Enterprise and Regulatory Reform Bill

Session 2012 - 13
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Enterprise and Regulatory Reform Bill

Enterprise and Regulatory Reform Bill
Part 4 — Competition Reform
Chapter 5 — Miscellaneous
38

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Enforcement orders: provision of information
(1)
Schedule 8 to the 2002 Act (provision that may be contained in certain
enforcement orders made under Part 3 or 4 of that Act) is amended as follows.
(2)
Omit paragraph 15 (publication etc. of price information).
(3)
Paragraph 17 (publication etc. of other information) is amended as follows.
5
(4)
In sub-paragraph (1)—
(a)
in the words before paragraph (a), after “publish” insert “or otherwise
notify”, and
(b)
after paragraph (c) insert—
“(d)
information in relation to prices of the goods or
10
services supplied;
(e)
such other information in relation to the goods or
services supplied as the relevant authority considers
appropriate.”
(5)
After sub-paragraph (1) insert—
15
   “(1A)
An order may prohibit the publication or other notification of
information falling within sub-paragraph (1)(a) to (e) by a person
supplying goods or services.”
(6)
In paragraph 18 (supplementary provision about orders under paragraphs 15
and 17), omit “15 or”.
20
Concurrency
43
Powers of sector regulators
(1)
Section 54 of the 1998 Act (concurrent powers for regulators) is amended as
follows.
(2)
In subsection (6)—
25
(a)
after “may” insert “—
(a)
prescribe circumstances in which the CMA may decide
that, in a particular case, it is to exercise Part 1 functions
in respect of the case rather than a regulator, and
(b)
”, and
30
(b)
after “Secretary of State” insert “, the CMA”.
(3)
After subsection (6) insert—
“(6A)
Where the regulations make provision as mentioned in subsection
(6)(a), they must—
(a)
include provision requiring the CMA to consult the regulator
35
concerned before making a decision that the CMA is to exercise
Part 1 functions in respect of a particular case, and
(b)
provide that, in a case where a regulator has given notice under
section 31(1) that it proposes to make a decision (within the
meaning given by section 31(2)), the CMA may only decide that
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it is to exercise Part 1 functions in respect of the case rather than
the regulator if the regulator consents.”

Enterprise and Regulatory Reform Bill
Part 4 — Competition Reform
Chapter 5 — Miscellaneous
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(4)
After subsection (6A) insert—
“(6B)
The Secretary of State may by regulations make provision requiring
arrangements to be made for the sharing of information between
competent persons in connection with concurrent cases.
(6C)
For the purposes of subsection (6B), “a concurrent case” is a case in
5
respect of which—
(a)
the CMA considers that Part 1 functions are, or (but for
provision made under subsection (5)(e)) would be, exercisable
by both it and any regulator;
(b)
any regulator considers that Part 1 functions are, or (but for
10
provision made under subsection (5)(e)) would be, exercisable
by it.”
(5)
Schedule 14 (which makes provision governing the relationship between the
powers of regulators under the 1998 Act and those under sector-specific
legislation) has effect.
15
Miscellaneous
44
Recovery of CMA’s costs in respect of price control references
After section 193 of the Communications Act 2003 (reference of price control
matters) insert—
“193A
Recovery of CMA’s costs in respect of price control references
20
(1)
Where a determination is made on a price control matter referred by
virtue of section 193, the CMA may make an order in respect of the
costs incurred by it in connection with the reference (a “costs order”).
(2)
A costs order may require the payment to the CMA of some or all of
those costs by such parties to the appeal which gave rise to the
25
reference, other than OFCOM, as the CMA considers appropriate.
(3)
A costs order must—
(a)
set out the total costs incurred by the CMA in connection with
the reference, and
(b)
specify the proportion of those costs to be paid by each party to
30
the appeal in respect of whom the order is made.
(4)
In deciding on the proportion of costs to be paid by a party to the appeal
the CMA must, in particular, consider—
(a)
the extent to which the determination on the reference upholds
OFCOM’s decision in relation to the price control matter in
35
question,
(b)
the extent to which the costs were attributable to the
involvement in the appeal of the party, and
(c)
the conduct of the party.
(5)
A costs order—
40
(a)
must be made as soon as reasonably practicable after the
making of the determination on the reference, but
(b)
does not take effect unless the Tribunal, in deciding the appeal
which gave rise to the reference, decides the price control matter

Enterprise and Regulatory Reform Bill
Part 4 — Competition Reform
Chapter 5 — Miscellaneous
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which is the subject of the reference in accordance with the
determination of the CMA (see section 193(6)).
(6)
In a case where the Tribunal decides the price control matter in
question otherwise than as mentioned in subsection (5)(b), the CMA
may make an order under this subsection in respect of the costs
5
incurred by it in connection with the reference.
(7)
Subsections (2) to (4) apply in relation to an order under subsection (6)
as they apply in relation to an order under subsection (1); but for that
purpose the reference in subsection (4)(a) to the determination on the
reference is to be read as a reference to the decision of the Tribunal
10
mentioned in subsection (6).
(8)
An order under subsection (6) must be made as soon as reasonably
practicable after the decision of the Tribunal mentioned in that
subsection.
(9)
An amount payable to the CMA by virtue of an order made under this
15
section is recoverable summarily as a civil debt (but this does not affect
any other method of recovery).
(10)
The CMA must pay any sums it receives by virtue of this section into the
Consolidated Fund.
(11)
The functions of the CMA under this section, other than those under
20
subsections (9) and (10), are to be carried out on behalf of the CMA by
the group constituted by the chair of the CMA in relation to the
reference in question.”
45
Disclosure etc. of information: offences
In section 241 of the 2002 Act (disclosure of information for the purpose of
25
exercise of statutory functions), after subsection (2) insert—
“(2A)
Information disclosed under subsection (1) so that it is not made
available to the public must not be used by the person to whom it is
disclosed for any purpose other than that mentioned in subsection (1).”
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Review of certain provisions of Chapters 1 and 2
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(1)
The Secretary of State must, before the end of each review period—
(a)
carry out a review of the provisions of this Part mentioned in
subsection (2), and
(b)
prepare and publish a report setting out the conclusions of the review.
(2)
The provisions of this Part are—
35
(a)
sections 21 and 28 and Schedule 11 (investigation powers: mergers and
markets),
(b)
section 22 and Schedule 7 (interim measures and pre-emptive action:
mergers), and
(c)
sections 24 and 30 and Schedules 8 and 12 (time-limits etc: mergers and
40
markets).
(3)
The report must in particular—
(a)
set out the objectives intended to be achieved by the provisions,
(b)
assess the extent to which those objectives have been achieved, and

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Part 5 — Reduction of legislative burdens
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(c)
assess whether those objectives remain appropriate and, if so, the
extent to which they could be achieved in another way which imposed
less regulation.
(4)
The Secretary of State must lay the report before Parliament.
(5)
Each of the following is a review period for the purposes of this section—
5
(a)
the period of 5 years beginning with the first day on which any of the
provisions mentioned in subsection (2) comes into force (whether
wholly or partly), and
(b)
each successive period of 5 years.
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Minor and consequential amendments
10
Schedule 15 (which makes minor and consequential amendments related to
this Part) has effect.
48
Interpretation
In this Part—
“the 1998 Act” means the Competition Act 1998;
15
“the 2002 Act” means the Enterprise Act 2002.
Part 5
Reduction of legislative burdens
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Sunset and review provisions
(1)
The Interpretation Act 1978 is amended as follows.
20
(2)
After section 14 (implied power to amend) insert—
“14A
Power to include sunset and review provisions in subordinate
legislation
(1)
This section applies where an Act confers a power or a duty on a
person, other than the Scottish Ministers, to make subordinate
25
legislation.
(2)
The subordinate legislation may include—
(a)
provision requiring the person to review the effectiveness of the
legislation within a specified period or at the end of a specified
period;
30
(b)
provision for the legislation to cease to have effect at the end of
a specified day or a specified period;
(c)
if the power or duty is being exercised to amend other
subordinate legislation, provision of the kind mentioned in
paragraph (a) or (b) in relation to that other legislation.
35
(3)
The provision that may be made by virtue of subsection (2)(a) includes
provision requiring the person to consider whether the objectives
which it was the purpose of the legislation to achieve remain
appropriate and, if so, whether they could be achieved in another way.

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(4)
Subordinate legislation including provision of a kind mentioned in
subsection (2) may make such provision generally or only in relation to
specified provisions of the legislation or specified cases or
circumstances.
(5)
Subordinate legislation including provision of a kind mentioned in
5
subsection (2) may make transitional, consequential, incidental or
supplementary provisions or savings in connection with such
provision.
(6)
In this section, “specified” means specified in the subordinate
legislation.”
10
(3)
In paragraph 1 of Schedule 2, after the entry for section 11 insert—
“Section 14A”.
50
Heritage planning regulation
Schedule 16 (heritage planning regulation) has effect.
51
Commission for Equality and Human Rights
15
(1)
In the Equality Act 2006 omit—
(a)
section 3 (general duty);
(b)
sections 10 and 19 (groups);
(c)
section 27 (conciliation).
(2)
In section 12(4)(b) of that Act (monitoring progress: reports every three years)
20
for “three” substitute “five”.
(3)
The following subsections amend the Equality Act 2006 in consequence of
subsection (1).
(4)
In section 7(3) (Scotland: human rights) omit “or 10”.
(5)
In section 9(4) and (5) (human rights) omit “or 10”.
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(6)
In section 12 (monitoring progress)—
(a)
in subsection (1)(a) for “the aim specified in section 3” substitute “the
duties specified in sections 8 and 9”;
(b)
in subsection (1)(b) for “the development of the society described in
section 3” substitute “changes in society that are consistent with those
30
duties”.
(7)
In section 13(1) (information, advice etc) for “to 10” substitute “and 9”.
(8)
In section 16(1) (inquiries) for “, 9 and 10” substitute “and 9”.
(9)
In section 17(1) (grants) for “to 10” substitute “and 9”.
(10)
In section 35 (general interpretation), omit the definition of “groups”.
35
(11)
In section 39(4) (orders and regulations) for “10(6), 15(6) or 27(10)” substitute
“15(6)”.
(12)
In Schedule 1 (the Commission)—
(a)
in paragraph 39 omit “or 27”;
(b)
omit paragraph 52(1)(a)(v) and (vi) and (b);
40

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(c)
for paragraph 52(3)(b) substitute—
“(b)
section 8, in so far as it relates to disability, and”;
(d)
in paragraph 52(3)(c) omit “, 27(2) and (3)”.
(13)
The following subsections amend the Equality Act 2010 in consequence of
subsection (1).
5
(14)
In section 118 (time limits)—
(a)
in subsection (2) omit “or (4)”;
(b)
omit subsection (4).
(15)
In Schedule 17 (disabled pupils: enforcement) omit—
(a)
paragraph 4(2) (time limits where dispute referred to conciliation
10
under section 27 of the Equality Act 2006);
(b)
in paragraph 4(2A), “or for conciliation in pursuance of arrangements
under section 27 of the Equality Act 2006”.
52
Primary authorities
(1)
Section 22 of the Regulatory Enforcement and Sanctions Act 2008 (scope of Part
15
2) is amended in accordance with subsections (2) to (5).
(2)
Before subsection (1), insert—
“(A1)
This Part applies in relation to a person if the Secretary of State is
satisfied that the person is within subsection (1) or (1A).”
(3)
In subsection (1), for the words from “This Part” to “a person” substitute “A
20
person is within this subsection if—
(a)
the person”.
(4)
After subsection (1) insert—
“(1A)
A person (P) is within this subsection if each of the conditions in
subsection (1B) is met.
25
(1B)
The conditions are—
(a)
that P carries on an activity in relation to which a local authority
exercises a relevant function;
(b)
that the effect of arrangements made by P with any organisation
or other person is that P’s approach to compliance, in respect of
30
the relevant function, is one that is shared with another person
(Q) who carries on the activity;
(c)
that—
(i)
at least one of P and Q carries on the activity in the area
of two or more local authorities, or
35
(ii)
Q carries on the activity in the area of a local authority in
which P does not carry on the activity.”
(5)
For subsection (2) substitute—
“(2)
In this Part, references to “the regulated person” are to a person to
whom this Part applies.
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(3)
The Secretary of State may from time to time publish guidance about
matters likely to be taken into account for the purposes of subsection
(1B)(b).

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(4)
The guidance may be published in such manner as the Secretary of
State considers appropriate.”
(6)
In section 24 of that Act, after subsection (6) insert—
“(7)
References in this Part to “the relevant function”, in relation to the
regulated person, are to the relevant function by reference to which the
5
Secretary of State is satisfied that the person is within section 22(1) or
(1A).”
(7)
In section 26(2) of that Act (nomination of primary authorities), for “The
Secretary of State” substitute “Where the Secretary of State has been satisfied
that the regulated person is within section 22(1), the Secretary of State”.
10
53
Inspection plans
(1)
Section 30 of the Regulatory Enforcement and Sanctions Act 2008 (inspection
plans) is amended as follows.
(2)
After subsection (3) insert—
“(3A)
An inspection plan may require a local authority other than the primary
15
authority, on exercising the function of inspection in relation to the
regulated person, to provide the primary authority with a report on its
exercise of the function.”
(3)
In subsection (7)—
(a)
for the words from the beginning to “exercising” substitute “Where the
20
primary authority exercises”;
(b)
after “regulated person” insert “, it”.
(4)
After subsection (7) insert—
“(7A)
A local authority other than the primary authority may not exercise the
function of inspection in relation to the regulated person otherwise
25
than in accordance with a plan that has been brought to its notice under
subsection (6), unless—
(a)
it has notified the primary authority in writing of the way in
which it proposes to exercise the function in relation to the
regulated person, and
30
(b)
the primary authority has notified the local authority in writing
that it consents to the authority’s exercising the function in that
way.
(7B)
Subsection (7C) applies if a primary authority that has been notified by
a local authority as described in subsection (7A)(a) fails to notify that
35
authority in writing, within the notification period, whether it consents
to the authority’s exercising the function of inspection as described in
the notification.
(7C)
The primary authority is to be treated for the purposes of this section,
following the expiry of the notification period, as having given the
40
notification of consent described in subsection (7A)(b).
(7D)
The “notification period”, in subsections (7B) and (7C), is the period of
five working days beginning with the first working day after the day
on which the notification referred to in subsection (7A)(a) is received by
the primary authority.
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