Enterprise and Regulatory Reform Bill

FIFTH
MARSHALLED
LIST OF AMENDMENTS
TO BE MOVED
IN GRAND COMMITTEE

The amendments have been marshalled in accordance with the Instruction of 20th November 2012, as follows—

Schedules 5 and 6
Clauses 22 to 24
Schedule 7
Clauses 25 and 26
Schedule 8
Clauses 27 and 28
Schedule 9
Clause 29
Schedule 10
Clause 30
Schedule 11
Clauses 31 and 32
Schedule 12
Clauses 33 to 35
Schedule 13
Clauses 36 to 45
Schedule 14
Clauses 46 to 49
Schedule 15
Clauses 50 to 52
Schedule 16
Clauses 53 to 55
Schedule 17
Clauses 56 to 63
Schedules 18 and 19
Clause 64
Schedule 20
Clauses 65 to 68
Schedule 21
Clauses 69 to 80

[Amendments marked * are new or have been altered]

Schedule 5

LORD MARLAND

24C

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

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

24D

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

24E

Page 119, line 8, at end insert—

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

Clause 22

LORD WHITTY

BARONESS HAYTER OF KENTISH TOWN

24F

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,”

BARONESS HAYTER OF KENTISH TOWN

LORD WHITTY

24G

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.”

LORD WHITTY

BARONESS HAYTER OF KENTISH TOWN

24H

Page 14, line 34, at end insert “, or

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

24J

Page 15, line 14, at end insert—

“(4A) 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.

(4B) 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.

(4C) 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).

(4D) 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.

(4E) 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.”

After Clause 22

LORD WHITTY

BARONESS HAYTER OF KENTISH TOWN

24K

Insert the following new Clause—

“Powers to reverse transfers

(1) Where regulations are made under section 22(4A) to transfer consumer functions, duties and responsibilities to other statutory bodies or to non- statutory bodies, those regulations shall also stipulate powers to require the return of those functions either to the CMA or to the Secretary of State, subject to subsections (2) and (3).

(2) Those regulations shall also require the Secretary of State to carry out at least every five years a review of any transfer to other bodies under section 22(4A) 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.

(3) A negative finding from such a review under subsection (2) will be necessary before the Secretary of State uses the powers to reverse a transfer under subsection (1).”

Before Clause 23

LORD WHITTY

24L

Insert the following new Clause—

“Completed mergers

(1) Section 22 of the Enterprise Act 2002 (“the 2002 Act”), (duty to make references in relation to completed mergers) is amended as follows.

(2) After subsection (1) insert—

“(1A) When considering whether or not a situation results in a substantial lessening of competition for the purposes of subsection (1) above, the CMA shall take into account—

(a) the long term ability of the merged entity to compete effectively; and

(b) the likely long term effect on consumers.””

Clause 23

LORD WHITTY

BARONESS HAYTER OF KENTISH TOWN

24M

Page 16, line 10, at end insert—

“(c) assisting the CMA to assess information relating to mergers or prospective mergers provided to the CMA by organisations entitled to bring super-complaints, whether or not in the form of a formal super-complaint.”

After Clause 23

LORD WHITTY

BARONESS HAYTER OF KENTISH TOWN

24N

Insert the following new Clause—

“Mergers in the regulated financial services sectors

In respect of mergers or proposed mergers in the regulated financial services sectors, the criteria for thresholds shall be more than 25% of a defined market of any financial service sector or more than 15% of two or more markets where the merger or proposed merger cover more than one financial market.”

Clause 24

LORD WHITTY

BARONESS HAYTER OF KENTISH TOWN

24P

Page 19, line 23, at end insert—

“( ) The provisions of section 23 relating to mergers and prospective mergers in the media and financial services sectors shall also apply to the provisions in this section on interim measures.”

Clause 25

VISCOUNT ECCLES

24PA*

Page 20, leave out lines 20 to 25

Clause 26

LORD WHITTY

24Q

Page 21, line 39, at end insert—

“(3) Subject to the time limits set out in Schedule 8, the Board of the CMA shall make procedural arrangement for the operation of investigations and references conducted by the CMA.”

VISCOUNT ECCLES

 

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

After Clause 26

LORD HUNT OF WIRRAL

VISCOUNT ECCLES

25

Insert the following new Clause—

“Small mergers

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.””

Schedule 8

LORD WHITTY

25ZA

Page 190, line 6, leave out from beginning to end of line 15 on page 191

25ZB

Page 192, leave out lines 4 to 41

25ZC

Page 194, line 10, leave out from beginning to end of line 12 on page 196

LORD MARLAND

25A

Page 195, line 32, at end insert—

“( ) omit paragraph (b),”

LORD WHITTY

 

Lord Whitty gives notice of his intention to oppose the Question that Schedule 8 be the Eighth Schedule to the Bill.

Clause 27

LORD WHITTY

BARONESS HAYTER OF KENTISH TOWN

25B

Page 22, line 22, at end insert—

“(5) In a “cross-market reference” the key concern will be whether the practice or practices identified in the reference cause significant consumer detriment.

(6) In the case of a “cross-market reference”, the markets identified as the most likely areas for occurrence of the potential cross-market problem at the launch of the investigation may be extended to other markets if prima facie evidence suggests the possibility of the same practices arising in those markets.”

Schedule 9

LORD WHITTY

BARONESS HAYTER OF KENTISH TOWN

25C

Page 196, line 38, after “competition” insert “to the detriment of consumers”

25D

Page 197, line 8, after “competition” insert “to the detriment of consumers”

25E

Page 197, line 24, after “competition” insert “to the detriment of consumers”

Clause 29

LORD WHITTY

BARONESS HAYTER OF KENTISH TOWN

25EA*

Page 27, line 34, at end insert—

“(12) Before making a full public interest intervention in media and newspaper markets, the Secretary of State shall consult all relevant parties as to the arguments for or against an investigation and shall publish the reasons for reaching such a decision.”

LORD WHITTY

 

Lord Whitty gives notice of his intention to oppose the Question that Clause 29 stand part of the Bill.

Clause 30

LORD WHITTY

25F

Page 28, line 30, at end insert—

“(d) assisting the CMA in assessing complaints brought to them by bodies designated as super-complaint bodies, including complaints which are not formally super-complaints.”

LORD BERKELEY

LORD BRADSHAW

 

The above-named Lords give notice of their intention to oppose the Question that Clause 30 stand part of the Bill.

After Clause 30

LORD WHITTY

25G

Insert the following new Clause—

“Super-complaints

Super-complaints

(1) Section 183 of the 2002 Act is amended as follows.

(2) In subsection (1)(b) after “him” insert “except for organisations representing businesses with fewer than 50 employees or a number to be set by an order of the Secretary of State”.”

Schedule 11

LORD WHITTY

25H

Page 213, line 24, leave out “£30,000” and insert “10% of the company’s revenue for the previous year, or £30,000 whichever is the higher”

25J

Page 213, line 26, leave out “£15,000” and insert “10% of the company’s revenue or £15,000 whichever is the higher”

25K

Page 213, line 28, after “£30,000” insert “or 10% of the company’s revenue for the previous year whichever is the higher”

25L

Page 213, line 29, at end insert “or 10% of the company’s revenue for the previous year whichever is the higher”

Clause 31

LORD WHITTY

25M

Page 29, line 33, leave out “relevant” and insert “CMA or local”

25N

Page 29, line 35, leave out “relevant” and insert “CMA or local”

25P

Page 29, line 41, leave out “relevant” and insert “CMA or local”

25Q

Page 30, line 4, leave out “relevant” and insert “CMA or local”

25R

Page 30, line 6, leave out “relevant” and insert “CMA or local”

25S

Page 30, line 13, leave out “relevant” and insert “CMA or local”

Schedule 12

LORD WHITTY

25T

Page 216, line 16, leave out “6” and insert “4”

25U

Page 216, line 20, leave out “12” and insert “6”

25V

Page 217, line 1, leave out “6” and insert “4”

25W

Page 217, line 4, leave out “12” and insert “6”

Clause 33

LORD WHITTY

25X

Page 31, line 40, leave out from beginning to end of line 2 on page 32

25Y

Page 32, line 2, at end insert—

“( ) Nothing in this section shall be taken as overriding the regulations protecting whistleblowers in the Employment Rights Act as amended by any subsequent legislation.”

Clause 34

VISCOUNT ECCLES

26

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

Clause 36

LORD BERKELEY

LORD BRADSHAW

26A

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

LORD WHITTY

26AA

Page 35, line 5, at end insert—

“( ) There shall be a Memorandum of Understanding between the CMA and the Civil Aviation Authority to ensure co-operation on matters under this Part of the Act in sectors regulated by the Civil Aviation Authority.”

Clause 37

LORD WHITTY

26AB

Page 36, line 10, leave out “significant” and insert “serious”

Clause 40

LORD WHITTY

 

Lord Whitty gives notice of his intention to oppose the Question that Clause 40 stand part of the Bill.

Clause 41

LORD WHITTY

26AC

Page 37, line 16, leave out subsections (4) and (5)

Clause 45

LORD WHITTY

BARONESS HAYTER OF KENTISH TOWN

26AD

Page 41, line 20, at end insert—

“(1A) After subsection (3) insert—

“(3A) In cases where functions are exercisable concurrently by two or more competent persons, a sectoral regulator must make an early determination on whether a particular issue requires referral to the CMA.

(3B) Where the lead regulator has been determined under subsection (3A), either the sectoral regulator or the CMA then has the sole responsibility to undertake a detailed market investigation, and propose remedies itself.””

After Clause 45

LORD MARLAND

26B*

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.

(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.”

LORD WHITTY

BARONESS HAYTER OF KENTISH TOWN

[Amendments 26BA to 26BC are amendments to Amendment 26B]

26BA*

Line 21, at end insert—

“(g) the Financial Conduct Authority”

26BB*

Line 21, at end insert—

“(3A) Before making an order under subsection (1), the Secretary of State must identify his reasons for making such an order including any adverse criticism of the performance in general or in particular of the regulator concerned.”

26BC*

Line 22, at end insert “consider any periodic report by the CMA on the conduct of their competition duties and any other relevant reports by the sector regulator or others; and must”

LORD WHITTY

BARONESS HAYTER OF KENTISH TOWN

26BD

Insert the following new Clause—

“Relations between CMA and sector regulators

(1) The CMA will act in cooperation with the sector regulators as defined in section 45 in relation to the respective CMA completion powers and those of each of the sector regulators.

(2) In accordance with subsection (1), a memorandum of understanding shall be drawn up with each of the sector regulators, and those memoranda shall, amongst other things, provide in appropriate circumstances for—

(a) sharing of information;

(b) joint working;

(c) joint investigation;

(d) joint legal action,

and for avoidance as far as possible of unnecessary duplication of effort.

(3) The CMA may, with the agreement of the Secretary of State, take over responsibilities of a sector regulator in particular circumstances where it appears to the CMA and to the Secretary of State that there would be advantage in the CMA taking over the case or investigation from the sector regulator in terms of benefit to consumers or enhancement of competition.

(4) The CMA shall conduct at periodic intervals a review of the performance of each of the sector regulators as regards use of their competition powers.

(5) The CMA may ask the Secretary of State to take over from a sectoral regulator a particular case or series of cases, or use of particular competition or consumer powers.

(6) The Secretary of State may by order require the CMA to take over cases or the use of powers from a sector regulator.

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

(8) For the purposes of this sector, 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) the Financial Conduct Authority, and for certain purposes relating to market structure, the Prudential Regulation Authority.”

Clause 46

LORD WHITTY

26BE

Page 42, line 13, at end insert—

“(1) There shall be established a separate section of the CMA where the CMA acts as an appeal body in respect of decisions of sectoral regulators, and each individual appeal shall be headed by a member of the CMA Board.

(2) ”

Clause 48

LORD WHITTY

26BF

Page 43, line 37, at end insert—

“(d) sections 33, 34, 36, 38 and 39 (anti-trust procedures),

(e) section 41 (cartels)”

Schedule 15

LORD MARLAND

26C

Page 231, line 38, leave out “Omit”

26D

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”.”

Clause 50

BARONESS HAYTER OF KENTISH TOWN

LORD MITCHELL

26E

Page 44, line 13, at end insert—

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

Clause 52

LORD MARLAND

26F

Page 47, leave out lines 25 and 26 and insert—

“( ) providing for any of the following, as they apply for the purposes of provisions mentioned in paragraph (f), to apply with any modifications consequential on provision made under that paragraph—

(i) sections 30 to 37;

(ii) sections 62 and 63;

(iii) Parts 3 and 4;

(iv) Schedule 3.”

Clause 53

LORD MARLAND

26G

Page 52, line 14, leave out “the application for” and insert “issue of”

26H

Page 52, leave out lines 15 to 18 and insert—

“( ) Works for which a certificate is issued under this section are to be conclusively presumed to be lawful, provided that—

(a) they are carried out within 10 years beginning with the date of issue of the certificate, and

(b) the certificate is not revoked under section 26I.”

26J

Page 53, line 27, leave out “by an order”

26K

Page 53, line 34, leave out “by an order made by the Secretary of State”

26L

Page 53, line 36, leave out “by such an order”

Schedule 17

LORD MARLAND

26M

Page 239, line 38, at end insert—

“ In section 108 (compensation for refusal or conditional grant of planning permission formerly granted by order) after subsection (3E) insert—

“(3F) This section does not apply to the extent that the development referred to in subsection (1)(b) would, while permitted by a development order, have required conservation area consent under the Planning (Listed Buildings and Conservation Areas) Act 1990.””

26N

Page 242, line 36, at end insert—

“ In section 92(2)(b) (application to Isles of Scilly), after “Schedules 1, 2” insert “, 2A”.”

26P

Page 242, line 37, leave out paragraph 16 and insert—

“ In section 93(5) (orders subject to affirmative procedure), after “section” insert “26C,”.”

Clause 56

BARONESS TURNER OF CAMDEN

27

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

28

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

Clause 57

BARONESS THORNTON

LORD LESTER OF HERNE HILL

BARONESS TURNER OF CAMDEN

LORD LOW OF DALSTON

 

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

Clause 58

BARONESS THORNTON

LORD LESTER OF HERNE HILL

BARONESS TURNER OF CAMDEN

LORD LOW OF DALSTON

 

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

Clause 60

BARONESS GREENGROSS

 

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

Clause 61

BARONESS TURNER OF CAMDEN

LORD MCKENZIE OF LUTON

 

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

Before Clause 65

LORD LUCAS

28A

Insert the following new Clause—

“Ownership of licences to copyright

(1) Any natural person who acquires, for value and for his personal use only, the right to use a copyright may, for value or otherwise, transfer that right to any other person.

(2) Any terms in any contract that purport to forbid, place restrictions on or require payment for a transfer under subsection (1) shall be null and void.

(3) Any person who in any way controls the use of a copyright must do all things necessary, without undue delay and without recompense, to effect a transfer under subsection (1) above.”

28B

Insert the following new Clause—

“Fair use

(1) A person in legal possession of a licence to use or enjoy copyright material may freely make copies of that material for the purposes of—

(a) backup;

(b) the enjoyment of the copyright material in alternative media to the one for which the copyright was licenced.

(2) A person may not, without express permission, make a copy made under subsection (1) above available to any other person.”

Clause 68

LORD HOWARTH OF NEWPORT

29

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

Prepared 17th December 2012