the

“enforcement authority”) shall give notice—

                  (a)                 stating that it proposes to impose a penalty and the amount of

the penalty proposed to be imposed;

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                  (b)                 setting out the condition, requirement or standard of

performance in question;

                  (c)                 specifying the acts or omissions which, in the opinion of the

enforcement authority, constitute the contravention or failure in

question and the other facts which, in the opinion of the

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Water Bill [HL]
Part 2 — New regulatory arrangements, etc

    61

 

enforcement authority, justify the imposition of a penalty and

the amount of the penalty proposed; and

                  (d)                 specifying the period (not being less than twenty-one days from

the date of publication of the notice) within which

representations or objections with respect to the proposed

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penalty may be made,

                                       and shall consider any representations or objections which are duly

made and not withdrawn.

           (5)           Before varying any proposal stated in a notice under subsection (4)(a)

above the enforcement authority shall give notice—

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                  (a)                 setting out the proposed variation and the reasons for it; and

                  (b)                 specifying the period (not being less than twenty-one days from

the date of publication of the notice) within which

representations or objections with respect to the proposed

variation may be made,

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                                       and shall consider any representations or objections which are duly

made and not withdrawn.

           (6)           As soon as practicable after imposing a penalty, the enforcement

authority shall give notice—

                  (a)                 stating that he or it has imposed a penalty on the company and

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its amount;

                  (b)                 setting out the condition, requirement or standard of

performance in question;

                  (c)                 specifying the acts or omissions which, in the opinion of the

enforcement authority, constitute the contravention or failure in

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question and the other facts which, in the opinion of the

enforcement authority, justify the imposition of the penalty and

its amount; and

                  (d)                 specifying a date, no earlier than the end of the period of forty-

two days from the date of service of the notice on the company,

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by which the penalty is required to be paid.

           (7)           The company may, within twenty-one days of the date of service on it

of a notice under subsection (6) above, make an application to the

enforcement authority for him or it to specify different dates by which

different portions of the penalty are to be paid.

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           (8)           Any notice required to be given under this section shall be given—

                  (a)                 by publishing the notice in such manner as the enforcement

authority considers appropriate for the purpose of bringing the

matters to which the notice relates to the attention of persons

likely to be affected by them;

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                  (b)                 by serving a copy of the notice on the company;

                  (c)                 by serving a copy of the notice on the Council; and

                  (d)                 where the notice is given by the Secretary of State or the

Assembly, by serving a copy of the notice on the Authority.

           (9)           Any sums received by the enforcement authority by way of penalty

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under this section shall be paid into the Consolidated Fund.

           (10)          The power of the enforcement authority to impose a penalty under this

section is not exercisable in respect of any contravention or failure

before the commencement of this section.

 

 

Water Bill [HL]
Part 2 — New regulatory arrangements, etc

    62

 

           (11)          No penalty imposed by an enforcement authority under this section

may exceed 10% of the turnover of the company (determined in

accordance with provisions specified in an order made, after consulting

the Assembly, by the Secretary of State).

           (12)          The power of the Secretary of State to make an order under subsection

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(11) above shall be exercisable by statutory instrument subject to

annulment in pursuance of a resolution of either House of Parliament.

           (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.

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       22B            Statement of policy with respect to penalties

           (1)           Each enforcement authority shall prepare and publish a statement of

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

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amount of any penalty, in respect of a contravention or failure an

enforcement authority shall have regard to his or its statement of policy

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

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where he or it does so shall publish the revised statement.

           (4)           Publication under this section shall be in such manner as the

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.

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           (5)           An enforcement authority shall undertake such consultation as he or it

considers appropriate when preparing or revising his or its statement

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

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contravention or failure, an enforcement authority may not impose a

penalty in respect of the contravention or failure later than the end of

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

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served on the company under section 22A(8) above; or

                  (b)                 a notice relating to the contravention or failure is served on the

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

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penalty in respect of the contravention or failure unless the notice

relating to the penalty under section 22A(4) above was served on the

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

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                  (b)                 where the provisional order is not confirmed, within six months

from the making of the provisional order.

 

 

 
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