Clause 91 - Enforcement notification for contravention
Communications Bill
10:45 am
Mr John Whittingdale (Maldon and East Chelmsford, Conservative)
I beg to move amendment No. 236, in
clause 91, page 86, line 14, leave out subsections (1) and (2) and insert—
'(1) If, after following the procedure in section 90, OFCOM then proposes to give the notified provider an enforcement notification, it shall first—
(a) give written notice of its proposed action stating the matters to which they have taken objection, the action they propose and their reasons for it;
(b) inform the notified provider that any oral or written representations made to OFCOM within the period specified in the notice will be considered, and give the notified provider a reasonable opportunity to make such representations; and
(c) subject to subsection (2), if so requested by the notified provider, give the notified provider or its authorised representatives an opportunity to inspect the documents in OFCOM's file relating to the proposed decision.
(2) OFCOM may give the notified provider an enforcement notification if the notified provider—
(a) is or has been in contravention, in any of the respects notified, of a condition specified in the notification under section 90;
(b) has not taken the necessary steps to remedy the contravention; and
(c) has received a notice under subsection (1) and been afforded the opportunities to make representations and to access OFCOM's file as set out in that subsection.'.
The Minister will appreciate that the penalties possible under the Bill are fairly substantial. Therefore, when dealing with a possible imposition of a fine amounting to anything up to 10 per cent. of turnover, it is only right that we should have proper safeguards, and give an opportunity to the company faced with that penalty to make its case.
Under the clause, the procedure for enforcement of notification of contraventions is in two stages. A company is given notification that a contravention has occurred. If that is not put right after a certain time, there is enforcement. That is a shortened form of the procedure that takes place under the Competition Act 1998. Under that Act there is a three-stage process before a fine is levied. First, there is notification that a contravention has occurred. There is then a statement of objections, after which comes the enforcement notice. The statement of objections is quite important because that sets out why Ofcom believes that the company is in breach of the conditions. It also allows the company access to the evidence on which Ofcom will base its decision.
It is natural justice that, if a company is to be faced with such a draconian penalty, it should have an opportunity to see the evidence that has led Ofcom to reach its decision, and to make representations to Ofcom against it. It would seem strange if the process for the imposition of penalties under the Bill were different from the process laid down in the 1998 Act. The amendment would bring the process into line with that of the 1998 Act by inserting an additional safeguard, which would allow the company to see why it was faced with a huge penalty, and to make representations against that.