Enterprise Act 2002

Broadcasting Act 1990 (c. 42)

24(1)The Broadcasting Act 1990 is amended as follows.

(2)In section 2 (regulation by Commission of provision of television services), in subsection (3)—

(a)for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”;

(b)for “any of his or their” there is substituted “any of their”.

(3)In section 39 (networking arrangements between holders of regional Channel 3 licences)—

(a)in subsection (2), for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”;

(b)in subsection (3)—

(i)for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”;

(ii)for “he” there is substituted “it”;

(c)in subsection (12)—

(i)for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”;

(ii)for “him” there is substituted “it”.

(4)In section 85 (licensing functions of Authority), in subsection (4)—

(a)for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”;

(b)for “any of his or their” there is substituted “any of their”.

(5)In section 186 (duty of BBC to include independent productions in their television services)—

(a)in subsection (3)—

(i)for “The Director General of Fair Trading (“the Director”)” there is substituted “The Office of Fair Trading (“the OFT”)”;

(ii)for “his” there is substituted “its”;

(b)in subsection (4)—

(i)for “the Director” there is substituted “the OFT”;

(ii)for “his” (in each place) there is substituted “its”;

(iii)for “him” there is substituted “it”;

(c)in subsection (5), for “Director” (in both places) there is substituted “OFT”;

(d)in subsection (6)—

(i)for “Director” (in each place) there is substituted “OFT”;

(ii)for “him” there is substituted “it”;

(iii)for “he” (in each place) there is substituted “it”;

(e)in subsections (7) and (8), for “the Director” there is substituted “the OFT”.

(6)In section 187 (information to be furnished by BBC for purposes of reports under section 186)—

(a)in subsection (1)—

(i)for “Director” there is substituted “Office of Fair Trading”;

(ii)for “him” (in both places) there is substituted “it”;

(iii)for “he” there is substituted “it”;

(b)subsection (3) shall cease to have effect.

(7)In section 194A (relevant agreements)—

(a)for “Director” (in each place) there is substituted “OFT”;

(b)in subsection (7)(a)—

(i)for “he” there is substituted “it”;

(ii)for “his” there is substituted “its”;

(c)in subsection (8), for “he” (in both places) there is substituted “it”;

(d)in subsection (9)—

(i)the definition of “Director” shall cease to have effect; and

(ii)after the definition of “Chapter III powers” there is inserted—

““OFT” means the Office of Fair Trading;”.

(8)In section 197 (restriction on disclosure of information)—

(a)in subsection (2)(a)(ii)—

(i)for “the Director General of Fair Trading” there is substituted “the Office of Fair Trading”;

(ii)after “the Competition Act 1998” there is inserted “, the Enterprise Act 2002”;

(b)in subsection (2)(c), after “the Competition Act 1998” there is inserted “, the Enterprise Act 2002”.

(9)In Schedule 4 (references with respect to networking arrangements)—

(a)in paragraph 1—

(i)for “the Director General of Fair Trading (“the Director”)” there is substituted “the Office of Fair Trading (“the OFT”)”;

(ii)for “Director” (in each place), “he” (in each place), “his” (in each place) and “Director's” there is substituted “OFT”, “it”, “its” and “OFT's” respectively;

and in the cross-heading before that paragraph, for “Director” there is substituted “OFT”;

(b)in paragraph 2, in sub-paragraph (3), for “Director” there is substituted “OFT”;

(c)in paragraph 3, for “Director's” (in both places) and “Director” there is substituted “OFT's” and “OFT” respectively, and, in the cross-heading before that paragraph, for “Director's” there is substituted “OFT's”;

(d)in paragraph 4—

(i)for “Director's” (in both places), “Director”, “him” and “he” there is substituted “OFT's”, “OFT”, “it” and “it” respectively;

(ii)sub-paragraphs (7) and (7A) shall cease to have effect;

(e)after paragraph 4 there is inserted—

“Further provision about references under paragraph 4

4A(1)The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in sub-paragraphs (2) and (3), for the purposes of references under paragraph 4 as they apply for the purposes of references under that Part—

(a)section 109 (attendance of witnesses and production of documents etc.);

(b)section 110 (enforcement of powers under section 109: general);

(c)section 111 (penalties);

(d)section 112 (penalties: main procedural requirements);

(e)section 113 (payments and interest by instalments);

(f)section 114 (appeals in relation to penalties);

(g)section 115 (recovery of penalties); and

(h)section 116 (statement of policy).

(2)Section 110 shall, in its application by virtue of sub-paragraph (1), have effect as if—

(a)subsection (2) were omitted; and

(b)in subsection (9) the words from “or section” to “section 65(3))” were omitted.

(3)Section 111(5)(b)(ii) shall, in its application by virtue of sub-paragraph (1), have effect as if—

(a)for the words “published (or, in the case of a report under section 50 or 65, given)” there were substituted “made”;

(b)for the words “published (or given)”, in both places where they appear, there were substituted “made”; and

(c)the words “by this Part” were omitted.

(4)Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 109 to 116 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of sub-paragraph (1), have effect in relation to those sections as applied by virtue of that sub-paragraph.

(5)Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that sub-paragraph.”;

(f)in paragraph 5—

(i)for “Director” (in each place) there is substituted “OFT”;

(ii)sub-paragraph (5) shall cease to have effect;

(iii)after sub-paragraph (5) there is inserted—

“(5A)For the purposes of paragraph 6, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

(5B)If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under paragraph 4 as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.

(5C)For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under paragraph 4.

(5D)In making any report on a reference under paragraph 4 the Competition Commission must have regard to the following considerations before disclosing any information.

(5E)The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest.

(5F)The second consideration is the need to exclude from disclosure (so far as practicable)—

(a)commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b)information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual’s interests.

(5G)The third consideration is the extent to which the disclosure of the information mentioned in sub-paragraph (5F)(a) or (b) is necessary for the purposes of the report.”;

(g)in paragraph 6, for “Director” (in each place) there is substituted “OFT”;

(h)in paragraph 7, for “Director” (in each place), “he” (in each place) and “him” there is substituted “OFT”, “it” and “it” respectively, and, in the cross-heading before that paragraph, for “Director” there is substituted “OFT”;

(i)in paragraph 8—

(i)for “Director” (in each place) there is substituted “OFT”;

(ii)in sub-paragraph (1)(b), for “him” there is substituted “the OFT” and for “he” there is substituted “it”;

(iii)sub-paragraphs (3) and (4) shall cease to have effect;

(j)after paragraph 8 there is inserted—

“Enforcement

8A(1)The court may, on an application by the OFT, enquire into whether any person (“the defaulter”) has refused or otherwise failed, without reasonable excuse, to comply with a notice under paragraph 8(1).

(2)An application under sub-paragraph (1) shall include details of the possible failure which the OFT considers has occurred.

(3)In enquiring into a case under sub-paragraph (1), the court shall hear any witness who may be produced against or on behalf of the defaulter and any statement which may be offered in defence.

(4)Sub-paragraphs (5) and (6) apply where the court is satisfied, after hearing any witnesses and statements as mentioned in sub-paragraph (3), that the defaulter has refused or otherwise failed, without reasonable excuse, to comply with the notice under paragraph 8(1).

(5)The court may punish the defaulter as it would have been able to punish him had he been guilty of contempt of court.

(6)Where the defaulter is a body corporate, the court may punish any director or officer of the defaulter as it would have been able to punish that director or officer had the director or officer been guilty of contempt of court.

(7)In this section “the court”—

(a)in relation to England and Wales or Northern Ireland, means the High Court, and

(b)in relation to Scotland, means the Court of Session.

8B(1)A person commits an offence if he intentionally alters, suppresses or destroys a document which he has been required to produce by a notice under paragraph 8(1).

(2)A person who commits an offence under sub-paragraph (1) shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

False or misleading information

8C(1)A person commits an offence if—

(a)he supplies any information to the OFT or the Competition Commission in connection with any of their functions under this Schedule;

(b)the information is false or misleading in a material respect; and

(c)he knows that it is false or misleading in a material respect or is reckless as to whether it is false or misleading in a material respect.

(2)A person commits an offence if he—

(a)supplies any information to another person which he knows to be false or misleading in a material respect; or

(b)recklessly supplies any information to another person which is false or misleading in a material respect;

knowing that the information is to be used for the purpose of supplying information to the OFT or the Competition Commission in connection with any of their functions under this Schedule.

(3)A person who commits an offence under sub-paragraph (1) or (2) shall be liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(4)This paragraph shall not have effect in relation to the supplying of information to the Competition Commission in connection with its functions under any provision of the Enterprise Act 2002 as applied by virtue of paragraph 4A.”;

(k)in paragraph 9, for “Director” and “his” (in each place) there is substituted “OFT” and “its” respectively, and, in the cross-heading before that paragraph, for “Director” there is substituted “OFT”;

(l)in paragraph 10—

(i)the definition of “the Director” shall cease to have effect;

(ii)after the definition of “the ITC” there is inserted—

““the OFT” means the Office of Fair Trading.”