Lords Amendments to the Enterprise and Regulatory Reform Bill

Session 2012 - 13
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Lords Amendments to the Enterprise and Regulatory Reform Bill

13

“(5A)
Nothing in section 226B or 226C applies in relation to a

remuneration payment or (as the case may be) a payment for loss of

office made to a person who is, or is to be or has been, a director of

a quoted company before the earlier of—

(a)
the end of the first financial year of the company to begin on

or after the day on which it becomes a quoted company, and

(b)
the date from which the company’s first directors’

remuneration policy to be approved under section 439A

takes effect.”
52
Page 69, line 43, leave out “Subject to subsections (3) and (4),”
53
Page 70, line 10, leave out “it” and insert “—

(a)
subsection (2) does not apply,

(b)
the payment”
54
Page 70, line 16, leave out from end of line to “is” in line 17 and insert—

“( )
subsection (2) does not apply,

( )
the payment”
55
Page 70, line 21, at end insert—

“(5)
If in proceedings against a director for the enforcement of a liability

under subsection (2)(b)—

(a)
the director shows that he or she has acted honestly and

reasonably, and

(b)
the court considers that, having regard to all the

circumstances of the case, the director ought to be relieved

of liability,


the court may relieve the director, either wholly or in part, from

liability on such terms as the court thinks fit.”
Clause 72
56
Page 70, line 45, after “company” insert “other than a payment to which section

226C does not apply by virtue of section 226D(5A)”
57
Page 71, line 11, after “concerned,” insert—

“( )
particulars of any remuneration payment (within the meaning of

Chapter 4A of Part 10) made or to be made to the person after

ceasing to be a director, including its amount and how it was

calculated,”
58
Page 71, line 13, leave out “Chapter 4A of Part 10” and insert “that Chapter”
59
Page 71, line 13, after “made” insert “or to be made”
Clause 73
60
Page 72, line 16, at end insert—

“( )
In relation to a company that is a quoted company immediately before the

day on which section 70 of this Act comes into force, section 439A(1)(a) of

the Companies Act 2006 (as inserted by section 70(4) of this Act) applies as

if—

14

(a)
the reference to the day on which the company becomes a quoted

company were a reference to the day on which section 70 of this Act

comes into force, and

(b)
at the end of the paragraph (but before the “, and”) there were

inserted “or at an earlier general meeting”.

( )
In relation to a company that is a quoted company immediately before the

day on which section 70 of this Act comes into force, section 226D(5A)(a) of

the Companies Act 2006 (as inserted by section 71 of this Act) applies as if

the reference to the day on which the company becomes a quoted company

were a reference to the day on which section 70 of this Act comes into

force.”
61
Page 72, line 17, leave out subsection (1)
62
Page 72, line 21, leave out subsection (2)
63
Page 73, line 2, leave out “(2) or”
After Clause 73
64
Insert the following new Clause—

“Supply of customer data

(1)
The Secretary of State may by regulations require a regulated person to

provide customer data—

(a)
to a customer, at the customer’s request;

(b)
to a person who is authorised by a customer to receive the data, at

the customer’s request or, if the regulations so provide, at the

authorised person’s request.

(2)
“Regulated person” means—

(a)
a person who, in the course of a business, supplies gas or electricity

to any premises;

(b)
a person who, in the course of a business, provides a mobile phone

service;

(c)
a person who, in the course of a business, provides financial

services consisting of the provision of current account or credit card

facilities;

(d)
any other person who, in the course of a business, supplies or

provides goods or services of a description specified in the

regulations.

(3)
“Customer data” means information which—

(a)
is held in electronic form by or on behalf of the regulated person,

and

(b)
relates to transactions between the regulated person and the

customer.

(4)
Regulations under subsection (1) may make provision as to the form in

which customer data is to be provided and when it is to be provided (and

any such provision may differ depending on the form in which a request

for the data is made).

(5)
Regulations under subsection (1)—

15

(a)
may authorise the making of charges by a regulated person for

complying with requests for customer data, and

(b)
if they do so, must provide that the amount of any such charge—

(i)
is to be determined by the regulated person, but

(ii)
may not exceed the cost to that person of complying with

the request.

(6)
Regulations under subsection (1)(b) may provide that the requirement

applies only if the authorised person satisfies any conditions specified in

the regulations.

(7)
In deciding whether to specify a description of goods or services for the

purposes of subsection (2)(d), the Secretary of State must (among other

things) have regard to the following—

(a)
the typical duration of the period during which transactions

between suppliers or providers of the goods or services and their

customers take place;

(b)
the typical volume and frequency of the transactions;

(c)
the typical significance for customers of the costs incurred by them

through the transactions;

(d)
the effect that specifying the goods or services might have on the

ability of customers to make an informed choice about which

supplier or provider of the goods or services, or which particular

goods or services, to use;

(e)
the effect that specifying the goods or services might have on

competition between suppliers or providers of the goods or

services.

(8)
The power to make regulations under this section may be exercised—

(a)
so as to make provision generally, only in relation to particular

descriptions of regulated persons, customers or customer data or

only in relation to England, Wales, Scotland or Northern Ireland;

(b)
so as to make different provision for different descriptions of

regulated persons, customers or customer data;

(c)
so as to make different provision in relation to England, Wales,

Scotland and Northern Ireland;

(d)
so as to provide for exceptions or exemptions from any requirement

imposed by the regulations, including doing so by reference to the

costs to the regulated person of complying with the requirement

(whether generally or in particular cases).

(9)
For the purposes of this section, a person (“C”) is a customer of another

person (“R”) if—

(a)
C has at any time, including a time before the commencement of

this section, purchased (whether for the use of C or another person)

goods or services supplied or provided by R or received such goods

or services free of charge, and

(b)
the purchase or receipt occurred—

(i)
otherwise than in the course of a business, or

(ii)
in the course of a business of a description specified in the

regulations.

(10)
In this section, “mobile phone service” means an electronic

communications service which is provided wholly or mainly so as to be

16

available to members of the public for the purpose of communicating with

others, or accessing data, by mobile phone.”
65
Insert the following new Clause—

“Supply of customer data: enforcement

(1)
Regulations may make provision for the enforcement of regulations under

section (Supply of customer data) (“customer data regulations”) by the

Information Commissioner or any other person specified in the regulations

(and, in this section, “enforcer” means a person on whom functions of

enforcement are conferred by the regulations).

(2)
The provision that may be made under subsection (1) includes provision—

(a)
for applications for orders requiring compliance with the customer

data regulations to be made by an enforcer to a court or tribunal;

(b)
for notices requiring compliance with the customer data

regulations to be issued by an enforcer and for the enforcement of

such notices (including provision for their enforcement as if they

were orders of a court or tribunal).

(3)
The provision that may be made under subsection (1) also includes

provision—

(a)
as to the powers of an enforcer for the purposes of investigating

whether there has been, or is likely to be, a breach of the customer

data regulations or of orders or notices of a kind mentioned in

subsection (2)(a) or (b) (which may include powers to require the

provision of information and powers of entry, search, inspection

and seizure);

(b)
for the enforcement of requirements imposed by an enforcer in the

exercise of such powers (which may include provision comparable

to any provision that is, or could be, included in the regulations for

the purposes of enforcing the customer data regulations).

(4)
Regulations under subsection (1) may—

(a)
require an enforcer (if not the Information Commissioner) to inform

the Information Commissioner if the enforcer intends to exercise

functions under the regulations in a particular case;

(b)
provide for functions under the regulations to be exercisable by

more than one enforcer (whether concurrently or jointly);

(c)
where such functions are exercisable concurrently by more than

one enforcer—

(i)
designate one of the enforcers as the lead enforcer;

(ii)
require the other enforcers to consult the lead enforcer

before exercising the functions in a particular case;

(iii)
authorise the lead enforcer to give directions as to which of

the enforcers is to exercise the functions in a particular case.

(5)
Regulations may make provision for applications for orders requiring

compliance with the customer data regulations to be made to a court or

tribunal by a customer who has made a request under those regulations or

in respect of whom such a request has been made.

(6)
Subsection (8)(a) to (c) of section (Supply of customer data) applies for the

purposes of this section as it applies for the purposes of that section.

17

(7)
The Secretary of State may make payments out of money provided by

Parliament to an enforcer.

(8)
In this section, “customer” and “regulated person” have the same meaning

as in section (Supply of customer data).”
66
Insert the following new Clause—

“Supply of customer data: supplemental

(1)
The power to make regulations under section (Supply of customer data) or

(Supply of customer data: enforcement) includes—

(a)
power to make incidental, supplementary, consequential,

transitional or saving provision;

(b)
power to provide for a person to exercise a discretion in a matter.

(2)
Regulations under either of those sections must be made by statutory

instrument.

(3)
A statutory instrument containing (whether alone or with other

provision)—

(a)
regulations under section (Supply of customer data) which make

provision by virtue of section (Supply of customer data)(2)(d), or

(b)
regulations under section (Supply of customer data: enforcement),


may not be made unless a draft of the instrument has been laid before, and

approved by a resolution of, each House of Parliament.

(4)
A statutory instrument which—

(a)
contains regulations under section (Supply of customer data), and

(b)
is not an instrument to which subsection (3) applies,


is subject to annulment in pursuance of a resolution of either House of

Parliament.”
67
Insert the following new Clause—

“Power to add to supplies protected under Insolvency Act 1986

(1)
The Secretary of State may by order amend section 233 of the Insolvency

Act 1986 so as to add to the supplies mentioned in subsection (3) of that

section any of the following—

(a)
a supply of gas, electricity, water or communication services by a

specified description of person;

(b)
a supply of a specified description of goods or services by a

specified description of person where the supply is for the purpose

of enabling or facilitating anything to be done by electronic means.

(2)
The Secretary of State may by order amend section 372 of that Act of 1986

so as to add to the supplies mentioned in subsection (4) of that section any

of the following—

(a)
a supply of gas, electricity, water or communication services by a

specified description of person;

(b)
a supply of a specified description of goods or services by a

specified description of person where the supply is for the purpose

of enabling or facilitating anything to be done by electronic means.

18

(3)
The power to make an order under this section includes power to make

incidental, supplementary, consequential, transitional or saving provision,

including doing so by amending any enactment.

(4)
An order under this section must be made by statutory instrument.

(5)
A statutory instrument containing an order under this section may not be

made unless a draft of the instrument has been laid before, and approved

by a resolution of, each House of Parliament.

(6)
In this section—

“enactment” includes—

(a)
an enactment contained in subordinate legislation (within

the meaning of the Interpretation Act 1978),

(b)
an enactment contained in, or in an instrument made under,

an Act of the Scottish Parliament, and

(c)
an enactment contained in, or in an instrument made under,

a Measure or Act of the National Assembly for Wales; and

“specified” means specified in the order.”
68
Insert the following new Clause—

“Corporate insolvency: power to give further protection to essential supplies

(1)
The Secretary of State may by order make provision for insolvency-related

terms of a contract for the supply of essential goods or services to a

company to cease to have effect where—

(a)
the company enters administration or a voluntary arrangement

under Part 1 of the Insolvency Act 1986 takes effect in relation to it,

and

(b)
any conditions specified in the order are met.

(2)
The order must include provision for securing that, where an insolvency-

related term of a contract ceases to have effect under the order, the contract

may be terminated by the supplier if—

(a)
an insolvency office-holder consents to the termination,

(b)
a court grants permission for the termination, or

(c)
any charges in respect of the supply that are incurred after the

company enters administration or the voluntary arrangement takes

effect are not paid within the period of 28 days beginning with the

day on which payment is due.

(3)
The order must include provision for securing that, where an insolvency-

related term of a contract ceases to have effect under the order, the supplier

may terminate the supply unless an insolvency office-holder personally

guarantees the payment of any charges in respect of the continuation of the

supply.

(4)
The order may provide for exceptions to the right of a supplier to terminate

a supply under provision made by virtue of subsection (3).

(5)
The order must (in addition to the provision mentioned in subsections (2)

and (3)) include such other provision as the Secretary of State considers

appropriate for securing that the interests of suppliers are protected.

(6)
A contract for the supply of essential goods or services is a contract for a

supply mentioned in section 233(3) of the Insolvency Act 1986.

19

(7)
An insolvency-related term of a contract for the supply of essential goods

or services to a company is a provision of the contract under which—

(a)
the contract or the supply would terminate, or any other thing

would take place, because the company enters administration or

the voluntary arrangement takes effect,

(b)
the supplier would be entitled to terminate the contract or the

supply, or to do any other thing, because the company enters

administration or the voluntary arrangement takes effect, or

(c)
the supplier would be entitled to terminate the contract or the

supply because of an event that occurred before the company enters

administration or the voluntary arrangement takes effect.

(8)
In this section, “insolvency office-holder” means—

(a)
in a case where a company enters administration, the administrator;

(b)
in the case where a voluntary arrangement under Part 1 of the

Insolvency Act 1986 takes effect in relation to a company, the

supervisor of the voluntary arrangement.”
69
Insert the following new Clause—

“Individual insolvency: power to give further protection to essential supplies

(1)
The Secretary of State may by order make provision for insolvency-related

terms of a contract for the supply of essential goods or services to an

individual to cease to have effect where—

(a)
a voluntary arrangement proposed by the individual is approved

under Part 8 of the Insolvency Act 1986, and

(b)
any conditions specified in the order are met.

(2)
The order must include a condition that ensures that an insolvency-related

term of a contract for the supply of essential goods or services to an

individual does not cease to have effect unless the supply is for the purpose

of a business that is or has been carried on by the individual or with which

the individual has or had another connection of a kind specified in the

order.

(3)
The order must include provision for securing that, where an insolvency-

related term of a contract ceases to have effect under the order, the contract

may be terminated by the supplier if—

(a)
the supervisor of the voluntary arrangement consents to the

termination,

(b)
a court grants permission for the termination, or

(c)
any charges in respect of the supply that are incurred after the

voluntary arrangement proposed by the individual is approved are

not paid within the period of 28 days beginning with the day on

which payment is due.

(4)
The order must include provision for securing that, where an insolvency-

related term of a contract ceases to have effect under the order, the supplier

may terminate the supply unless the supervisor of the voluntary

arrangement personally guarantees the payment of any charges in respect

of the continuation of the supply.

(5)
The order may provide for exceptions to the right of a supplier to terminate

a supply under provision made by virtue of subsection (4).