Board Rules of Procedure

Question 1

Interpretation

Accepted Answer

‘the Act’

means the Enterprise and Regulatory Reform Act 2013;

‘the Board’

means the Chair and Board Members appointed under paragraph 1, Schedule 4 of the Act;

‘Board Member’

means a member of the CMA appointed by the Secretary of State under paragraph 1(1)(b)(i), (iii) or (iv), Schedule 4 of the Act

‘Board Secretary’

means the employee of the CMA who is appointed from time to time to act as secretary to the Board

‘Chair’

means a person appointed to hold the office of Chair by the Secretary of State under paragraph 1(1)(a), Schedule 4 of the Act

‘Chief Executive’

means the person appointed to hold the office of Chief Executive by the Secretary of State under paragraph 9(1), Schedule 4 of the Act

‘Chief Operating Officer’

means the Executive Director appointed to hold the office of chief operating officer

‘clear days’

in relation to a period of notice means a period excluding the day on which the notice is given and the day for which it is given or on which it is to take effect

‘the CMA’

means the Competition and Markets Authority

‘CMA Panel’

means a panel of persons appointed by the Secretary of State under paragraph 1(1)(b)(ii) or (iii), Schedule 4 of the Act and available for selection as members of a group constituted in accordance with Part 3, Schedule 4 of the Act

‘Executive Director

means a Board Member of the CMA who is also an employee of the CMA

‘Non-executive Director’

means a Board Member of the CMA other than Executive Directors

‘OIM Panel Chair’

means a member of the CMA appointed by the Secretary of State to chair the Office for the Internal Market panel and to membership of the CMA Board under paragraph 1(1)(b)(iv), Schedule 4 of the Act

‘ordinary resolution’

means a resolution that is passed by a simple majority of such Board Members and the Chair in attendance as are entitled to vote on that resolution

‘the Principal Accounting Officer’

means a person appointed by HM Treasury as accounting officer pursuant to s.5(6) of the Government Resources and Accounts Act 2000^{[footnote 3]}

‘Replacement Chair’

means the Non-executive Director who is appointed in accordance with paragraph 18 of these Rules to chair all or part of a Board meeting at which the Chair is absent or has declared a relevant conflict of interest in relation to any matter

‘Senior Independent Director’

means the Non-executive Director who is appointed in accordance with paragraph 52 of these Rules

Question 2

The Board

Accepted Answer

3 . The Board consists of the Chair and at least five Board Members, at least one of whom must also be a member of the CMA Panel. Of the members of the CMA Panel appointed to the Board, one shall be the designated chair of the CMA Panel.^{[footnote 4]}

4 . The Board is responsible for:

establishing the overall strategic direction of the CMA within the statutory framework laid down under the Act, setting organisational priorities and scrutinising the CMA’s performance in meeting its goals
ensuring that the CMA’s independence is maintained and that the CMA’s reputation for independence and impartiality is protected
ensuring that the CMA fulfils its statutory duties and functions, and acts within the limits of its statutory authority
overseeing the use of public funds (including considering the opinions and reports of the Principal Accounting Officer) and ensuring that public funds are used appropriately
establishing a framework of prudent and effective controls, which enable risk to be assessed and managed
ensuring that staff policies and practices are consistent with the CMA’s values and, in particular, with promoting a working environment where harassment, bullying or other inappropriate or discriminatory behaviour is not tolerated
demonstrating high standards of corporate governance, in line with the Corporate Governance in Central Government Departments Code of Good Practice, and by using an Audit and Risk Assurance Committee to help the Board address key financial and other risks

5 . In particular, the Board is responsible for:

proposals for the annual plan and consultation on these proposals made under paragraph 13, Schedule 4 of the Act;
the annual plan made under paragraph 12, Schedule 4 of the Act;
the annual report made under paragraph 14, Schedule 4 of the Act;
the concurrency report made under paragraph 16, Schedule 4 of the Act;
making rules of procedure for merger reference groups, market reference groups, and special reference groups, as defined in paragraph 51, Schedule 4 of the Act.

6 . The Chair, with the support of the Senior Independent Director (SID), will ensure a review of the effectiveness of the Board and its committees is carried out annually, with independent input at least once every three years.

7 . The Board will review these Rules every two years.

Matters reserved for Board involvement

8 . The matters listed in Annex A are reserved for the involvement of the Board.

9 . The list of matters reserved for Board involvement does not preclude other matters or decisions being reserved by the Board or, in the case of matters that have been delegated by the Board, being referred to the Board.

Question 3

Board meetings

Accepted Answer

Arranging meetings

10 . The Board shall meet at least six times a year and at such other times as necessary.

11 . A meeting may be called by the Chair; or by the SID and the Chief Executive; or by any two Non-executive Directors.

12 . Subject to paragraph 13, not less than fourteen clear days’ notice of a meeting will be provided to Board Members and the Chair.

13 . A meeting may exceptionally be called on less than fourteen clear days’ notice. Such shorter notice will be effective only if ratified either by the Chair or jointly by the Chief Executive and SID.^{[footnote 5]}

14 . Notice of a meeting shall be communicated in writing including by email. Such notice shall contain details of the meeting and of the business to be conducted at the meeting.

15 . Failure of a Board Member or the Chair to receive notice of a meeting shall not invalidate that meeting or any business conducted at it.

16 . Meetings may take place at the CMA’s administrative offices or at any other convenient location, and may include virtual attendance (in accordance with paragraph 21 of these Rules). Any employee of the CMA or any other person may be invited to attend all or part of a Board meeting. Any confidential information (as referred to in paragraph 23) must not be shared with any person from outside of the CMA who attends a meeting.

Procedure at meetings

17 . The quorum for a meeting of the Board shall be: four Non-executive Directors (which may include: a Board Member who is also a member of the CMA Panel; the OIM Panel Chair; and, for the purposes of this paragraph, the Chair); two Executive Directors; and must include either the Chair or the Chief Executive. Neither the Chair nor a Board Member will be counted towards quorum for an item in respect of which they have declared a relevant conflict of interest.

18 . In the absence of the Chair at any meeting, the SID appointed under paragraph 52 below shall be the Replacement Chair for that meeting. In the absence of both the Chair and the SID at any meeting, those Non-executive Directors present will appoint a Non-executive Director as Replacement Chair for that meeting but such appointment cannot be of a Board Member who has also been appointed to the CMA Panel or of the OIM Panel Chair.

19 . Where decisions are made by the Board, they shall be made by ordinary resolution. In the case of equal votes the Chair, or the Replacement Chair, shall have a second or casting vote.

20 . The Board will take collective responsibility for any decision made by it and will seek to achieve unanimity in decisions. Where Board Members have concerns that cannot be resolved in relation to a particular matter or a proposed action, they should ensure that these concerns are recorded.

21 . Participation will usually be in person. However, unless the Chair has requested ‘in person’ attendance, Board Members may also participate by telephone, video or web conferencing facility and will be deemed to be present and constitute part of the Board for that meeting. Any Board Member who leaves a meeting prior to the conclusion of a meeting shall be taken to be a non-participating Board Member for the purpose of any decision taken by the Board during that person’s absence. All attendances and absences by the Chair or by Board Members for all or part of a Board meeting will be recorded in the minutes of the meeting.

22 . Any resolution capable of being passed by the Board at a meeting may instead be passed by written resolution. A response received by email will be effective. Any such written resolution shall be deemed passed when it has been authorised by the last of the Board Members approving the resolution, provided that a simple majority of Board Members entitled to vote on the resolution authorises it and provided that those Members entitled to vote on the resolution satisfy the quorum requirement in paragraph 17.

Minutes of meetings

23 . Minutes of Board meetings shall be published on the CMA website and will not contain any confidential information. Examples of confidential information may include: information the disclosure of which is prohibited or restricted by a provision of any enactment; information that is otherwise subject to a duty of confidentiality; information which is subject to legal professional privilege; market-sensitive information; information the publication of which could hinder the performance of the functions of the CMA; and information about individuals such as employees of the CMA.

Question 4

Delegation of functions

Accepted Answer

CMA Panel chair

24 . The Board may consent to the performance of those functions of the Chair listed in paragraph 48(4), Schedule 4 of the Act by a person who is appointed both to the Board and to the CMA Panel^{[footnote 6]} or by a member of the CMA Panel who is designated for this purpose by the Secretary of State.

CMA committees and sub-committees

25 . Save in respect of functions of the CMA which are to be carried out on behalf of the CMA by a CMA group,^{[footnote 7]} the Board may authorise any committee or sub-committee to perform anything authorised or required to be done by the CMA, subject to certain restrictions.^{[footnote 8]} The Board shall receive regular reports from committees or sub-committees it has established as it shall direct.

26 . The members of a committee or sub-committee of the CMA may include persons who are not Board Members provided that, if it is authorised to perform functions delegated to it by the Board, they are employees of the CMA or are a member of the CMA Panel. A sub-committee may include persons who are not members of the committee which established it.

27 . There shall be an Audit and Risk Assurance Committee (ARAC) established by the Board. Membership of ARAC and its terms of reference are set out in Annex B to these Rules.

28 . There shall be a Remuneration Committee established by the Board. Membership of the Remuneration Committee and its terms of reference are set out in Annex C to these Rules.

29 . There shall be a Nominations Committee established by the Board. Membership of the Nominations Committee and its terms of reference are set out in Annex D to these Rules.

Authorisation of individual Board Members and staff of the CMA

30 . Save in respect of functions which the Board has reserved to itself or which it has authorised committees or sub-committees to exercise, the Board may authorise at any time any Board Member of the CMA or CMA staff member to perform anything authorised or required to be done by the CMA , subject to certain restrictions.^{[footnote 9]}

31 . Annex E sets out the Board authorisations of staff, CMA Panel Chair and designated CMA Panel Members , including in relation to the merger, market, competition, litigation and criminal enforcement functions of the CMA.

Obligations of Board and Committee members

32 . The Chair, Board Members and members of committees and sub-committees must, in carrying out their respective responsibilities, comply with the Civil Service Code^{[footnote 10]} and the Cabinet Office Code of Conduct for Board Members of Public Bodies^{[footnote 11]} ; have regard to the principles of public life^{[footnote 12]} : selflessness, integrity, objectivity, accountability, openness, honesty and leadership; and act at all times in the best interests of the CMA.

33 . The Chair, Board Members and members of the committees and sub-committees are also required to comply with the CMA’s Respect agenda by ensuring that they:

treat everyone with respect and ensure the workplace is free of bullying and harassment;
encourage and enable colleagues to do their best; acknowledge and value diversity; and listen to different views with courtesy;
give and receive honest, objective and supportive feedback in a mutually respectful way, with a genuine intention to assist each other’s development; and
take seriously concerns about inappropriate behaviour reported to them and ensure appropriate action is taken as a result of issues being raised.

34 . Board Members and committee members shall have access to the CMA’s governance, compliance and risk function which is responsible for providing advice to the Board and committee members to ensure compliance with, and adherence to: these Rules; the CMA framework agreement with BEIS; and other relevant guidance from government departments (including the Cabinet Office Code of Conduct and the Civil Service Code).

Conflicts of interest

35 . The Chair and Board Members shall be subject to the procedures and guidelines for dealing with conflicts of interest set out in the CMA’s Conflicts of Interest policy at Annex F to these Rules.

Transparency

36 . The CMA is publicly committed to openness and transparency in relation to the conduct of its affairs and is subject to the provisions of the Freedom of Information Act 2000 (FoIA) and data protection legislation. The Chair, Board Members and members of committees and sub-committees shall act in accordance with the guidelines and policies relating to these matters issued or adopted by the CMA from time to time.

Confidentiality

37 . The Chair and Board Members shall be subject to a general duty of confidentiality in relation to the conduct of the affairs of the CMA and information they obtain in the course of their work for it. This duty includes complying with relevant statutory restrictions on disclosure^{[footnote 13]} and maintaining confidentiality of information where it is subject to legal professional privilege. This duty is personal and shall be without prejudice to the commitment of the Board and the CMA as a whole to transparency and compliance with the FoIA and data protection legislation.

Concerns about propriety

38 . Board Members should raise any concerns that they have about the propriety of the Board, any Board Member or the Chief Executive confidentially with the Chair.

39 . Board Members should raise any concerns that they have about the propriety of the Chair confidentially with the SID appointed under paragraph 52 below.

Resolving and recording concerns or disputes between Board Members

40 . Where concerns about propriety or other significant issues or disputes arise between Board Members which affect the stability of the Board, the issue should be raised with the Chair (if the issue does not involve the Chair) or the SID (if the issue involves the Chair but does not involve the SID). If the issue involves both the Chair and the SID, the Chief Executive will nominate a Non-executive Director with whom to raise the issue.

41 . That person with whom the issue is raised will investigate (with assistance, if required, from the Chief Operating Officer) and facilitate the resolution of the issue. This process will be carried out in consultation with other Board Members unless, exceptionally, it would be inappropriate to do so. A record of the nature of the issue and the steps taken to resolve it should be recorded by the Compliance Officer on a strictly confidential basis.

42 . Where all reasonable channels have been exhausted and the resolution process is unsuccessful, the issue should be raised (by the person who has conducted the investigation) with the Director General of Market Frameworks at the Department for Business, Energy and Industrial Strategy (BEIS).

43 . Where underlying allegations to an issue are considered by the person investigating to be particularly urgent or serious, that person may choose to escalate the issue directly with the Director General of Market Frameworks at BEIS.

44 . Details of any dispute or issue, together the steps taken to resolve it, will be included in the report sent to BEIS as part of the annual appraisal process in respect of the Chair and Non-executive Directors (see paragraphs 55-57 below).

Question 5

Roles and responsibilities of the Chair, Chief Executive, Non-executive Directors

Accepted Answer

The Chair

45 . The Chair’s role and responsibilities are set out in: the appointment letter; the legislation; the CMA Framework Agreement with BEIS; and these Rules. A summary of the Chair’s role and responsibilities is set out in Annex G.

The Chief Executive

46 . The Chief Executive’s role and responsibilities are set out in: the appointment letter; the legislation; the CMA Framework Agreement with BEIS; and these Rules. A summary of the Chief Executive’s role and responsibilities is set out in Annex G.

47 . The roles of Chair and Chief Executive are distinct. The focus of the Chair’s role is, in general terms, providing effective leadership at Board level, and determining the strategic direction for the CMA. By contrast, the focus of the Chief Executive’s role is, in general terms, leading the CMA, as a whole organisation, in implementing the Board’s strategy and discharging the function of the CMA’s Principal Accounting Officer (as designated by HM Treasury).

48 . The Chair and Chief Executive will discuss all major issues and emerging policies through frequent (and normally informal) meetings and will specifically discuss any contentious matters or those likely to set significant precedent.

Non-executive Directors

49 . The responsibilities of Non-executive Directors are set out in their appointment letter and a summary of those is set out in Annex G.

50 . In consultation with the Chair and the SID, Non-executive Directors may take the lead on some of the Board’s activities, for example performing the role of chair of non-executive committees such as ARAC.

51 . Non-executive Directors, other than the Chair, should meet by themselves at least once a year.

Senior Independent Director

52 . In consultation with the Non-executive Directors, the Chair shall appoint a SID, who must be a Non-executive Director appointed to the Board under paragraph 1(1)(b)(i), Schedule 4 of the Act, and therefore cannot be a member of both the Board and the CMA Panel and cannot be the OIM Panel Chair.

53 . The SID is, in general terms, responsible for providing a sounding board for the Chair and for serving as an intermediary between the Chair and the other Board Members, when necessary.

54 . The SID’s role and responsibilities are set out in the appointment letter and a summary of those is set out in Annex G.

Chair and Board Member evaluation process

55 . The Chair’s performance will be formally assessed on an annual basis by the Director General of Market Frameworks at BEIS, in consultation with the Board . The SID will lead on the consultation on behalf of other Board Members, ensuring all Board Members have an opportunity to feed into the process.

56 . An appraisal of the performance of the Non-executive Directors will be conducted annually, led by the Chair, using an appropriate feedback process. Reports will be made to the Director General of Market Frameworks at BEIS.

57 . Evaluations of the performance of individual Board Members should show whether each continues to contribute effectively and to demonstrate commitment to the role (including commitment of time for Board and committee meetings and other duties).

Question 6

Version Control

Accepted Answer

58 . These Rules were last updated in February 2022.

Section 25 and paragraph 8, Schedule 4 of the Act. ↩
These Rules of Procedure were made by the Board on 1 April 2021 under the power in paragraph 31(1), Schedule 4 of the Act ↩
For the avoidance of doubt, as the Principal Accounting Officer for the CMA, the Chief Executive is also charged with meeting the responsibilities of the Accounting Officer as described in Chapter 3 of Managing Public Money. ↩
As constituted under Part 3, Schedule 4 of the Act ↩
As set out in the Board Emergency Procedure which sets out the process for convening the Board outside the usual schedule of meetings, including at short notice. ↩
Under paragraph 1(1)(b)(iii), Schedule 4 of the Act ↩
As constituted under paragraphs 36 and 37, Schedule 4 of the Act ↩
Paragraph 29 (1), Schedule 4 of the Act, subject to restrictions in paragraph 29(2)-(3) and paragraph 30 of Schedule 4 of the Act. ↩
Paragraph 29 but subject to paragraph 30, Schedule 4 of the Act ↩
The Civil Service code - GOV.UK (www.gov.uk) ↩
Code of conduct for board members of public bodies, 2019 (The Cabinet Office Code of Conduct) ↩
The Seven Principles of Public Life ↩
For example, the EA02, the Data Protection Act 2018 and the Official Secrets Act 1989 ↩

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