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Enterprise and Regulatory Reform Bill (HC Bill 61)

A

BILL

[AS AMENDED IN PUBLIC BILL COMMITTEE]

TO

Make provision about the UK Green Investment Bank; to make provision
about employment law; to establish and make provision about the
Competition and Markets Authority and to abolish the Competition
Commission and the Office of Fair Trading; to amend the Competition Act
1998 and the Enterprise Act 2002; to make provision for the reduction of
legislative burdens; to make provision about copyright and rights in
performances; to make provision about payments to company directors; and
for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Part 1 UK Green Investment Bank

1 The green purposes

(1) The green purposes are—

(a) 5the reduction of greenhouse gas emissions;

(b) the advancement of efficiency in the use of natural resources;

(c) the protection or enhancement of the natural environment;

(d) the protection or enhancement of biodiversity;

(e) the promotion of environmental sustainability.

(2) 10In subsection (1), “greenhouse gas” has the meaning given by section 92(1) of
the Climate Change Act 2008.

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2 Designation of the UK Green Investment Bank

(1) If the following two conditions are met, the Secretary of State may by order
designate the UK Green Investment Bank for the purposes of sections 3 to 6.

(2) The first condition is that the Secretary of State is satisfied that the Bank’s
5objects in its articles of association are such that, acting consistently with them,
it would engage only in activities that involve, or are incidental or conducive
to, making, facilitating or encouraging investments that it considers likely to
contribute to the achievement of one or more of the green purposes in the
United Kingdom.

(3) 10The second condition is that the Secretary of State has laid before Parliament a
copy of an undertaking (the “operational independence undertaking”)
provided by the Secretary of State to the Bank for the purpose of facilitating the
Bank’s ability to act as its directors consider appropriate in the light of the
objects in its articles of association.

(4) 15An order may not be made under this section unless at the date on which it is
made the UK Green Investment Bank is wholly owned by the Crown.

(5) An order under this section may not be amended or revoked.

(6) An order under this section is to be made by statutory instrument subject to
annulment in pursuance of a resolution of either House of Parliament.

(7) 20References in this Part to the UK Green Investment Bank are to the public
company limited by shares incorporated on 15 May 2012 with the company
number SC424067 and with the name UK Green Investment Bank plc.

3 Alteration of the objects of the UK Green Investment Bank

(1) Where an order has been made under section 2, the UK Green Investment Bank
25may not make any alteration to the objects in its articles of association unless—

(a) the alteration is made to give effect to an order of a court or other
authority having power to alter the Bank’s articles of association, or

(b) the making of the alteration has been approved by the Secretary of State
by order under this section.

(2) 30The Secretary of State may not make an order under this section approving the
making of an alteration unless the condition in subsection (3) is met.

(3) The condition is that the Secretary of State is satisfied that, if the alteration were
made, the objects of the Bank in its articles of association would remain such
that, acting consistently with them, it would engage only in activities that
35involve, or are incidental or conducive to, making, facilitating or encouraging
investments that it considers likely to contribute to the achievement of one or
more of the green purposes in the United Kingdom.

(4) An order under this section—

(a) is to be made by statutory instrument, and

(b) 40is not to be made unless a draft of the instrument has been laid before,
and approved by a resolution of, each House of Parliament.

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4 The UK Green Investment Bank: financial assistance

(1) Where an order has been made under section 2, the Secretary of State may, with
the consent of the Treasury, give the UK Green Investment Bank financial
assistance at any time when the Crown’s shareholding in it is more than half of
5its issued share capital.

(2) The financial assistance may be given in any form that the Secretary of State,
with the consent of the Treasury, considers appropriate.

(3) It may in particular be given by way of—

(a) grants,

(b) 10loans,

(c) guarantees,

(d) the purchase of share capital of the Bank, or

(e) the transfer of assets or rights to the Bank.

(4) The financial assistance may be provided subject to such terms and conditions
15as the Secretary of State, with the consent of the Treasury, considers
appropriate (including, in the case of a grant or a loan, conditions requiring
repayment or, in the case of a guarantee, conditions requiring reimbursement
of any sums paid under it).

(5) The Treasury may arrange for money to be paid out of the National Loans
20Fund in order to enable loans to be made to the Bank under this section.

(6) Nothing in this section affects the exercise of any power of the Treasury or the
Secretary of State to give financial assistance to the Bank otherwise than under
this section at a time when the Crown’s shareholding in the Bank is not more
than half of its issued share capital.

5 25The UK Green Investment Bank: accounts and reports

Where an order has been made under section 2, the UK Green Investment Bank
is to be treated for the purposes of the application to it of Parts 15 and 16 of the
Companies Act 2006, in respect of a financial year, as being a quoted company
within the meaning of section 385(2) of that Act.

6 30The UK Green Investment Bank: documents to be laid before Parliament

(1) Subsection (2) applies if—

(a) after an order has been made under section 2, copies of the UK Green
Investment Bank’s annual accounts and reports are, in accordance with
section 437 of the Companies Act 2006, laid before it in general meeting,
35and

(b) as at the date of the meeting, the Crown holds shares in the Bank.

(2) The Secretary of State must, as soon as practicable after the meeting, lay a copy
of the annual accounts and reports before Parliament.

(3) Subsection (4) applies if—

(a) 40after an order has been made under section 2, the Secretary of State—

(i) makes a material alteration to the terms of the operational
independence undertaking referred to in subsection (3) of
section 2, or

(ii) revokes that undertaking, and

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(b) as at the date of the alteration or revocation, the Crown’s shareholding
in the UK Green Investment Bank is more than half of its issued share
capital.

(4) The Secretary of State must, as soon as practicable after the date referred to in
5subsection (3)(b)

(a) in the case of an alteration, lay a copy of the revised undertaking before
Parliament;

(b) in the case of revocation of the undertaking, lay before Parliament a
statement reporting the revocation.

10Part 2 Employment

Conciliation

7 Conciliation before institution of proceedings

(1) After section 18 of the Employment Tribunals Act 1996 (conciliation) insert—

18A 15Requirement to contact ACAS before instituting proceedings

(1) Before a person (“the prospective claimant”) presents an application to
institute relevant proceedings relating to any matter, the prospective
claimant must send to ACAS prescribed information, in the prescribed
manner, about that matter.

20This is subject to subsection (7).

This is subject to subsection (7).

(2) On receiving the prescribed information in the prescribed manner,
ACAS shall send a copy of it to a conciliation officer.

(3) The conciliation officer shall, during the prescribed period, endeavour
25to promote a settlement between the persons who would be parties to
the proceedings.

(4) If—

(a) during the prescribed period the conciliation officer concludes
that a settlement is not possible, or

(b) 30the prescribed period expires without a settlement having been
reached,

the conciliation officer shall issue a certificate to that effect, in the
prescribed manner, to the prospective claimant.

(5) The conciliation officer may continue to endeavour to promote a
35settlement after the expiry of the prescribed period.

(6) In subsections (3) to (5) “settlement” means a settlement that avoids
proceedings being instituted.

(7) A person may institute relevant proceedings without complying with
the requirement in subsection (1) in prescribed cases.

40The cases that may be prescribed include (in particular)—

  • cases where the requirement is complied with by another
    person instituting relevant proceedings relating to the same
    matter;

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  • cases where proceedings that are not relevant proceedings are
    instituted by means of the same form as proceedings that are;

  • cases where section 18B applies because ACAS has been
    contacted by a person against whom relevant proceedings are
    5being instituted.

The cases that may be prescribed include (in particular)—

  • cases where the requirement is complied with by another
    person instituting relevant proceedings relating to the same
    matter;

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  • cases where proceedings that are not relevant proceedings are
    instituted by means of the same form as proceedings that are;

  • cases where section 18B applies because ACAS has been
    contacted by a person against whom relevant proceedings are
    5being instituted.

(8) A person who is subject to the requirement in subsection (1) may not
present an application to institute relevant proceedings without a
certificate under subsection (4).

(9) Where a conciliation officer acts under this section in a case where the
10prospective claimant has ceased to be employed by the employer and
the proposed proceedings are proceedings under section 111 of the
Employment Rights Act 1996, the conciliation officer may in
particular—

(a) seek to promote the reinstatement or re-engagement of the
15prospective claimant by the employer, or by a successor of the
employer or by an associated employer, on terms appearing to
the conciliation officer to be equitable, or

(b) where the prospective claimant does not wish to be reinstated
or re-engaged, or where reinstatement or re-engagement is not
20practicable, seek to promote agreement between them as to a
sum by way of compensation to be paid by the employer to the
prospective claimant.

(10) In subsections (1) to (7) “prescribed” means prescribed in employment
tribunal procedure regulations.

(11) 25The Secretary of State may by employment tribunal procedure
regulations make such further provision as appears to the Secretary of
State to be necessary or expedient with respect to the conciliation
process provided for by subsections (1) to (8).

(12) Employment tribunal procedure regulations may (in particular) make
30provision—

(a) authorising the Secretary of State to prescribe, or prescribe
requirements in relation to, any form which is required by such
regulations to be used for the purpose of sending information to
ACAS under subsection (1) or issuing a certificate under
35subsection (4);

(b) requiring ACAS to give a person any necessary assistance to
comply with the requirement in subsection (1);

(c) for the extension of the period prescribed for the purposes of
subsection (3);

(d) 40treating the requirement in subsection (1) as complied with, for
the purposes of any provision extending the time limit for
instituting relevant proceedings, by a person who is relieved of
that requirement by virtue of subsection (7)(a).

18B Conciliation before institution of proceedings: other ACAS duties

(1) 45This section applies where—

(a) a person contacts ACAS requesting the services of a conciliation
officer in relation to a matter that (if not settled) is likely to give
rise to relevant proceedings against that person, and

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(b) ACAS has not received information from the prospective
claimant under section 18A(1).

(2) This section also applies where—

(a) a person contacts ACAS requesting the services of a conciliation
5officer in relation to a matter that (if not settled) is likely to give
rise to relevant proceedings by that person, and

(b) the requirement in section 18A(1) would apply to that person
but for section 18A(7).

(3) Where this section applies a conciliation officer shall endeavour to
10promote a settlement between the persons who would be parties to the
proceedings.

(4) If at any time—

(a) the conciliation officer concludes that a settlement is not
possible, or

(b) 15a conciliation officer comes under the duty in section 18A(3) to
promote a settlement between the persons who would be
parties to the proceedings,

the duty in subsection (3) ceases to apply at that time.

(5) In subsections (3) and (4) “settlement” means a settlement that avoids
20proceedings being instituted.

(6) Subsection (9) of section 18A applies for the purposes of this section as
it applies for the purposes of that section.

(2) Schedule 1 (conciliation: minor and consequential amendments) has effect.

8 Extension of limitation periods to allow for conciliation

25Schedule 2 (extension of limitation periods to allow for conciliation) has effect.

9 Extended power to define “relevant proceedings” for conciliation purposes

(1) Section 18 of the Employment Tribunals Act 1996 (conciliation) is amended as
follows.

(2) In subsection (8) (power of Secretary of State and Lord Chancellor to amend list
30in subsection (1) of section 18), for paragraphs (a) and (b) substitute “amend the
definition of “relevant proceedings” in subsection (1) by adding to or removing
from the list in that subsection particular types of employment tribunal
proceedings.”

(3) After subsection (8) insert—

(9) 35An order under subsection (8) that adds employment tribunal
proceedings to the list in subsection (1) may amend an enactment so as
to extend the time limit for instituting those proceedings in such a way
as appears necessary or expedient in order to facilitate the conciliation
process provided for by section 18A.

(10) 40An order under subsection (8) that removes employment tribunal
proceedings from the list in subsection (1) may—

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(a) repeal or revoke any provision of an enactment that, for the
purpose mentioned in subsection (9), extends the time limit for
instituting those proceedings;

(b) make further amendments which are consequential on that
5repeal or revocation.

Procedure for deciding tribunal cases

10 Decisions by legal officers

(1) In section 4 of the Employment Tribunals Act 1996 (composition of a tribunal),
after subsection (6C) insert—

(6D) 10A person appointed as a legal officer in accordance with regulations
under section 1(1) may determine proceedings in respect of which an
employment tribunal has jurisdiction, or make a decision falling to be
made in the course of such proceedings, if—

(a) the proceedings are of a description specified in an order under
15this subsection made by the Secretary of State and the Lord
Chancellor acting jointly, and

(b) all the parties to the proceedings consent in writing;

and any determination or decision made under this subsection shall be
treated as made by an employment tribunal.

(2) 20In section 41(2) of that Act (orders etc subject to affirmative resolution
procedure), after “section 4(4)” insert “or (6D)”.

11 Composition of Employment Appeal Tribunal

(1) The Employment Tribunals Act 1996 is amended as set out in subsections (2)
to (4).

(2) 25In section 28 (composition of Appeal Tribunal), for subsections (2) to (4A)
substitute—

(2) Proceedings before the Appeal Tribunal are to be heard by a judge
alone.

This is subject to subsections (3) to (7) and to any provision made by

30This is subject to subsections (3) to (7) and to any provision made by

(2)
virtue of section 30(2)(f) or (2A).

(3) A judge may direct that proceedings are to be heard by a judge and
either two or four appointed members.

(4) If a judge gives a direction under subsection (3), there shall be an equal
35number of—

(a) employer-representative members, and

(b) worker-representative members.

(5) A judge may, with the consent of the parties, direct that proceedings are
to be heard by a judge and either one or three appointed members.

(6) 40The Lord Chancellor may by order provide for proceedings of a
description specified in the order to be heard by a judge and a specified
number of appointed members.

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(7) An order under subsection (6) may include provision about how many
of the appointed members are to be employer-representative members
and how many are to be worker-representative members.

(8) In this section—

  • 5“employer-representative members” means appointed members
    whose knowledge or experience of industrial relations is as
    representatives of employers;

  • “worker-representative members” means appointed members
    whose knowledge or experience of industrial relations is as
    10representatives of workers.

(3) In section 30 (Appeal Tribunal procedure rules), in subsection (2)(f) (provision
for dealing with interlocutory matters), for the words from “otherwise” to the
end substitute “by an officer of the Appeal Tribunal”.

(4) In section 41(2) (orders etc subject to affirmative resolution procedure), before
15“or 40” insert “, 28(6)”.

(5) In consequence of the amendment made by subsection (2), omit paragraph 46
of Schedule 8 to the Tribunals, Courts and Enforcement Act 2007.

Unfair dismissal

12 Confidentiality of negotiations before termination of employment

20After section 111 of the Employment Rights Act 1996 insert—

111A Confidentiality of negotiations before termination of employment

(1) In determining any matter arising on a complaint under section 111, an
employment tribunal may not take account of any offer made or
discussions held, before the termination of the employment in
25question, with a view to it being terminated on terms agreed between
the employer and the employee.

This is subject to the following provisions of this section.

This is subject to the following provisions of this section.

(2) Subsection (1) does not apply where, according to the complainant’s
30case, the circumstances are such that a provision (whenever made)
contained in, or made under, this or any other Act requires the
complainant to be regarded for the purposes of this Part as unfairly
dismissed.

(3) In relation to anything said or done which in the tribunal’s opinion was
35improper, or was connected with improper behaviour, subsection (1)
applies only to the extent that the tribunal considers just.

(4) The reference in subsection (1) to a matter arising on a complaint under
section 111 includes any question as to costs, except in relation to an
offer made on the basis that the right to refer to it on any such question
40is reserved.

(5) Subsection (1) does not prevent the tribunal from taking account of a
determination made in any other proceedings between the employer
and the employee in which account was taken of an offer or discussions
of the kind mentioned in that subsection.