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.
2000 (S.I. 2000/261)
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.
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.
COMPETITION ACT 1998 (DIRECTOR'S RULES) ORDER 2000 (S.I. 2000/293)
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
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
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