Schedule 6: Regulatory appeals etc: minor and consequential amendments
Summary and Background
216.This Schedule relates to the CC’s current regulatory appeals and reference functions under sector specific legislation (e.g. gas, water, rail) and to the OFT’s and CC’s current ancillary competition functions under other legislation. It provides for the transfer of these functions, not substantially changed, from the CC and the OFT to the CMA.
217.Under current legislation, the CC receives broadly seven types of reference of regulatory matters from these regulators. These are:
licence modification references and appeals (for gas, electricity, health, water and sewerage, rail, air traffic and airport operation services);
references of non-licensable activities in the gas and electricity sectors and on a levy on health providers;
energy code appeals;
price control references, in the energy, health, water and communications sectors;
price control appeals in postal services;
airport charges, conduct and licence condition references; and
access charges references in the railways sector.
218.In each of these, the issues that the CC must take into consideration in carrying out its inquiry are adapted according to the particular regulatory regime and usually reflect the considerations to which the relevant regulator is required to have regard in reaching the decision that is subject to the reference or appeal.
219.The CC and/or the OFT also have ancillary functions under other legislation (the Legal Services Act 2007, the Legal Services (Scotland) Act 2010, the Financial Services and Market Act 2000, the Payment Services Regulations 2009, the Competition Act 1980 and the Transport Act 2000), including with regards to local bus schemes or agreements.
220.The current statutory provisions affected by this Schedule are:
| Licence modification references/appeals | |
|---|---|
| Gas | Gas Act 1986 |
| Gas (Northern Ireland) Order 1996 | |
| Energy (Northern Ireland) Order 2003 | |
| Electricity | Electricity Act 1989 |
| Electricity (Northern Ireland) Order 1992 | |
| Energy (Northern Ireland) Order 2003 | |
| Water and sewerage | Water Industry Act 1991 |
| Water and Sewerage Services (Northern Ireland) Order 2006 | |
| Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 | |
| Rail | Railways Act 1993 |
| Air traffic services | Transport Act 2000 |
| Airport operation services | Civil Aviation Act 2012 |
| Health | Health and Social Care Act 2012 |
| Non-licensable activities | |
| Gas | Gas Act 1986 |
| Electricity | Electricity Act 1989 |
| Energy code appeals | Energy Act 2004 (read with the Electricity and Gas Appeals (Designation and Exclusion) Order 2005, and the Electricity and Gas Appeals (Designation and Exclusion) Order 2009) |
| Price control references | |
| Water | Water Industry Act 1991 |
| Water and Sewerage Services (Northern Ireland) Order 2006 | |
| Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 | |
| Electronic communications | Communications Act 2003 |
| Postal services price control | Postal Services Act 2011 |
| Health | Health and Social Care Act 2012 |
| Levy on providers reference | |
| Health | Health and Social Care Act 2012 |
| Railway access charges | |
| Rail | Railways Act 1993 |
| Other related minor amendments | |
| Gas and Electricity | Utilities Act 2000 |
| Ancillary Competition Functions | |
| Legal Services | Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, Legal Services Act 2007, Legal Services (Scotland) Act 2010, the Solicitors (Scotland) Act 1980 |
| Transport | Transport Act 2000 |
| Public bodies and transport | Competition Act 1980 |
221.The Schedule makes consequential amendments to the sectoral legislation to accommodate the bringing together of the OFT and CC into a single body. In particular, where the CMA decides on references or appeals currently decided by the CC, a group appointed by the CMA’s chair – in other words, an independent decision making group – rather than the CMA Board will make these decisions. This is to ensure that these functions are carried out by groups with sufficient expertise and which are independent of the CMA’s executive, any overriding duties of the CMA and the CMA’s relationship with regulators under their concurrent anti-trust and market investigation referral powers. Further explanation of the CMA’s governance structure can be found in the Explanatory Notes on Schedule 4.
222.Where a function under certain sectoral enactments is currently exercisable by the chair of the CC before a group has been constituted, that function will now be exercisable by any member of the CMA Board who is also a member of the CMA panel or any member of the CMA panel authorised by the Secretary of State to exercise that function. For example, with respect to gas licence modification appeals, the definition of ‘authorised member of the Competition Commission’ in paragraph 13(1) of Schedule 4A to the Gas Act 1986 is amended to effect this change. Unlike the chair of the CC, the chair of the CMA will not be authorised, prior to a group being constituted, to decide on whether permission should be given to hear an appeal. Similar provision is made in respect of the power to issue notices regarding written documents or oral hearings in respect of certain sectoral appeals and references. Schedule 6 sets out the specific variations that apply to each type of regulatory appeal or reference.
223.The Schedule also makes analogous amendments to those Acts under which the CC and OFT currently have ancillary competition functions. Amendments to the Payment Services Regulations 2009 will be made through secondary legislation.
