Enterprise Act 2002 (c. 40)

(The document as of February, 2008)

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(b) in consequence of any provision made by or under this Act or for giving full effect to it.

(2) An order under this section may--

(a) modify any Act or subordinate legislation (including this Act);

(b) make incidental, supplementary, consequential, transitional, transitory or saving provision.

(3) The power to make an order under this section is exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(4) The power conferred by this section is not restricted by any other provision of this Act.

278 Minor and consequential amendments and repeals

(1) Schedule 25 (which contains minor and consequential amendments) has effect.

(2) Schedule 26 (which contains repeals and revocations) has effect.

279 Commencement

The preceding provisions of this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint; and different days may be appointed for different purposes.

280 Extent

(1) Sections 256 to 265, 267, 269 and 272 extend only to England and Wales.

(2) Sections 204, 248 to 255 and 270 extend only to England and Wales and Scotland (but subsection (3) of section 415A as inserted by section 270 extends only to England and Wales).

(3) Any other modifications by this Act of an enactment have the same extent as the enactment being modified.

(4) Otherwise, this Act extends to England and Wales, Scotland and Northern Ireland.

281 Short title

This Act may be cited as the Enterprise Act 2002.

SCHEDULES

Section 1

SCHEDULE 1 The Office of Fair Trading

Membership

1 (1) The OFT shall consist of a chairman and no fewer than four other members, appointed by the Secretary of State.

(2) The Secretary of State shall consult the chairman before appointing any other member.

Terms of appointment, remuneration, pensions etc.

2 (1) Subject to this Schedule, the chairman and other members shall hold and vacate office in accordance with the terms of their respective appointments.

(2) The terms of appointment of the chairman and other members shall be determined by the Secretary of State.

3 (1) An appointment of a person to hold office as chairman or other member shall be for a term not exceeding five years.

(2) A person holding office as chairman or other member--

(a) may resign that office by giving notice in writing to the Secretary of State; and

(b) may be removed from office by the Secretary of State on the ground of incapacity or misbehaviour.

(3) A previous appointment as chairman or other member does not affect a person's eligibility for appointment to either office.

4 (1) The OFT shall pay to the chairman and other members such remuneration, and such travelling and other allowances, as may be determined by the Secretary of State.

(2) The OFT shall, if required to do so by the Secretary of State--

(a) pay such pension, allowances or gratuities as may be determined by the Secretary of State to or in respect of a person who holds or has held office as chairman or other member; or

(b) make such payments as may be so determined towards provision for the payment of a pension, allowances or gratuities to or in respect of such a person.

(3) If, where any person ceases to hold office as chairman or other member, the Secretary of State determines that there are special circumstances which make it right that he should receive compensation, the OFT shall pay to him such amount by way of compensation as the Secretary of State may determine.

Staff

5 (1) The Secretary of State shall, after consulting the chairman, appoint a person (who may, subject to sub-paragraph (2), also be a member of the OFT) to act as chief executive of the OFT on such terms and conditions as the Secretary of State may think appropriate.

(2) A person appointed as chief executive after the end of the transitional period may not at the same time be chairman.

(3) In sub-paragraph (2) "the transitional period" means the period of two years beginning with the day on which this paragraph comes into force.

6 The OFT may, with the approval of the Minister for the Civil Service as to numbers and terms and conditions of service, appoint such other staff as it may determine.

Membership of committees or sub-committees of OFT

7 The members of a committee or sub-committee of the OFT may include persons who are not members of the OFT (and a sub-committee may include persons who are not members of the committee which established it).

Proceedings etc.

8 (1) The OFT may regulate its own procedure (including quorum).

(2) The OFT shall consult the Secretary of State before making or revising its rules and procedures for dealing with conflicts of interest.

(3) The OFT shall from time to time publish a summary of its rules and procedures for dealing with conflicts of interest.

9 The validity of anything done by the OFT is not affected by a vacancy among its members or by a defect in the appointment of a member.

10 (1) The application of the seal of the OFT shall be authenticated by the signature of--

(a) any member; or

(b) some other person who has been authorised for that purpose by the OFT, whether generally or specially.

(2) Sub-paragraph (1) does not apply in relation to any document which is, or is to be, signed in accordance with the law of Scotland.

11 A document purporting to be duly executed under the seal of the OFT, or signed on its behalf, shall be received in evidence and, unless the contrary is proved, be taken to be so executed or signed.

Performance of functions

12 (1) Anything authorised or required to be done by the OFT (including exercising the power under this paragraph) may be done by--

(a) any member or employee of the OFT who is authorised for that purpose by the OFT, whether generally or specially;

(b) any committee of the OFT which has been so authorised.

(2) Sub-paragraph (1)(b) does not apply to a committee whose members include any person who is not a member or employee of the OFT.

Supplementary powers

13 The OFT has power to do anything which is calculated to facilitate, or is conducive or incidental to, the performance of its functions.

Parliamentary Commissioner Act 1967 (c. 13)

14 In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments and authorities subject to investigation), there is inserted at the appropriate place--

" Office of Fair Trading. "

House of Commons Disqualification Act 1975 (c. 24)

15 In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975 (bodies of which all members are disqualified), there is inserted at the appropriate place--

" The Office of Fair Trading. "

Northern Ireland Assembly Disqualification Act 1975 (c. 25)

16 In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (bodies of which all members are disqualified), there is inserted at the appropriate place--

" The Office of Fair Trading. "

Section 12

SCHEDULE 2 The Competition Appeal Tribunal

Appointment, etc. of President and chairmen

1 (1) A person is not eligible for appointment as President unless--

(a) he has a 10 year general qualification;

(b) he is an advocate or solicitor in Scotland of at least 10 years' standing; or

(c) he is a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least 10 years' standing;

and he appears to the Lord Chancellor to have appropriate experience and knowledge of competition law and practice.

(2) A person is not eligible for appointment as a chairman unless--

(a) he has a 7 year general qualification;

(b) he is an advocate or solicitor in Scotland of at least 7 years' standing; or

(c) he is a member of the Bar of Northern Ireland or solicitor of the Supreme Court of Northern Ireland of at least 7 years' standing;

and he appears to the Lord Chancellor to have appropriate experience and knowledge (either of competition law and practice or any other relevant law and practice).

(3) Before appointing an advocate or solicitor in Scotland under this paragraph, the Lord Chancellor must consult the Lord President of the Court of Session.

(4) In this paragraph "general qualification" has the same meaning as in section 71 of the Courts and Legal Services Act 1990 (c. 41).

2 (1) The members appointed as President or as chairmen shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.

(2) A person may not be a chairman for more than 8 years (but this does not prevent a temporary re-appointment for the purpose of continuing to act as a member of the Tribunal as constituted for the purposes of any proceedings instituted before the end of his term of office).

(3) The President and the chairmen may resign their offices by notice in writing to the Lord Chancellor.

(4) The Lord Chancellor may remove a person from office as President or chairman on the ground of incapacity or misbehaviour.

3 If the President is absent or otherwise unable to act the Lord Chancellor may appoint as acting President any person qualified for appointment as a chairman.

Appointment, etc. of ordinary members

4 (1) Ordinary members shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.

(2) A person may not be an ordinary member for more than 8 years (but this does not prevent a temporary re-appointment for the purpose of continuing to act as a member of the Tribunal as constituted for the purposes of any proceedings instituted before the end of his term of office).

(3) An ordinary member may resign his office by notice in writing to the Secretary of State.

(4) The Secretary of State may remove a person from office as an ordinary member on the ground of incapacity or misbehaviour.

Remuneration etc. for members

5 (1) The Competition Service shall pay to the President, the chairmen and the ordinary members such remuneration (whether by way of salaries or fees), and such allowances, as the Secretary of State may determine.

(2) The Competition Service shall, if required to do so by the Secretary of State--

(a) pay such pension, allowances or gratuities as may be determined by the Secretary of State to or in respect of a person who holds or has held office as President, a chairman or an ordinary member; or

(b) make such payments as may be so determined towards provision for the payment of a pension, allowance or gratuities to or in respect of such a person.

Compensation for loss of office

6 If, where any person ceases to hold office as President, a chairman or ordinary member, the Secretary of State determines that there are special circumstances which make it right that he should receive compensation, the Competition Service shall pay to him such amount by way of compensation as the Secretary of State may determine.

Staff, accommodation and property

7 Any staff, office accommodation or equipment required for the Tribunal shall be provided by the Competition Service.

Miscellaneous

8 The President must arrange such training for members of the Tribunal as he considers appropriate.

9 In this Schedule "chairman" and "ordinary member" mean respectively a member of the panel of chairmen, or a member of the panel of ordinary members, appointed under section 12.

10 In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975 (bodies of which all members are disqualified), there is inserted at the appropriate place--

" The Competition Appeal Tribunal. "

11 In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (bodies of which all members are disqualified), there is inserted at the appropriate place--

" The Competition Appeal Tribunal. "

Section 13

SCHEDULE 3 The Competition Service

Part 1 Constitution etc.

Membership of the Service

1 (1) The Service shall consist of--

(a) the President of the Competition Appeal Tribunal;

(b) the Registrar of the Competition Appeal Tribunal; and

(2) An appointed member shall be appointed by the Secretary of State after consulting the President.

Chairman of Service

2 (1) Subject to sub-paragraph (2), the members shall choose one of their number to be chairman of the Service.

(2) The Secretary of State shall designate one of the members to be the first chairman of the Service for such period as the Secretary of State may determine.

Appointed members

3 An appointed member shall hold and vacate office in accordance with the terms of his appointment (and is eligible for re-appointment).

Allowances, etc. for members

4 (1) The Service shall pay--

(a) such travelling and other allowances to its members, and

(b) such remuneration to any appointed member,

as may be determined by the Secretary of State.

(2) The Service shall, if required to do so by the Secretary of State--

(a) pay such pension, allowances or gratuities as may be determined by the Secretary of State to or in respect of a person who holds or has held office as an appointed member; or

(b) make such payments as may be so determined towards provision for the payment of a pension, allowances or gratuities to or in respect of such a person.

5 If, where any person ceases to hold office as an appointed member, the Secretary of State determines that there are special circumstances which make it right that he should receive compensation, the Service shall pay to him such amount by way of compensation as the Secretary of State may determine.

Staff

6 (1) The Service may, with the approval of the Secretary of State as to numbers and terms and conditions of service, appoint such staff as it may determine.

(2) The persons to whom section 1 of the Superannuation Act 1972 (c. 11) (persons to or in respect of whom benefits may be provided by schemes under that section) applies shall include the staff of the Service.

(3) The Service shall pay to the Minister for the Civil Service, at such times as he may direct, such sums as he may determine in respect of any increase attributable to sub-paragraph (2) in the sums payable out of money provided by Parliament under the Superannuation Act 1972.

Procedure

7 (1) The Service may regulate its own procedure (including quorum).

(2) The validity of anything done by the Service is not affected by a vacancy among its members or by a defect in the appointment of a member.

8 (1) The application of the seal of the Service shall be authenticated by the signature of--

(a) any member; or

(b) some other person who has been authorised for that purpose by the Service, whether generally or specially.

(2) Sub-paragraph (1) does not apply in relation to any document which is, or is to be, signed in accordance with the law of Scotland.

9 A document purporting to be duly executed under the seal of the Service, or signed on its behalf, shall be received in evidence and, unless the contrary is proved, be taken to be so executed or signed.

The Service's powers

10 The Service has power to do anything which is calculated to facilitate, or is conducive or incidental to, the performance of its functions.

Accounts

11 (1) The Service shall keep proper accounts and proper records in relation to its accounts.

(2) In performing that duty the Service shall, in addition to accounts and records relating to its own activities (including the services provided to the Tribunal), keep separate accounts and separate records in relation to the activities of the Tribunal.

12 (1) The Service shall--

(a) prepare a statement of accounts in respect of each of its financial years; and

(b) prepare a statement of accounts for the Tribunal for each of its financial years.

(2) The Service must send copies of the accounts required by sub-paragraph (1) to the Secretary of State and to the Comptroller and Auditor General before the end of August following the financial year to which they relate.

(3) Those accounts must comply with any directions given by the Secretary of State with the approval of the Treasury as to--

(a) the information to be contained in them;

(b) the manner in which that information is to be presented; and

(4) The Comptroller and Auditor General shall--

(a) examine, certify and report on each statement of accounts received by him; and

(b) lay copies of each statement before Parliament.

(5) In this paragraph "financial year" means the period of 12 months ending with 31st March.

Part 2 Transfers of property etc. between the Commission and the Service

13 (1) The Secretary of State may make one or more schemes for the transfer to the Service of defined property, rights and liabilities of the Commission (including rights and liabilities relating to contracts of employment).

(2) A scheme may define the property, rights and liabilities to be transferred by specifying or describing them or by referring to all (or all except anything specified or described) of the property, rights and liabilities comprised in a specified part of the undertaking of the transferor.

(3) The property, rights and liabilities which may be transferred include any that would otherwise be incapable of being transferred or assigned.

(4) A scheme may include supplementary, incidental, transitional and consequential provision.

14 (1) On the day appointed by a scheme under paragraph 13, the property, rights and liabilities which are the subject of the scheme shall, by virtue of this sub-paragraph, be transferred in accordance with the provisions of the scheme.

(2) If, after that day, the Commission and the Service so agree in writing, the scheme shall for all purposes be deemed to have come into force on that day with such modification as may be agreed.

(3) An agreement under sub-paragraph (2) may, in connection with giving effect to modifications to the scheme, include supplemental, incidental, transitional and consequential provision.

15 The transfer by paragraph 14(1) of the rights and liabilities relating to an individual's contract of employment does not break the continuity of his employment and, accordingly--

(a) he is not to be regarded for the purposes of Part 11 of the Employment Rights Act 1996 as having been dismissed by virtue of the transfer; and

(b) his period of employment with the transferor counts as a period of employment with the transferee for the purposes of that Act.

16 (1) Anything done by or in relation to the transferor for the purposes of or in connection with anything transferred by paragraph 14(1) which is in effect immediately before it is transferred shall be treated as if done by or in relation to the transferee.

(2) There may be continued by or in relation to the transferee anything (including legal proceedings) relating to anything so transferred which is in the process of being done by or in relation to the transferor immediately before it is transferred.

(3) A reference to the transferor in any document relating to anything so transferred shall be taken (so far as necessary for the purposes of or in consequence of the transfer) as a reference to the transferee.

(4) A transfer under paragraph 14(1) does not affect the validity of anything done by or in relation to the transferor before the transfer takes effect.

Part 3 Miscellaneous

17 In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975 (bodies of which all members are disqualified), there is inserted at the appropriate place--

" The Competition Service. "

18 In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (bodies of which all members are disqualified), there is inserted at the appropriate place--

" The Competition Service. "

Sections 14 and 15

SCHEDULE 4 Tribunal: procedure

Part 1 General

Decisions of the Tribunal

1 (1) A decision of the Tribunal in any proceedings before it must--

(a) state the reasons for the decision and whether it was unanimous or taken by a majority;

(b) be recorded in a document signed and dated by the chairman of the Tribunal dealing with the proceedings.

(2) In preparing that document the Tribunal shall have regard to the need for excluding, so far as practicable--

(a) information the disclosure of which would in its opinion be contrary to the public interest;

(b) commercial information the disclosure of which would or might, in its opinion, significantly harm the legitimate business interests of the undertaking to which it relates;

(c) information relating to the private affairs of an individual the disclosure of which would, or might, in its opinion, significantly harm his interests.

(3) But the Tribunal shall also have regard to the extent to which any disclosure mentioned in sub-paragraph (2) is necessary for the purpose of explaining the reasons for the decision.

(4) The President shall make such arrangements for the publication of the decisions of the Tribunal as he considers appropriate.

Enforcement of decisions in Great Britain

2 If a decision of the Tribunal is registered in England and Wales in accordance with rules of court or any practice direction--

(a) payment of damages which are awarded by the decision;

(b) costs or expenses awarded by the decision; and

may be enforced by the High Court as if the damages, costs or expenses were an amount due in pursuance of a judgment or order of the High Court, or as if the direction were an order of the High Court.

3 If a decision of the Tribunal awards damages, costs or expenses, or results in any direction being given, the decision may be recorded for execution in the Books of Council and Session and shall be enforceable accordingly.

4 Subject to rules of court or any practice direction, a decision of the Tribunal may be registered or recorded for execution--

(a) for the purpose of enforcing a direction given as a result of the decision, by the Registrar of the Tribunal or a person who was a party to the proceedings;

(b) for the purpose of enforcing a decision to award damages, costs or expenses (other than a decision to which paragraph (c) applies), by the person to whom the sum concerned was awarded; and

(c) for the purpose of enforcing a decision to award damages which is the subject of an order under section 47B(6) of the 1998 Act, by the specified body concerned.

Enforcement of decisions in Northern Ireland

5 (1) A decision of the Tribunal may be enforced in Northern Ireland with the leave of the High Court in Northern Ireland--

(a) in the case of a direction given as a result of the decision, by the Registrar of the Tribunal or a person who was a party to the proceedings;

(b) for the purpose of enforcing a decision to award damages, costs or expenses (other than a decision to which paragraph (c) applies), by the person to whom the sum concerned was awarded; and

(c) for the purpose of enforcing a decision to award damages which is the subject of an order under section 47B(6) of the 1998 Act, by the specified body concerned.

(2) For the purpose of enforcing in Northern Ireland a decision to award damages, costs or expenses--

(a) payment may be enforced as if the damages, costs or expenses were an amount due in pursuance of a judgment or order of the High Court in Northern Ireland; and

(b) a sum equal to the amount of damages, costs or expenses shall be deemed to be payable under a money judgment within the meaning of Article 2(2) of the Judgments Enforcement (Northern Ireland) Order 1981 (S.I. 1981/226 (N.I. 6)) (and the provisions of that Order apply accordingly).

(3) For the purpose of enforcing in Northern Ireland a direction given as a result of a decision of the Tribunal, the direction may be enforced as if it were an order of the High Court in Northern Ireland.

Miscellaneous

6 A decision of the Tribunal in proceedings under section 47B of the 1998 Act which--

(a) awards damages to an individual in respect of a claim made or continued on his behalf (but is not the subject of an order under section 47B(6)); or

(b) awards costs or expenses to an individual in respect of proceedings in respect of a claim made under section 47A of that Act prior to its being continued on his behalf in the proceedings under section 47B,

may only be enforced by the individual concerned with the permission of the High Court or Court of Session.

7 An award of costs or expenses against a specified body in proceedings under section 47B of the 1998 Act may not be enforced against any individual on whose behalf a claim was made or continued in those proceedings.

8 In this Part of this Schedule any reference to damages includes a reference to any sum of money (other than costs or expenses) which may be awarded in respect of a claim made under section 47A of the 1998 Act or included in proceedings under section 47B of that Act.

Part 2 Tribunal rules

General

9 In this Schedule "the Tribunal", in relation to any proceedings before it, means the Tribunal as constituted (in accordance with section 14) for the purposes of those proceedings.

10 Tribunal rules may make different provision for different kinds of proceedings.

Institution of proceedings

11 (1) Tribunal rules may make provision as to the period within which and the manner in which proceedings are to be brought.

(2) That provision may, in particular--

(a) provide for time limits for making claims to which section 47A of the 1998 Act applies in proceedings under section 47A or 47B;

(b) provide for the Tribunal to extend the period in which any particular proceedings may be brought; and

(c) provide for the form, contents, amendment and acknowledgement of the documents by which proceedings are to be instituted.

12 Tribunal rules may provide for the Tribunal to reject any proceedings (other than proceedings under section 47A or 47B of the 1998 Act) if it considers that--

(a) the person instituting them does not have a sufficient interest in the decision with respect to which the proceedings are brought; or

(b) the document by which he institutes them discloses no valid grounds for bringing them.

13 Tribunal rules may provide for the Tribunal--

(a) to reject the whole of any proceedings under section 47B of the 1998 Act if it considers that the person bringing the proceedings is not entitled to do so or that the proceedings do not satisfy the requirements of section 47B(1);

(b) to reject any claim which is included in proceedings under section 47B if it considers that--

(i) the claim is not a consumer claim (within the meaning of section 47B(2)) which may be included in such proceedings; or

(ii) the individual concerned has not consented to its being made or continued on his behalf in such proceedings; or

(c) to reject any claim made under section 47A of the 1998 Act or included in proceedings under section 47B of that Act if it considers that there are no reasonable grounds for making it.

14 Tribunal rules may provide for the Tribunal to reject any proceedings if it is satisfied that the person instituting the proceedings has habitually and persistently and without any reasonable ground--

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