Enterprise and Regulatory Reform Bill

Page 10, line 14, at end insert—

“(1A) Subsection (1) does not apply where an insolvency office holder has been appointed to the employer company in any of the capacities specified in section 388(1)(a), (2)(a), (2A)(a) and (2A)(b) of the Insolvency Act 1986.”

Page 10, leave out lines 20 to 25

Page 11, line 9, at end insert—

““aggravating features” includes a failure or failures by an employer to follow its own grievance or disciplinary procedures (or both), or, where an employer does not have its own grievance or disciplinary procedures, the ACAS code of practice on disciplinary and grievance procedures; or a failure by an employer to provide any adequate training to its managers in grievance and disciplinary procedures;”

Page 11, line 45, at end insert—

“(d) amend this section by adding to the list of matters which amount to aggravating features”

Page 11, line 47, at end insert—

“(11) Any money paid by an employer purporting to meet a liability to pay a penalty under this section shall be treated instead as payment of any financial award on a claim against that employer to the extent that any such award has not been paid.”

Page 11, line 47, at end insert—

“(11) Where an employment tribunal makes a financial award against an employer on a claim, that tribunal must also specify a date by which that award must be paid.

(12) A date specified under subsection (11) shall be no later than one month following the date on which the decision was made.

(13) The Secretary of State shall introduce an order providing for the payment of interest by an employer on any award that remains unpaid after the date specified under subsection (11).

(14) Any interest levied under subsection (13) shall be paid to the worker to which the claim has been awarded.”

Page 11, line 49, at end insert—

“(3) After paragraph 5A of Schedule 1 (matters for determining unfitness of directors) of the Company Directors Disqualification Act 1986, insert—

“(5B) The extent of the director’s responsibility where, in determining a claim involving the company and a worker, an employment tribunal—

(a) concludes that the company has breached any of the worker’s rights to which the claim relates, and

(b) is of the opinion that the breach has one or more aggravating features.””

Page 12, line 4, leave out from “subsection” to end of line 5 and insert “(1)(b), after “any legal obligation to which that person is subject,”, insert “other than a private contractual obligation which is owed solely to that worker”.”

Page 12, line 5, at end insert —

“(2) Section 43K of that Act (extension of meaning of “worker”) is amended as set out in subsections (3) to (8).

(3) In subsection (1)(ba)—

(a) for “section 84 or 100 of” substitute “section 83(2), 84, 92, 100, 107, 115(4), 117 or 134 of, or Schedule 12 to,”;

(b) for “section 42 or 57 of” substitute “section 41(2)(b), 42, 50, 57, 64 or 92 of, or Schedule 7 to,”;

(c) omit the words after “the National Health Service (Wales) Act 2006”.

(4) In subsection (1)(bb), after “section 17J” insert “or 17Q”.

(5) In subsection (1)(c)—

(a) for the words before “in accordance with arrangements” substitute “works or worked as a person providing services”;

(b) in sub-paragraph (ii), after “section” insert “2C, 17AA, 17C,”.

(6) Omit subsection (1)(ca) and the preceding “or”.

(7) Omit subsection (2)(ba).

(8) After subsection (3) insert—

“(4) The Secretary of State may by order make amendments to this section as to what individuals count as “workers” for the purposes of this Part (despite not being within the definition in section 230(3)).

(5) An order under subsection (4) may not make an amendment that has the effect of removing a category of individual unless the Secretary of State is satisfied that there are no longer any individuals in that category.”

(9) In section 236(3) of that Act (orders etc subject to affirmative resolution procedure), after “shall be made under section” insert “43K(4),”.

(10) In consequence of the amendments made by subsections (6) and (7), omit paragraph 7(a)(ii) and (b) of the Schedule to the Smoking, Health and Social Care (Scotland) Act 2005 (Consequential Modifications) (England, Wales and Northern Ireland) Order 2006 (S.I.2006/1056).

(11) Until the coming into force of the repeal (made by Schedule 3 to the Smoking, Health and Social Care (Scotland) Act 2005 (asp 13)) of sections 27 to 28 of the National Health Service (Scotland) Act 1978 (“the 1978 Act”), section 43K(1)(c)(ii) of the Employment Rights Act 1996 has effect as if it included a reference to section 27A of the 1978 Act.”

Baroness Turner of Camden gives notice of her intention to oppose the Question that Clause 15 stand part of the Bill.

Insert the following new Clause—

“Duty on employers to prevent detriment caused by others to workers who have made protected disclosures

(1) The Secretary of State shall make regulations requiring an employer, where a worker has made a protected disclosure under section 43A of the Employment Rights Act 1996, to take reasonable steps to ensure that the worker is not subjected to any detriment by any act, or any deliberate failure to act, by a person other than his employer done on the ground that the worker has made the disclosure.

(2) Regulations under this section—

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

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

Insert the following new Clause—

“Removal of requirement for protected disclosures to be made in good faith

(1) The Employment Rights Act 1996 is amended as follows.

(2) In section 43C(1) (disclosure to employer or other responsible person), omit “in good faith”.

(3) In section 43E(b) (disclosure to Minister of the Crown), omit “in good faith”.

(4) In section 43F(1)(a) (disclosure to prescribed person), omit “in good faith”.

(5) In section 43G (disclosure in other cases), in subsection (1)(a) omit “makes the disclosure in good faith” and in paragraph (b) leave out “he”.

(6) In section 43H (disclosure of exceptionally serious failure), in subsection (1)(a) omit “makes the disclosure in good faith” and in paragraph (b) leave out “he”.”

Insert the following new Clause—

“Protected disclosure: blacklisting

(1) Section 2 of the Public Interest Disclosure Act 1998 (right not to suffer detriment) is amended as follows.

(2) After inserted subsection (1), insert—

“(1A) A person has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by an employer on the ground that they have made a protected disclosure.

(1B) Actions under subsection (1A) by a employer relate to—

(a) arrangements made for deciding to whom to offer employment;

(b) the terms on which an employment offer is made;

(c) failure to offer employment.””

Insert the following new Clause—

“Disclosures exempt from confidentiality duties: supplementary provisions

After section 203(3)(f) of the Employment Rights Act 1996 (restrictions on contracting out), insert—

“(g) the employee or worker must be advised of their rights under section 43J of the Employment Rights Act 1996”.”

Insert the following new Clause—

“Review of the Public Interest Disclosure Act 1998

(1) Immediately following commencement of this Act, the Secretary of State shall commission a review of the Public Interest Disclosure Act 1998.

(2) A review conducted under subsection (1) shall consider issues including—

(a) the adequacy of protection for individuals making a disclosure;

(b) the extent to which the Act encourages disclosures made in the public interest and good governance in organisations; and

(c) extension to other areas of wrongdoing and individuals.

(3) A review conducted under subsection (1) must report to Parliament within 12 months following commencement of this Act.”

Insert the following new Clause—

“Proceedings in public interest disclosure cases

(1) After section 8 of the Employment Tribunals Act 1996 (procedure in contract cases), insert—

“8A Publication of information

(1) Where proceedings include a claim under the Public Interest Disclosure Act 1998, the president shall, within 28 days of receipt of the claim, publish electronically and without charge the names of the parties and the relevant regional office.

(2) A person who is not a party to those proceedings may obtain from the tribunal a copy of such documents from the proceedings as he may obtain under the Civil Procedure Rules where proceedings are brought in a court.

(3) In this section, “President” has the same meaning as in section 7A(3).”.”

Insert the following new Clause—

“Personal liability for victimisation on the ground that a worker has made a protected disclosure

After section 47B of the Employment Rights Act insert—

“47BA Liability of employees and agents

(1) A worker has the right not to be subjected to any detriment by any act by an employee or agent of his employer, done on the ground that the worker has made a protected disclosure and it does not matter whether in any proceedings the employer is found not to have contravened this Act by virtue of section 47BB(4).

(2) A does not contravene this section if—

(a) A relies on a statement by the employer or principal that doing that thing is not a contravention of this Act, and

(b) it is reasonable for A to do so.

47BB Liability of employers and principals

(1) Anything done by person A in the course of A’s employment must be treated as also done by the employer.

(2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.

(3) It does not matter whether that thing is done with the employer’s or principal’s knowledge or approval.

(4) In proceedings against A’s employer B in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A—

(a) from doing that thing, or

(b) from doing anything of that description.””

Insert the following new Clause—

“Restriction of good faith test to consideration of remedies

(1) The Employment Rights Act 1996 is amended as follows.

(2) In section 43C(1) (disclosure to employer or other responsible person), omit “in good faith”.

(3) In section 43E(b) (disclosure to Minister of the Crown), omit “in good faith”.

(4) In section 43F(1)(a) (disclosure to prescribed person), omit “in good faith”.

(5) In section 43G (disclosure in other cases), for subsection (1) substitute—

“(1) A qualifying disclosure is made in accordance with this section if—

(a) the worker making the disclosure reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(b) he does not make the disclosure for purposes of personal gain,

(c) any of the conditions in subsection (2) is met, and

(d) in all the circumstances of the case, it is reasonable for him to make the disclosure.”

(6) In section 43G(2) (disclosure in other cases), for “in subsection (1)(d)” substitute “in subsection (1)(c)”.

(7) In section 43G(3) (disclosure in other cases), for “in subsection (1)(e)” substitute “in subsection (1)(d)”.

(8) In section 43H (disclosure of exceptionally serious failure), for subsection (1) substitute—

“(1) A qualifying disclosure is made in accordance with this section if—

(a) the worker making the disclosure reasonably believes that the information disclosed, and any allegation contained in it, are substantially true,

(b) he does not make the disclosure for purposes of personal gain,

(c) the relevant failure is of an exceptionally serious nature, and

(d) in all the circumstances of the case, it is reasonable for him to make the disclosure.”

(9) In section 43H(2) (disclosure of exceptionally serious failure), for “subsection (1)(e)” substitute “subsection (1)(d)”.

(10) In section 49 (remedies), after subsection (2) insert—

“(2A) In any claim for breach of section 43B, the employment tribunal may reduce the amount of compensation by up to 25% where it is proved that the complainant did not make the protected disclosure in good faith.”

(11) In section 123 (compensatory awards), after subsection (8) insert—

“(8A) In claims brought under section 103A, the employment tribunal may reduce the amount of the compensatory award by up to 25% where it is proved that the complainant did not make the protected disclosure in good faith.”.”

Page 12, line 15, at end insert—

“(aa) where the claimant, on the advice of the Judge, withdraws a part or the whole of the claim, any deposit shall be repaid”

The above-named Lords give notice of their intention to oppose the Question that Clause 18 stand part of the Bill.

Page 14, line 10, after “competition,” insert “including actions to reduce cartels, monopolies and monopsonies,”

Page 14, line 11, at end insert—

“( ) The CMA shall have responsibility for the strategic direction of all statutory consumer support including—

(a) advocacy,

(b) education,

(c) advice,

(d) enforcement of redress

(e) guidance, and

(f) consumer protection,

as it relates to competition and fair trading, taking particular account of the interests of vulnerable consumers.”

The above-named Lords give notice of their intention to oppose the Question that Clause 20 stand part of the Bill.

Page 87, line 22, leave out sub-paragraph (iii)

Page 87, line 22, at end insert—

“(1A) Appointment of a person as chair under sub-paragraph (1)(a) shall be subject to approval by a Select Committee of Parliament.”

Page 87, line 22, at end insert—

“(1A) In making an appointment under sub-paragraph (1)(a), the Secretary of State must be satisfied that that person has demonstrated an understanding of the impact of competition, and its absence, on consumers, and in particular on vulnerable consumers, as well as relevant experience in wholesale and retail markets.”

Page 87, line 27, leave out sub-paragraph (4)

Page 87, line 35, at end insert—

“(8) Of the persons appointed to membership of the CMA Board under sub-paragraph (1)(b), at least one must have expertise as a representative of consumers.”

Page 88, line 26, at end insert—

“(4) No member of the CMA shall receive remuneration that is any more than 20 times that of a full time employee of the CMA.

(5) No person shall hold any position set out in paragraphs 1(1) and 9(1) (the “chief executive”) for longer than a period of three months without being in the direct employment of the CMA.”

Page 89, line 31, at end insert—

“11A (1) The CMA shall have a unit dedicated to matters affecting relating to competition issues amongst affecting small and medium-sized enterprises.

(2) Such a unit will pay particular focus to the availability of finance to small and medium-sized enterprises.”

Page 89, line 39, at end insert—

“(c) set out the consumer benefit which will be achieved as a result of the objectives and priorities as set out in paragraph (a)”

Page 90, line 26, at end insert—

“(f) an assessment of the adequacy of staff skills in relation to the performance of the CMA’s functions;

(g) an estimate of the resource needed adequately to perform its functions for the two financial years following the year in which the annual report in sub-paragraph (1) refers.”

Page 90, line 26, at end insert—

“(2A) The first annual report of the CMA following enactment must include an assessment of transition costs in both financial and competition terms, including a comparison of the speed of completion of referrals relative to the 3 years prior to the establishment of the CMA.”

Page 91, line 27, at the end insert—

“(h) the Financial Conduct Authority;

(i) the Prudential Regulation Authority (for market structure issues).”

Page 91, line 27, at end insert—

16A (1) The CMA must make arrangements for ascertaining information with regards to—

(a) the state of public opinion about the manner in which financial services are provided to consumers;

(b) consumer experiences of consumers in relation to the provision of financial services, including—

(i) handling of complaints by financial institutions, and

(ii) resolution of disputes with financial institutions.

(2) The CMA shall consult concurrent regulators where necessary.

(3) The CMA shall publish the conclusions from research carried out under sub-paragraph (1) every two years.

(4) The CMA shall report to the Secretary of State its conclusions and any recommendations arising from research carried out under sub-paragraph (1) every 2 years.

(5) The Secretary of State shall publish a response to any such report within 60 days and lay a copy of that response before Parliament.

(6) This section does not restrict the CMA’s power to make any arrangements that it considers to be incidental or conducive to the carrying out of any of its functions.”

Page 91, line 27, at end insert—

16A (1) The CMA must make arrangements for ascertaining—

(a) the level of competition in the financial services sector, and

(b) the effects of that level on—

(i) the availability of finance to small and medium-sized enterprises;

(ii) the availability of finance to high growth businesses;

(iii) the availability of finance to businesses in general.

(2) In conducting research under sub-paragraph (1), the CMA shall consult concurrent regulators where necessary.

(3) The CMA shall publish the conclusion from research carried out under sub-paragraph (1) to the Secretary of State every two years.

(4) The CMA shall report to the Secretary of State its conclusions and any recommendations arising from research carried out under sub-paragraph (1) every 2 years.

(5) The Secretary of State shall publish a response to any such report within 60 days and lay a copy of that response before Parliament.”

Page 95, line 20, at end insert—

“(f) at least three persons (“specialist consumer competition panel members”) appointed to the CMA panel under paragraph 1(1)(b) for the purpose of being available for selection as members of a group constituted to carry out specialist consumer competition functions on behalf of the CMA;

(g) at least three persons (“specialist financial services competition panel members”) appointed to the CMA panel under paragraph 1(1)(b) for the purpose of being available for selection as members of a group constituted to carry out specialist financial services competition functions on behalf of the CMA.”

The above-named Lords give notice of their intention to oppose the Question that Clause 21 stand part of the Bill.

Page 115, line 19, at end insert “, and

(b) for “Commission” substitute “CMA”.

Page 115, line 22, leave out sub-paragraph (5)

Page 119, line 8, at end insert—

“( ) In subsection (1), in the words before paragraph (a), for “Commission” substitute “CMA”.

Page 14, line 28, after “CMA,” insert—

“(ba) the transfer of functions from the Competition Commission or the Office of Fair Trading to another statutory body or a non statutory body,”

Page 14, line 29, at end insert—

“( ) Responsibility for all duties under section 6 of the Enterprise Act 2002 transferred to a non-statutory body shall be transferred to the CMA.”

Page 14, line 34, at end insert “, or

(c) another statutory body or a non-statutory body”

Page 15, line 18, at end insert—

“(5A) The Secretary of State may make regulations to transfer functions, duties and responsibilities of the OFT under sections 6 and 8 of the 2002 Act (as amended by this Act) to non statutory bodies or other statutory bodies that—

(a) the regulations so made have been approved by vote of both Houses of Parliament; and

(b) there is a transfer of resources commensurate with the functions, duties and responsibilities transferred under this subsection.

(5B) In subsection (5A) “non statutory bodies or other statutory bodies” shall include (but not exclusively) local authorities, the National Trading Standards Board and the Citizens Advice Bureau.

(5C) Regulations made under subsection (5A) shall also stipulate powers to require the return of those functions either to the CMA or to the Secretary of State, subject to subsection (5A)(a) and (b).

(5D) Regulations made under subsection (5A) must make provision for the Secretary of State to carry out a review at least every five years of any transfer to other bodies under subsection (5A) as to whether those functions, duties and responsibilities have been carried out effectively by the transferee body; and that the transferee body and other relevant parties will be consulted over such a review.

(5E) A negative finding from a review conducted under subsection (5D) will be necessary before the Secretary of State uses the powers to reverse a transfer under this section.”

Viscount Eccles gives notice of his intention to oppose the Question that Clause 26 stand part of the Bill.

Insert the following new Clause—

Small mergers

(1) Section 23 of the 2002 Act (relevant merger situations) is amended as follows.

(2) After subsection (9) insert—

“(10) A relevant merger situation shall not be created where the value of the turnover in the United Kingdom of the enterprise being taken over does not exceed £5 million.””

Page 195, line 32, at end insert—

“( ) omit paragraph (b),”

Lord Berkeley gives notice of his intention to oppose the Question that Clause 30 stand part of the Bill.

Page 32, line 7, leave out from beginning to end of line 11 on page 33

Page 34, line 32, leave out subsection (4)

Insert the following new Clause—

“Power to remove concurrent competition functions of sectoral regulators

(1) The Secretary of State may by order made by statutory instrument amend any enactment so as to remove from a sectoral regulator either or both of the following—

(a) all the functions of the regulator under Part 1 of the 1998 Act that are exercisable concurrently by the regulator and the Competition and Markets Authority (“the CMA”) or that would be so exercisable but for provision made by virtue of section 54(5)(e) of that Act;

(b) all the functions of the regulator under Part 4 of the 2002 Act that are exercisable concurrently by the regulator and the CMA.

(2) An order under subsection (1) may make such other amendments of any enactment as the Secretary of State considers appropriate in consequence of the removal of the functions.

(3) Each of the following is a sectoral regulator—

(a) the Office of Communications;

(b) the Gas and Electricity Markets Authority;

(c) the Water Services Regulation Authority;

(d) the Office of Rail Regulation;

(e) the Northern Ireland Authority for Utility Regulation;

(f) the Civil Aviation Authority;

(g) Monitor.

(4) Before making an order under subsection (1), the Secretary of State must consult—

(a) the regulator whose functions would be removed by the order,

(b) any bodies who appear to the Secretary of State to represent the interests of persons in respect of whom those functions are exercisable (“regulated providers”),

(c) any bodies who appear to the Secretary of State to represent the interests of persons who use the services supplied by regulated providers,

(d) the CMA,

(e) where the regulator is the Office of Rail Regulation, the Scottish Ministers,

(f) where the regulator is the Northern Ireland Authority for Utility Regulation, the Department of Enterprise, Trade and Investment in Northern Ireland and the Department for Regional Development in Northern Ireland,

(g) where the regulator is the Water Services Regulation Authority, the Welsh Ministers, and

(h) in any case, such other persons as the Secretary of State considers appropriate.

(5) An order under this section may include transitional, transitory or saving provision.

(6) A statutory instrument containing an order under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(7) In this section—

“amend” includes repeal or revoke;

“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,

(c) an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales, and

(d) an enactment contained in, or in an instrument made under, Northern Ireland legislation.

(8) The references to the CMA in subsections (1) and (4) are to be read, in relation to any time before the commencement of section 20(3), as references to the Office of Fair Trading.”

Page 231, line 38, leave out “Omit”

Page 231, line 39, at end insert “is amended as follows.

( ) Omit subsections (1) to (3).

( ) In subsection (4), omit “or subsection (3)(a) above”.

( ) In the heading, for “sections 25 and 31” substitute “section 25”.”

Page 44, line 13, at end insert—

““consumers” includes small businesses, up to 50 employees in size”

Page 54, line 40, leave out paragraph (a)

Page 55, line 2, leave out subsection (2)

The above-named Lords give notice of their intention to oppose the Question that Clause 57 stand part of the Bill.

The above-named Lords give notice of their intention to oppose the Question that Clause 58 stand part of the Bill.

Baroness Greengross gives notice of her intention to oppose the Question that Clause 60 stand part of the Bill.

The above-named Lords give notice of their intention to oppose the Question that Clause 61 stand part of the Bill.

Page 64, line 12, after “paid” insert “if deemed required”