Enterprise Bill (HC Bill 112)

(3) For the purposes of giving effect to the abolition of the office of Small Business
Commissioner, the regulations may amend or repeal this Part or any provision
made by or under any other enactment (whether passed or made before or
after this Act).

(4) 5Regulations under this section may make incidental, supplemental,
consequential, transitional or transitory provision or savings.

(5) Before making regulations under this section, the Secretary of State must
consult—

(a) the Small Business Commissioner (unless that office is vacant),

(b) 10such other persons as appear to the Secretary of State to be persons
affected by the regulations, and

(c) such other persons as the Secretary of State considers appropriate.

(6) If, as a result of consultation under subsection (5), the Secretary of State
considers it appropriate to change the whole or part of the proposed
15regulations, the Secretary of State must carry out such further consultation
with respect to the changes as seems appropriate.

12 Regulations under section 11: procedure

(1) In this section “regulations” means regulations under section 11.

(2) If after consultation under section 11, the Secretary of State considers it
20appropriate to proceed with the making of regulations, the Secretary of State
may lay before Parliament—

(a) draft regulations, and

(b) an explanatory document.

(3) The explanatory document must—

(a) 25explain why the Secretary of State considers that one of the conditions
in section 11(1) is met, and

(b) contain a summary of representations received in the consultation.

(4) The Secretary of State may not act under subsection (2) before the end of the
period of 12 weeks beginning with the day on which the consultation began
30under section 11(5).

(5) Subject to subsections (6) to (13), if after the expiry of the 40-day period the
draft regulations laid under subsection (2) are approved by a resolution of each
House of Parliament, the Secretary of State may make regulations in the terms
of the draft regulations.

(6) 35The procedure in subsections (7) to (10) applies to the draft regulations instead
of the procedure in subsection (5) if—

(a) either House of Parliament so resolves within the 30-day period, or

(b) a committee of either House charged with reporting on the draft
regulations so recommends within the 30-day period and the House to
40which the recommendation is made does not by resolution reject the
recommendation within that period.

(7) The Secretary of State must have regard to—

(a) any representations,

(b) any resolution of either House of Parliament, and

(c) any recommendations of a committee of either House of Parliament
charged with reporting on the draft regulations,

made during the 60-day period with regard to the draft regulations.

(8) If after the expiry of the 60-day period the draft regulations are approved by a
5resolution of each House of Parliament, the Secretary of State may make
regulations in the terms of the draft regulations.

(9)
If after the expiry of the 60-day period the Secretary of State wishes to proceed
with the draft regulations but with material changes, the Secretary of State may
lay before Parliament—

(a) 10revised draft regulations, and

(b) a statement giving a summary of the changes proposed.

(10) If the revised draft regulations are approved by a resolution of each House of
Parliament, the Secretary of State may make regulations in the terms of the
revised draft regulations.

(11) 15For the purposes of this section regulations are made in the terms of draft
regulations or revised draft regulations if they contain no material changes to
their provisions.

(12) In this section, references to the “30-day”, “40-day” and “60-day” periods in
relation to any draft regulations are to the periods of 30, 40 and 60 days
20beginning with the day on which the draft regulations were laid before
Parliament.

(13) For the purposes of subsection (12) no account is to be taken of any time during
which Parliament is dissolved or prorogued or during which either House is
adjourned for more than four days.

(14) 25Regulations are to be made by statutory instrument.

Definitions

13 Definitions used in Part

1

In this Part—

• 30“adjudication” includes arbitration;

• “the Commissioner” means the Small Business Commissioner;

• “the complainant” has the same meaning as in section 4;

• “legal proceedings” means civil or criminal proceedings in or before a
  court or tribunal;

• 35“public authority” means—

  (a)

  a public authority within the meaning of section 3(1) of the
  Freedom of Information Act 2000, or

  (b)

  a Scottish public authority within the meaning of section 3(1) of
  the Freedom of Information (Scotland) Act 2002;

• 40“SBC complaints scheme” has the meaning given by section 4(1);

• “small business” has the meaning given by section 2;

• “the respondent” has the same meaning as in section 4.

Part 2 Regulators

Business impact target

14 Extension of target to provisions made by regulators

(1) 5Section 22 of the Small Business, Enterprise and Employment Act 2015
(definition of “qualifying regulatory provisions” etc) is amended as follows.

(2) In subsection (6)(c) (“statutory provision” includes a provision which has effect
by virtue of the exercise of a function conferred on a Minister of the Crown by
an Act)—

(a) 10after “Minister of the Crown” insert “or a relevant regulator”;

(b) after “by”, in the second place, insert “or under”.

(3) After subsection (8) insert—

“(9) In this section a “relevant regulator” means a body or other person
specified in regulations made by the Secretary of State.

(10) 15Regulations under subsection (9) are subject to affirmative resolution
procedure.”

(4) Schedule 2 makes amendments consequential on subsections (1) to (3), and
related amendments.

(5) The amendments made by this section and Schedule 2 apply in relation to the
20whole of the relevant period in which this section comes into force.

(6) The first regulations made under section 22(9) of the 2015 Act (as inserted by
subsection (3)) apply in relation to the whole of the relevant period in which
they come into force.

(7) If those regulations come into force in a reporting period mentioned in any of
25section 23(7)(b) to (d) of the 2015 Act then, in respect of past reporting
periods—

(a) section 24A(3) of the 2015 Act (as inserted by paragraph 4 of Schedule
2) does not apply;

(b) the required documents (see subsection (2) of that section) must be
30published no later than two weeks after the end of the reporting period
in which the regulations come into force.

(8) Subsequent regulations made under section 22(9) of the 2015 Act may make
provision corresponding to subsections (6) and (7) in respect of the relevant
period in which the regulations come into force.

(9) 35In this section—

• “relevant period” has the meaning given by section 21(7) of the 2015 Act;

• “reporting period” has the same meaning as in section 23 of the 2015 Act
  (see subsection (7) of that section);

• “the 2015 Act” means the Small Business, Enterprise and Employment Act
  402015.

Reporting requirements

15 Duty to report on effect of regulators’ code

After section 23 of the Legislative and Regulatory Reform Act 2006 insert—

“23A Code of practice: performance reports and information requirements

(1) 5A relevant regulator must prepare and publish a performance report in
respect of each reporting period.

(2) A performance report is a report about the effect of performance of the
duties in section 22 (duties to have regard to code of practice) on the
way the relevant regulator exercised its relevant functions.

(3) 10A relevant regulator is a person with regulatory functions to which
section 22 applies, other than a local authority.

(4) A performance report must include—

(a) the relevant regulator’s assessment—

(i) of the views of persons carrying on businesses about the
15effect mentioned in subsection (2), and

(ii) of the impact on such persons of that effect;

(b) a description of the effect the relevant regulator expects
performance of the duties in section 22 to have on the way it
exercises its relevant functions in future.

(5) 20In preparing and publishing a performance report a relevant regulator
must follow any guidance given from time to time by a Minister of the
Crown, unless the regulator considers that there is a good reason not to
do so.

(6) Guidance under subsection (5) may, in particular, include guidance as
25to—

(a) information or other matters to be included in a performance
report;

(b) information to be obtained for the purposes of a performance
report;

(c) 30the means by which information should be obtained for the
purposes of a performance report.

(7) A performance report must be published no later than three months
after the end of the reporting period concerned.

(8) A reporting period is a period of 12 months, except as provided by
35subsection (13)(b).

(9) A new reporting period begins immediately after the end of each
reporting period.

(10) A relevant regulator other than the Commission for Equality and
Human Rights must give to a Minister of the Crown any information
40that the Minister may from time to time request which relates to—

(a) the effect of performance of the duties in section 22 on the way
the relevant regulator performs, has performed, or is expected
to perform, its relevant functions,

(b) the views of persons carrying on businesses about the effect
mentioned in paragraph (a) or the impact on such persons of
that effect, or

(c) any aspect of a performance report in relation to which it
5appears to the Minister that guidance under subsection (5) has
not been followed.

(11) This section is subject to any express restriction on disclosure imposed
by another enactment (ignoring any restriction which allows disclosure
if authorised by an enactment).

(12) 10In this section—

• “local authority” means—

  (a)

  a county or district council in England;

  (b)

  a London borough council;

  (c)

  the Common Council of the City of London;

  (d)

  15the Sub-Treasurer of the Inner Temple and the Under-
  Treasurer of the Middle Temple;

  (e)

  the Council of the Isles of Scilly;

  (f)

  a port health authority in England;

  (g)

  an authority established under section 10 of the Local
  20Government Act 1985 (waste disposal authorities for
  Greater London and metropolitan counties);

  (h)

  a county or county borough council in Wales;

  (i)

  a fire and rescue authority in Wales;

  (j)

  a port health authority in Wales;

  (k)

  25a council constituted under section 2 of the Local
  Government etc (Scotland) Act 1994;

  (l)

  a district council constituted under section 1 of the Local
  Government Act (Northern Ireland) 1972;

• “relevant functions” means functions in the exercise of which a
  30relevant regulator is required by section 22 to have regard to the
  code of practice under subsection (1) of that section.

(13) A relevant regulator’s first reporting period—

(a) begins—

(i) on the day on which section 15 of the Enterprise Act
352016 comes into force, or

(ii) in the case of a person that becomes a relevant regulator
after that day, on the day on which the person becomes
a relevant regulator;

(b) is of a length determined by the relevant regulator, but is not to
40exceed 12 months.”

16 Duty to report on effect of economic growth duty

(1) After section 110 of the Deregulation Act 2015 insert—

“110A Duty under section 108: performance reports and information
requirements

(1) 5A person with regulatory functions to which section 108 applies (a
“regulator”) must prepare and publish a performance report in respect
of each reporting period.

(2) A performance report is a report about the effect of performance of the
duty under section 108(1) on the way the regulator exercised its
10functions to which that section applies (its “relevant functions”).

(3) A performance report must include—

(a) the regulator’s assessment—

(i) of the views of persons carrying on businesses about the
effect mentioned in subsection (2), and

(ii) 15of the impact on such persons of that effect;

(b) a description of the effect the regulator expects performance of
the duty under section 108(1) to have on the way it exercises its
relevant functions in future.

(4) In preparing and publishing a performance report a regulator must
20follow any guidance given from time to time by a Minister of the
Crown, unless the regulator considers that there is a good reason not to
do so.

(5) Guidance under subsection (4) may, in particular, include guidance as
to—

(a) 25information or other matters to be included in a performance
report;

(b) information to be obtained for the purposes of a performance
report;

(c) the means by which information should be obtained for the
30purposes of a performance report.

(6) A performance report must be published no later than three months
after the end of the reporting period concerned.

(7) A reporting period is a period of 12 months, except as provided by
subsection (12)(b).

(8) 35A new reporting period begins immediately after the end of each
reporting period.

(9) A regulator must give to a Minister of the Crown any information that
the Minister may from time to time request which relates to—

(a) the effect of performance of the duty under section 108(1) on the
40way the regulator performs, has performed, or is expected to
perform, its relevant functions,

(b) the views of persons carrying on businesses about the effect
mentioned in paragraph (a) or the impact on such persons of
that effect, or

(c) any aspect of a performance report in relation to which it
appears to the Minister that guidance under subsection (4) has
not been followed.

(10) A regulator is not required by this section to include in a performance
5report, or to give to a Minister of the Crown, information about the
exercise of functions in relation to a particular person.

(11) This section is subject to any express restriction on disclosure imposed
by another enactment (ignoring any restriction which allows disclosure
if authorised by an enactment).

(12) 10A regulator’s first reporting period—

(a) begins—

(i) on the day on which section 16 of the Enterprise Act
2016 comes into force, or

(ii) in the case of a person that becomes a regulator (see
15subsection (1)) after that day, on the day on which the
person becomes a regulator;

(b) is of a length determined by the regulator, but is not to exceed
12 months.”

(2) In section 111 of that Act (interpretation of sections 108 to 110)—

(a) 20in the heading and subsection (1) for “110” substitute “110A”, and

(b) in subsection (4) for “and 110” substitute “to 110A”.

Application of regulators' principles and code

17 Removal of restrictions

Omit subsection (5) of section 24 of the Legislative and Regulatory Reform Act
252006 (which prevents the regulators’ principles and code from being applied to
regulatory functions of the Gas and Electricity Markets Authority, the Office of
Communications, the Office of Rail Regulation or the Water Services
Regulation Authority).

Secondary legislation: duty to review

18 30Secondary legislation: duty to review

In section 30 of the Small Business, Enterprise and Employment Act 2015
(meaning of “provision for review” in section 28(2)(a) of that Act), in subsection
(3)—

(a) after “must” insert “so far as is reasonable”, and

(b) 35omit third “the”.

Part 3 Extension of the primary authority scheme

19 Extending the primary authority scheme under RESA 2008

(1) For Part 2 of the Regulatory Enforcement and Sanctions Act 2008 (co-

ordination of regulatory enforcement) substitute—

““Part 2 Regulatory Enforcement

Introductory

22A 5“Regulated person” and “regulated group”

(1) A person is a “regulated person” for the purposes of this Part if the
Secretary of State is satisfied that—

(a) the person carries on, or proposes to carry on, an activity, and

(b) a qualifying regulator has a relevant function which is, or
10would be, exercisable in relation to the person in respect of the
activity.

(2) A group of persons is a “regulated group” for the purposes of this Part
if the Secretary of State is satisfied that—

(a) a member of the group carries on, or proposes to carry on, an
15activity, and

(b) a qualifying regulator has a relevant function which is, or
would be, exercisable in relation to the member in respect of the
activity.

22B “Qualifying regulator”

(1) 20In this Part, “qualifying regulator” means—

(a) a local authority, or

(b) a specified regulator.

(2) In this Part, “local authority” means a local authority in England, Wales,
Scotland or Northern Ireland.

(3) 25In this Part—

(a) references to a local authority in England or Wales have the
same meaning as in Part 1;

(b) references to a local authority in Scotland are to a council
constituted under section 2 of the Local Government etc
30(Scotland) Act 1994;

(c) references to a local authority in Northern Ireland are to a
district council constituted under section 1 of the Local
Government Act (Northern Ireland) 1972.

(4) In this Part, “specified regulator” means a person (other than a local
35authority) who—

(a) has regulatory functions, and

(b) is specified for the purposes of this Part by regulations made by
the Secretary of State.

(5) Regulations under subsection (4)(b) require the consent of the Welsh
40Ministers to specify a regulator whose functions relate only to Welsh
ministerial matters.

22C “Relevant function”

(1) In this Part, “relevant function”—

(a) in relation to a local authority in England or Wales, has the same
meaning as in Part 1;

(b) 5in relation to a local authority in Scotland, means a regulatory
function exercised by that authority and specified for the
purposes of this Part by regulations made by the Secretary of
State;

(c) in relation to a local authority in Northern Ireland, means a
10regulatory function exercised by that authority and specified
for the purposes of this Part by regulations made by the
Secretary of State;

(d) in relation to a specified regulator, means a regulatory function
exercised by that regulator and specified for the purposes of this
15Part by regulations made by the Secretary of State.

(2) Regulations under subsection (1)(b) or (c) may only specify a regulatory
function—

(a) which is a relevant function for the purposes of Part 1 in relation
to local authorities in England or Wales or both, or

(b) 20which, for the purposes of local authorities in Scotland or
Northern Ireland, is equivalent to such a function.

(3) Regulations under subsection (1)(d) may only specify a regulatory
function—

(a) which is a relevant function for the purposes of Part 1 in relation
25to local authorities in England or Wales or both, or

(b) which, for the purposes of the specified regulator, is equivalent
to such a function.

(4) Regulations under subsection (1)(b) or (d) may not specify a regulatory
function so far as exercisable in Scotland, if or to the extent that the
30function relates to matters which are not reserved matters.

(5) Regulations under subsection (1)(c) or (d) may not specify a regulatory
function so far as exercisable in Northern Ireland, if or to the extent that
the function relates to matters which are transferred matters.

(6) Regulations under subsection (1)(d) require the consent of the Welsh
35Ministers to specify a regulatory function, so far as exercisable in Wales,
which relates to a Welsh ministerial matter.

(7) Regulations under subsection (1)(d) may make different provision
for—

(a) different purposes;

(b) 40different areas.

Primary authorities

23A Primary authorities for regulated persons and regulated groups

(1) For the purposes of this Part, the Secretary of State—

(a) may nominate, in relation to a regulated person, a qualifying
45regulator to be the “primary authority” for the exercise of the

partnership functions in relation to that person (a “direct
primary authority”);

(b) may nominate, in relation to a regulated group, a qualifying
regulator to be the “primary authority” for the exercise of the
5partnership functions in relation to the members of the group (a
“co-ordinated primary authority”).

(2) The “partnership functions” are the functions specified by the
nomination under subsection (1) as covered by it.

(3) A function may be so specified only if condition A or B is met.

(4) 10Condition A is that the function—

(a) is a relevant function of the primary authority, and

(b) is, or (in the case of an activity proposed to be carried on) would
be, exercisable by the primary authority in relation to the
regulated person or a member of the regulated group.

(5) 15Condition B is that the function—

(a) is a relevant function of a qualifying regulator other than the
primary authority,

(b) is, or (in the case of an activity proposed to be carried on) would
be, exercisable by that other regulator in relation to the
20regulated person or a member of the regulated group, and

(c) is equivalent to a relevant function of the primary authority.

(6) The Secretary of State may from time to time revise the specification of
partnership functions included in a nomination under subsection (1)
if—

(a) 25the requirements of subsections (3) to (5) are met in relation to
the revised specification,

(b) in the case of a nomination under subsection (1)(a), the primary
authority and the regulated person have agreed in writing to
the revision, and

(c) 30in the case of a nomination under subsection (1)(b), the primary
authority and the co-ordinator of the regulated group have
agreed in writing to the revision.

(7) This Part applies to a revised specification of partnership functions as
it applies to a specification of partnership functions under subsection
35(1); and references in this Part to the partnership functions include
partnership functions in the revised specification.

23B Nomination of primary authorities

(1) The Secretary of State may only nominate a qualifying regulator as a
direct primary authority if the regulator and the regulated person have
40agreed in writing to the nomination.

(2) The Secretary of State may only nominate a qualifying regulator as a co-
ordinated primary authority if—

(a) there is a co-ordinator of the regulated group, and

(b) the regulator and the co-ordinator have agreed in writing to the
45nomination.

(3) The Secretary of State may at any time revoke a nomination under
section 23A(1).