Office of Public Sector Information
Section 5.
1 (1) This paragraph confers power to provide that, where an enforcement officer expresses to any person any opinion as to what remedial action should be taken by that person, then, if that person so requests, the officer—
(a) shall as soon as practicable give to him a written notice which satisfies the requirements of sub-paragraph (2) below; and
(b) shall not take any enforcement action against him until after the end of such period beginning with the giving of the notice as may be determined by or under the order.
(2) A notice satisfies the requirements of this sub-paragraph if it—
(a) states the nature of the remedial action which in the officer’s opinion should be taken, and explains why and within what period;
(b) explains what constitutes the failure to observe the restriction or to comply with the requirement or condition; and
(c) states the nature of the enforcement action which could be taken and states whether there is a right to make representations before, or a right of appeal against, the taking of such action.
2 (1) This paragraph confers power to provide that, where an enforcement officer—
(a) takes immediate enforcement action against any person; or
(b) requires any person to take immediate remedial action,
the officer shall as soon as practicable give to that person a written notice explaining why it appeared to him to be necessary to take such action or impose such a requirement.
(2) The power conferred by this paragraph shall not be exercisable unless the restriction, requirement or condition is such that observance of or compliance with it would be likely to involve expenditure of a significant amount.
3 This paragraph confers power to provide that, before an enforcement officer takes any enforcement action against any person, the officer—
(a) shall give to that person a written notice stating—
(i) that he is considering taking the action and the reasons why he is considering it; and
(ii) that the person may, within a period specified in the notice, make written representations to him or, if the person so requests, make oral representations to him in the presence of a person determined by or under the order;
and
(b) shall consider any representations which are duly made and not withdrawn.
4 This paragraph confers power to provide that, where—
(a) an enforcement officer has taken enforcement action against any person; and
(b) the relevant enactment contains any provision conferring a right of appeal against such action,
the officer shall as soon as practicable give to that person a written notice explaining how, where, within what period, and on what grounds, an appeal may be brought, and whether the enforcement action would be stayed or, in Scotland, suspended while an appeal were pending.
5 (1) This paragraph confers power to provide that, where—
(a) a third person will or may be required to meet or make a significant contribution towards the cost of observing the restriction or complying with the requirement or condition; or
(b) the enforcement action which may be or has been taken specifically relates to goods or services which are to be or have been supplied by a third person,
any relevant provision shall, with any modifications specified in the order, apply in relation to that person.
(2) In this paragraph—
“relevant provision” means any provision made by virtue of paragraphs 1 to 4 above or any provision of the relevant enactment which is to the like effect;
“third person” means any person other than the one against whom enforcement action may be or has been taken.
Section 7.
1 (1) The Director General of Telecommunications shall be entitled to exercise, concurrently with the Director General of Fair Trading, the functions of that Director under the provisions inserted in the [1973 c. 41.] Fair Trading Act 1973 by section 7 above, so far as relating to monopoly situations which exist or may exist in relation to commercial activities connected with telecommunications; and references in those provisions to that Director shall be construed accordingly.
(2) In sub-paragraph (1) above, “commercial activities connected with telecommunications” has the same meaning as in the [1984 c. 12.] Telecommunications Act 1984.
2 In section 50(4) of the Telecommunications Act 1984 (which makes provision about the exercise of functions exercised concurrently by the Director General of Fair Trading and the Director General of Telecommunications) after paragraph (c) there shall be inserted “and
(d) paragraph 1 of Schedule 2 to the Deregulation and Contracting Out Act 1994,”.
3 In section 50(6) of the Telecommunications Act 1984 (power of Secretary of State to determine any question as to the application of certain provisions) after “above” there shall be inserted “or paragraph 1 of Schedule 2 to the Deregulation and Contracting Out Act 1994”.
4 (1) The Director General of Electricity Supply shall be entitled to exercise, concurrently with the Director General of Fair Trading, the functions of that Director under the provisions inserted in the [1973 c. 41.] Fair Trading Act 1973 by section 7 above, so far as relating to monopoly situations which exist or may exist in relation to commercial activities connected with the generation, transmission or supply of electricity; and references in those provisions to that Director shall be construed accordingly.
(2) In sub-paragraph (1) above, “commercial activities connected with the generation, transmission or supply of electricity” has the same meaning as in section 43(2) of the [1989 c. 29.] Electricity Act 1989.
5 (1) The Director General of Electricity Supply for Northern Ireland shall be entitled to exercise, concurrently with the Director General of Fair Trading, the functions of that Director under the provisions inserted in the [1973 c. 41.] Fair Trading Act 1973 by section 7 above, so far as relating to monopoly situations which exist or may exist in relation to commercial activities connected with the generation, transmission or supply of electricity; and references in those provisions to that Director shall be construed accordingly.
(2) In sub-paragraph (1) above, “commercial activities connected with the generation, transmission or supply of electricity” has the same meaning as in Article 46(2) of the [S. I. 1992/231 (N.I. 1.)] Electricity (Northern Ireland) Order 1992.
6 (1) In section 43(4) of the Electricity Act 1989 (which makes provision about the exercise of functions exercised concurrently by the Director General of Fair Trading and the Director General of Electricity Supply) after paragraph (c) there shall be inserted “and
(d) paragraph 4 of Schedule 2 to the Deregulation and Contracting Out Act 1994,”.
(2) In Article 46(4) of the Electricity (Northern Ireland) Order 1992 (which makes similar provision in relation to the Director General of Fair Trading and the Director General of Electricity Supply for Northern Ireland) after sub-paragraph (c) there shall be inserted “and
(d) paragraph 5 of Schedule 2 to the Deregulation and Contracting Out Act 1994,”.
7 (1) In section 43(6) of the Electricity Act 1989 (power of Secretary of State to determine any question as to the application of certain provisions) after “above” there shall be inserted “or paragraph 4 of Schedule 2 to the Deregulation and Contracting Out Act 1994”.
(2) In Article 46(6) of the Electricity (Northern Ireland) Order 1992 (corresponding power of Department of Economic Development) after “(3)” there shall be inserted “or paragraph 5 of Schedule 2 to the Deregulation and Contracting Out Act 1994”.
8 (1) The Director General of Water Services shall be entitled to exercise, concurrently with the Director General of Fair Trading, the functions of that Director under the provisions inserted in the Fair Trading Act 1973 by section 7 above, so far as relating to monopoly situations which exist or may exist in relation to commercial activities connected with the supply of water or the provision of sewerage services.
(2) In sub-paragraph (1) above, “commercial activities connected with the supply of water or the provision of sewerage services” has the same meaning as in section 31(2) of the [1991 c. 56.] Water Industry Act 1991.
9 So far as necessary for the purposes of, or in connection with, sub-paragraph (1) of paragraph 8 above, the references to the Director General of Fair Trading in the provisions mentioned in that sub-paragraph shall be construed as if they were or, as the case may require, as if they included references to the Director General of Water Services.
10 (1) Section 31 of the [1991 c. 56.] Water Industry Act 1991 shall be amended as follows.
(2) In subsection (5) (duty to consult other Director in case of functions exercisable concurrently by Director General of Water Services and Director General of Fair Trading) after “subsection (3) above” there shall be inserted “or in paragraph 8 of Schedule 2 to the Deregulation and Contracting Out Act 1994”.
(3) In subsection (6) (exercise of function by one Director to exclude exercise in the same matter by the other Director)—
(a) after the words “subsection (3) above”, in the first place where they occur, there shall be inserted “or in paragraph 8 of Schedule 2 to the Deregulation and Contracting Out Act 1994”, and
(b) for “that paragraph or, as the case may be, in subsection (3) above” there shall be substituted “that provision”.
(4) In subsection (8) (power of Secretary of State to determine any question as to the application of certain provisions) after “above” there shall be inserted “or paragraph 8 of Schedule 2 to the Deregulation and Contracting Out Act 1994”.
11 (1) The Rail Regulator shall be entitled to exercise, concurrently with the Director General of Fair Trading, the functions of that Director under the provisions inserted in the [1973 c. 41.] Fair Trading Act 1973 by section 7 above, so far as relating to monopoly situations which exist or may exist in relation to the supply of railway services; and references in those provisions to the Director shall be construed accordingly.
(2) In sub-paragraph (1) above, “the supply of railway services” has the same meaning as in section 67(2) of the [1993 c. 43.] Railways Act 1993.
12 In section 67(4) of the Railways Act 1993 (which makes provision about the exercise of functions exercised concurrently by the Director General of Fair Trading and the Rail Regulator) after paragraph (c) there shall be inserted “and
(d) paragraph 11 of Schedule 2 to the Deregulation and Contracting Out Act 1994,”.
13 In section 67(8) of the Railways Act 1993 (power of Secretary of State to determine any question as to the application of certain provisions) after “above” there shall be inserted “or paragraph 11 of Schedule 2 to the Deregulation and Contracting Out Act 1994”.
14 Section 93B of the Fair Trading Act 1973 (offences of furnishing false or misleading information in connection with functions of the Director General of Fair Trading under Part IV of that Act) shall have effect, so far as relating to functions exercisable by the Rail Regulator by virtue of paragraph 11 above, as if the reference in subsection (1)(a) of that section to the Director included a reference to the Rail Regulator.
15 Expressions used in this Schedule which are also used in the [1973 c. 41.] Fair Trading Act 1973 have the same meanings as in that Act.
Deregulation and Contracting Out Act 1994