HC Deb 10 May 2000 vol 349 cc946-7

5. If at any time the Director considers that the exercise or proposed exercise of a function to which this Schedule applies may not meet the competition test, he may conduct an investigation.

6.—(1) For the purposes of an investigation under paragraph 5 the Director may require any person—

  1. (a) to produce to him or to a person appointed by him, at a specified time and place, any specified document, or
  2. (b) to provide him or such a person, at such a time and place, any specified information,
which he considers relates to any matter relevant to the investigation.

(2) The power conferred by sub-paragraph (1) is to be exercised by a notice in writing indicating the subject matter and purpose of the investigation; and in this paragraph "specified" means—

  1. (a) specified, or described, in the notice, or
  2. (b) falling within a category which is specified, or described, in the notice.

(3) Information required to be provided sub-paragraph (1) shall be provided in the specified manner and form.

(4) The power conferred by sub-paragraph (1) to require a person to produce a document includes power—

  1. (a) to require him to provide an explanation of the document, or
  2. (b) if the document is not produced, to require him to state, to the best of his knowledge and belief, where it is.

(5) In this paragraph "information" includes estimates and forecasts.

7.—(1) If a person refuses or fails to comply with a notice under paragraph 6, the Director may certify that fact in writing to the High Court which may enquire into the case.

(2) If after hearing—

  1. (a) any witness who may be produced against or on behalf of the person, and
  2. (b) any statement which may be offered in defence,
the High Court is satisfied that the person did not have a reasonable excuse for refusing or failing to comply with the notice, the High Court may punish him as if he had been guilty of contempt of court.

8.—(1) A person shall not be required under paragraph 6 to produce or disclose a privileged communication.

(2) In sub-paragraph (1) "privileged communication" means a communication—

  1. (a) between a professional legal adviser and his client, or
  2. (b) made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings,
which in proceedings in the High Court would be protected from disclosure on grounds of legal professional privilege.

9.—(1) No information which—

  1. (a) has been obtained under paragraph 6, and
  2. (b) relates to the affairs of any individual or to any particular business,
is to be disclosed during the lifetime of that individual or while that business continues to be carried on, unless the condition mentioned in sub-paragraph (2) is satisfied.

(2) The condition is that consent to the disclosure has been obtained from—

  1. (a) the person from whom the information was obtained under paragraph 6, and
  2. (b) if different, the individual to whose affairs the information relates or the person for the time being carrying on the business to which the information relates.

(3) Sub-paragraph (1) does not apply to a disclosure of information—

  1. (a) made for the purpose of facilitating the performance of any function of the Director, a traffic commissioner or the Rail Regulator,
  2. (b) made for the purpose of facilitating the performance of any function of the European Commission in respect of Community law about competition,
  3. (c) made for the purpose of criminal proceedings in any part of the United Kingdom or in connection with the investigation of a criminal offence triable in any part of the United Kingdom, or
  4. (d) made in compliance with the order of a court or tribunal.

(4) If information is disclosed to the public in circumstances in which the disclosure does not contravene sub-paragraph (1), that sub-paragraph does not prevent its further disclosure by any person.

(5) A person who contravenes this paragraph is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

10. Before the Director, as the result of an investigation under paragraph 5, makes a decision that the exercise or proposed exercise of a function does not meet the competition test, he must—

  1. (a) give written notice to the person or persons likely to be affected by the proposed decision, and
  2. (b) give that person or those persons an opportunity to make representations.

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