Deregulation and Contracting Out Act 1994 (c. 40)

(The document as of February, 2008)

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(3) Subject to subsection (4) below, this Part shall have effect as if--

(a) any reference to a Minister included references to the Forestry Commissioners and the Intervention Board for Agricultural Produce; and

(b) any reference to a local authority included references to a joint board and a joint committee.

(4) Nothing in subsection (3) above shall be construed as enabling those Commissioners or that Board to make an order under section 69 or 70 above; and any order under section 69 above which relates to a function of that Board shall be made by the Ministers (within the meaning of Part I of the [1957 c. 57.] Agriculture Act 1957).

(5) Subject to subsection (6) below, any function of an examiner or other officer of the Patent Office which is conferred by or under any enactment shall be treated for all purposes of this Part as if it were a function of the Comptroller-General of Patents, Designs and Trade Marks.

(6) In any case where by virtue of an order made under section 69 above a person is authorised by that Comptroller to exercise any such function as is mentioned in subsection (5) above, section 72(2) above shall have effect as if for paragraphs (a) and (b) there were substituted the words "by or in relation to an examiner or other officer of the Patent Office in his capacity as such".

Part III Supplementary

80 Financial provisions

(1) There shall be paid out of money provided by Parliament--

(a) any sums required by a Minister of the Crown, an office-holder, the Forestry Commissioners or the Intervention Board for Agricultural Produce for making payments under contracts entered into under or by virtue of Part II of this Act;

(b) any administrative expenses incurred by a Minister of the Crown or office-holder in consequence of the provisions of this Act; and

(2) In this section--

"Minister of the Crown" has the same meaning as in the Ministers of the [1975 c. 26.] Crown Act 1975;
"office-holder" has the same meaning as in Part II of this Act.

81 Repeals

(1) The enactments mentioned in Schedule 17 to this Act (which include enactments which are spent) are hereby repealed to the extent specified in the third column of that Schedule.

(2) The extent of any repeal in that Schedule of an enactment is the same as that of the enactment repealed.

82 Short title, commencement and extent

(1) This Act may be cited as the Deregulation and Contracting Out Act 1994.

(2) The provisions of this Act set out below shall come into force at the end of the period of two months beginning with the day on which this Act is passed, that is to say--

(a) sections 7, 9, 10, 12, 15, 16, 17, 20, 21 and 31,

(b) Schedules 2 to 4,

(d) Schedule 9,

(e) section 39 and Schedule 11 so far as relating to sections 93A and 133 of the Fair Trading Act 1973, the Energy Act 1976, the Competition Act 1980, the Building Societies Act 1986, the Financial Services Act 1986, the Companies Act 1989 and the Companies (Northern Ireland) Order 1990,

(f) Part II, and

(g) section 81 and Schedule 17 so far as relating to the Fair Trading Act 1973, the Competition Act 1980, the Telecommunications Act 1984, the Gas Act 1986, the Building Societies Act 1986, the Financial Services Act 1986, the Electricity Act 1989, the Companies Act 1989, the Companies (Northern Ireland) Order 1990, the Electricity (Northern Ireland) Order 1992 and the Railways Act 1993.

(3) The provisions of this Act set out below shall come into force on the day on which this Act is passed, that is to say--

(a) Chapter I of Part I,

(b) sections 14, 18, 25 to 30, 32 to 34 and 37,

(d) section 40,

(e) sections 41, 54 and 55,

(f) section 57(1) so far as relating to paragraph 14(1)(c) and (d) of Schedule 13, and paragraph 14(1)(c) and (d) of Schedule 13,

(g) section 81 and Schedule 17 so far as relating to the Road Traffic Regulation Act 1984, the Weights and Measures Act 1985, the Charities Act 1992 and the Charities Act 1993, and

(h) this section.

(4) The remaining provisions of this Act, other than section 36(2), 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 so appointed for different purposes.

(5) An order under subsection (4) above may include such transitional provisions and savings as appear to the Secretary of State to be necessary or expedient in connection with the coming into force of section 36(1) or Chapters III and IV of Part I of this Act.

(6) Section 36(2) shall come into force on such day as the Department of Economic Development in Northern Ireland may by order appoint.

(7) An order under subsection (6) above--

(a) may contain such transitional provisions as appear to the Department of Economic Development in Northern Ireland to be necessary or expedient in connection with the coming into force of section 36(2), and

(b) shall be a statutory rule for the purposes of the [S.I. 1979/1573 (N.I. 12).] Statutory Rules (Northern Ireland) Order 1979.

(8) Except in so far as any provision of this Act otherwise provides, this Act, other than Chapter I of Part I and this section, does not extend to Northern Ireland.

SCHEDULES

Section 5.

SCHEDULE 1 Powers to Improve Enforcement Procedures

Explanation of suggested remedial action

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.

Explanation of immediate enforcement action etc.

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.

Right to make representations

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;

(b) shall consider any representations which are duly made and not withdrawn.

Explanation of right of appeal

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.

Application of provisions to other interested persons

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.

SCHEDULE 2 Section 7: Sectoral Regulators

Telecommunications

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".

Electricity

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".

Water

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".

Railways

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.

Interpretation

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.

Section 10.

SCHEDULE 3 Non-notifiable Agreements: Modifications of the Restrictive Trade Practices Act 1976

The [1976 c. 34.] Restrtctive Trade Practices Act 1976 shall be amended as follows.

2 In section 1 (registration of agreements) after subsection (2) there shall be inserted--

" (2A) In the case of a non-notifiable agreement, subsection (2)(a) and (b) above shall only apply where the Director considers that any restrictions or information provisions by virtue of which this Act applies to the agreement are of such significance as to call for investigation by the Court. "

3 (1) Section 24 (particulars and time for registration) shall be amended as follows.

(2) In subsection (1) (duty to furnish particulars of agreements subject to registration under the Act) after "under this Act" there shall be inserted ", other than a non-notifiable agreement,".

(3) In subsection (2) (additional provisions about particulars to be furnished)--

(a) in paragraph (a), after "under this Act" there shall be inserted "and is not a non-notifiable agreement", and

(b) in paragraph (b), for "such an agreement" there shall be substituted "an agreement which, at the time of the variation or determination, falls within paragraph (a) above".

(4) After that subsection there shall be inserted--

" (2A) Subsections (1) and (2)(a) above shall not apply in relation to an agreement which ceases to be a non-notifiable agreement by virtue of the Director entering or filing particulars of it under section 1(2)(b) above. "

4 After section 25 there shall be inserted--

" 25A Registration of non-notifiable agreement: duty to inform parties

(1) Where an agreement ceases to be a non-notifiable agreement by virtue of the Director entering or filing particulars of it under section 1(2)(b) above, he shall give notice of that fact to each of the parties to the agreement.

(2) Regulations under section 27 below may prescribe how notice under subsection (1) above is to be given and who is to be treated as a party to an agreement for the purposes of that subsection. "

5 (1) Section 26 shall be amended as follows.

(2) In subsection (2) (power of the Restrictive Practices Court to make declarations as to certain matters) for the words from "and" to the end there shall be substituted ", declare whether or not it is subject to registration under this Act and declare whether or not it is a non-notifiable agreement."

(3) For subsection (3) there shall be substituted--

" (3) Where a party to an agreement makes an application for a declaration under subsection (2) above, the Director shall not enter or file particulars of the agreement in the register during the time during which the proceedings and any appeal therein are pending.

(3A) Subsection (3) above shall not apply where--

(a) the only question in relation to which the declaration is sought is whether or not the agreement is a non-notifiable agreement, and

(b) the Director considers that any restrictions or information provisions by virtue of which this Act applies to the agreement are of such significance as to call for investigation by the Court.

(3B) Where--

(a) a party to an agreement makes an application for a declaration under subsection (2) above,

(b) the question in relation to which the declaration is sought is relevant to the existence of a duty to furnish particulars of the agreement under section 24 above, and

(c) the application is made before the expiry of the time within which particulars of the agreement are required to be furnished if the duty to furnish particulars under that section applies,

then, if particulars of the agreement have not been furnished under that section before the commencement of the proceedings, that time shall be extended by a time equal to the time during which the proceedings and any appeal therein are pending, and such further time, if any, as the Court may direct. "

6 In section 36 (Director's power to obtain information) after subsection (3) there shall be inserted--

" (3A) The Director may give notice to any person being party to an agreement which--

(a) is a non-notifiable agreement, or

(b) has ceased to be a non-notifiable agreement by virtue of the Director entering or filing particulars of it under section 1(2)(b) above,

requiring him to furnish such documents or information in his possession or control as the Director considers expedient for the purposes of, or in connection with, the registration of the agreement. "

7 (1) Schedule 2 (furnishing of particulars of agreements) shall be amended as follows.

(2) In paragraph 1, for sub-paragraph (1) there shall be substituted--

" (1) Subject to paragraph 2 below, no duty to furnish particulars in respect of an agreement which is subject to registration shall be affected by any subsequent variation or determination of the agreement. "

(3) In paragraph 2, in sub-paragraph (1), for "an agreement becomes subject to registration after it is made" there shall be substituted ", after an agreement is made, it becomes an agreement in respect of which particulars fall to be furnished under section 24 above".

(4) In that paragraph, in sub-paragraph (2), after "section 24(1) above" there shall be inserted "(so far as applicable)".

(5) In that paragraph, in sub-paragraph (3), for "24" there shall be substituted "24(1)".

(6) In paragraph 5(1) after entry (c) in the Table there shall be inserted--

" (ca) Agreement which ceases to be a non-notifiable agreement.

Within 1 month from the day on which the agreement so ceases. "

Section 12.

SCHEDULE 4 Section 12: Sectoral Regulators and Transition

Sectoral regulators

1 The amendments of the [1980 c. 21.] Competition Act 1980 made by section 12(1) to (6) above, together with the consequential amendments of that Act made by paragraph 4(2) to (6) of Schedule 11 to this Act, shall have effect, not only in relation to the jurisdiction of the Director General of Fair Trading under the provisions amended, but also in relation to the jurisdiction under those provisions of each of the following--

(a) the Director General of Telecommunications,

(b) the Director General of Electricity Supply,

(d) the Director General of Water Services, and

(e) the Rail Regulator.

2 In each of the following, namely--

(a) section 50(4) of the [1984 c. 12.] Telecommunications Act 1984,

(b) section 43(4) of the [1989 c. 29.] Electricity Act 1989,

(d) section 67(4) of the [1993 c. 43.] Railways Act 1993,

(which make provision about the exercise of functions exercised concurrently by the Director General of Fair Trading and the sectoral regulator concerned) for "transferred by", in each place, there shall be substituted "mentioned in".

3 In each of the following, namely--

(a) section 50(6) of the Telecommunications Act 1984,

(b) section 43(6) of the Electricity Act 1989, and

(which provide for the Secretary of State or, in Northern Ireland, the Department of Economic Development to determine certain questions in connection with the jurisdictions of the sectoral regulators concerned) for "as to whether" there shall be substituted "in any particular case as to the jurisdiction of the Director under any of the provisions mentioned in" and the words "applies to any particular case" shall be omitted.

4 In section 67(8) of the Railways Act 1993 (corresponding provision in relation to the jurisdiction of the Rail Regulator) for "as to whether" there shall be substituted "in any particular case as to the jurisdiction of the Regulator under any of the provisions mentioned in" and the words "applies to any particular case" shall be omitted.

Transition

5 (1) Where, immediately before the relevant day, an investigation under section 3 of the [1980 c. 21.] Competition Act 1980 has commenced and is being proceeded with, that Act shall, so far as concerns--

(a) further proceeding with the investigation,

(b) publishing, after completion of the investigation, such a report as is mentioned in subsection (10) of that section, and

have effect as if this Act had not been passed.

(2) For the purposes of this paragraph, an investigation under section 3 of the Competition Act 1980 shall be taken to have commenced once the authority by whom it is to be carried out has performed the duties which subsection (2) of that section requires him to perform before carrying out the investigation.

6 Where, immediately before the relevant day, an investigation has been completed, but no such report as is mentioned in section 3(10) of the Competition Act 1980 has yet been published, that Act shall, so far as concerns--

(a) publishing such a report, and

(b) taking action in consequence of it,

have effect as if this Act had not been passed.

7 Where, immediately before the relevant day, the authority by whom an investigation under section 3 of the Competition Act 1980 has been carried out is considering what action to take in consequence of a report published under subsection (10) of that section, that Act shall, so far as concerns taking action in consequence of the report, have effect as if this Act had not been passed.

8 In paragraphs 5 to 7 above, "relevant day" means the day on which section 12 above comes into force.

Section 13(1).

SCHEDULE 5 Striking off of Non-trading Private Companies: Great Britain

[1985 c. 6.]

The Companies Act 1985 shall be amended as follows.

2 After section 652 there shall be inserted--

" 652A Registrar may strike private company off register on application

(1) On application by a private company, the registrar of companies may strike the company's name off the register.

(2) An application by a company under this section shall--

(a) be made on its behalf by its directors or by a majority of them,

(b) be in the prescribed form, and

(3) The registrar shall not strike a company off under this section until after the expiration of 3 months from the publication by him in the Gazette of a notice--

(a) stating that he may exercise his power under this section in relation to the company, and

(b) inviting any person to show cause why he should not do so.

(4) Where the registrar strikes a company off under this section, he shall publish notice of that fact in the Gazette.

(5) On the publication in the Gazette of a notice under subsection (4), the company to which the notice relates is dissolved.

(6) However, the liability (if any) of every director, managing officer and member of the company continues and may be enforced as if the company had not been dissolved.

(7) Nothing in this section affects the power of the court to wind up a company the name of which has been struck off the register.

652B Duties in connection with making application under section 652A

(1) A person shall not make an application under section 652A on behalf of a company if, at any time in the previous 3 months, the company has--

(a) changed its name,

(b) traded or otherwise carried on business,

(c) made a disposal for value of property or rights which, immediately before ceasing to trade or otherwise carry on business, it held for the purpose of disposal for gain in the normal course of trading or otherwise carrying on business, or

(d) engaged in any other activity, except one which is--

(i) necessary or expedient for the purpose of making an application under section 652A, or deciding whether to do so,

(ii) necessary or expedient for the purpose of concluding the affairs of the company,

(iii) necessary or expedient for the purpose of complying with any statutory requirement, or

(iv) specified by the Secretary of State by order for the purposes of this sub-paragraph.

(2) For the purposes of subsection (1), a company shall not be treated as trading or otherwise carrying on business by virtue only of the fact that it makes a payment in respect of a liability incurred in the course of trading or otherwise carrying on business.

(3) A person shall not make an application under section 652A on behalf of a company at a time when any of the following is the case--

(a) an application has been made to the court under section 425 on behalf of the company for the sanctioning of a compromise or arrangement and the matter has not been finally concluded;

(b) a voluntary arrangement in relation to the company has been proposed under Part I of the [1986 c. 45.] Insolvency Act 1986 and the matter has not been finally concluded;

(c) an administration order in relation to the company is in force under Part II of that Act or a petition for such an order has been presented and not finally dealt with or withdrawn;

(d) the company is being wound up under Part IV of that Act, whether voluntarily or by the court, or a petition under that Part for the winding up of the company by the court has been presented and not finally dealt with or withdrawn;

(e) there is a receiver or manager of the company's property;

(f) the company's estate is being administered by a judicial factor.

(4) For the purposes of subsection (3)(a), the matter is finally concluded if--

(a) the application has been withdrawn,

(b) the application has been finally dealt with without a compromise or arrangement being sanctioned by the court, or

(c) a compromise or arrangement has been sanctioned by the court and has, together with anything required to be done under any provision made in relation to the matter by order of the court, been fully carried out.

(5) For the purposes of subsection (3)(b), the matter is finally concluded if--

(a) no meetings are to be summoned under section 3 of the [1986 c. 45.] Insolvency Act 1986,

(b) meetings summoned under that section fail to approve the arrangement with no, or the same, modifications,

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