Enterprise and Regulatory Reform Bill

TENTH
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—

Clause 68
Schedule 21
Clauses 69 to 80

[Amendments marked * are new or have been altered]

Clause 68

LORD HOWARTH OF NEWPORT

29

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

LORD CLEMENT-JONES

LORD STEVENSON OF BALMACARA

30

Page 64, line 12, after “paid” insert “including remuneration”

31

Page 64, line 20, at end insert—

“( ) The regulations must make provision for determining the rights and obligations of any person if a work ceases to qualify as an orphan work (or ceases to qualify by reference to any copyright owner), or if a copyright owner or an exclusive licensee exercises the right referred to in section 116B(3) while a licence is in force.”

32

Page 64, leave out lines 23 to 27

VISCOUNT YOUNGER OF LECKIE

32A

Page 65, line 2, leave out “that amend an enactment”

32B

Page 65, leave out lines 5 and 6

LORD CLEMENT-JONES

 

Lord Clement-Jones gives notice of his intention to oppose the Question that Clause 68 stand part of the Bill.

After Clause 68

LORD CLEMENT-JONES

LORD STEVENSON OF BALMACARA

33

Insert the following new Clause—

“Greater protection for authors when assigning or licensing copyright

In paragraph 1(c) of Schedule 1 to the Unfair Contract Terms Act 1977, omit “copyright”.”

Schedule 21

VISCOUNT YOUNGER OF LECKIE

33A

Page 255, leave out lines 1 to 6 and insert—

“(2) The regulations may provide that, if a licensing body fails to adopt such a code of practice, any code of practice that is approved for the purposes of that licensing body by the Secretary of State, or by a person designated by the Secretary of State under the regulations, has effect as a code of practice adopted by the body.

(3) The regulations must provide that a code is not to be approved for the purposes of provision under sub-paragraph (2) unless it complies with criteria specified in the regulations.”

BARONESS BUSCOMBE

LORD CLEMENT-JONES

LORD STEVENSON OF BALMACARA

34

Page 255, leave out lines 7 to 13

BARONESS BUSCOMBE

LORD CLEMENT-JONES

35

Page 255, line 14, leave out “Licensing code”

36

Page 255, line 16, leave out “licensing code”

37

Page 255, line 20, leave out “licensing code”

38

Page 255, line 26, leave out “licensing code”

39

Page 255, line 28, leave out “licensing code”

40

Page 255, line 31, leave out “licensing code”

41

Page 255, line 34, leave out “licensing code”

42

Page 255, line 36, leave out “licensing code”

BARONESS BUSCOMBE

LORD CLEMENT-JONES

LORD STEVENSON OF BALMACARA

43

Page 256, leave out lines 1 to 5

BARONESS BUSCOMBE

LORD CLEMENT-JONES

44

Page 256, line 35, at end insert “on a licensing body”

45

Page 256, leave out lines 36 to 38

BARONESS BUSCOMBE

LORD CLEMENT-JONES

VISCOUNT YOUNGER OF LECKIE

46

Page 256, line 39, leave out “may” and insert “must”

VISCOUNT YOUNGER OF LECKIE

46A

Page 256, line 41, at end insert “any provision made under”

46B

Page 256, line 45, leave out “the imposition of any such sanction” and insert “a determination within paragraph (a) or (b)”

BARONESS BUSCOMBE

LORD CLEMENT-JONES

47

Page 256, line 45, leave out “the imposition of any such” and insert “a determination of a failure to comply or the imposition of a”

48

Page 257, line 13, at end insert “to defray reasonable costs incurred in relation to that licensing body”

49

Page 257, line 37, leave out first “or” and insert “, including provision”

BARONESS BUSCOMBE

LORD CLEMENT-JONES

LORD STEVENSON OF BALMACARA

50

Page 257, line 39, at end insert—

“( ) Regulations under this Schedule must make provision as to conditions that are to be satisfied, and procedures that are to be followed—

(a) before a licensing body is required to adopt a code of practice as described in paragraph 1(1);

(b) before a code of practice has effect as one adopted by a licensing body as described in paragraph 1(2);

(c) before an ombudsman is appointed as described in paragraph 3(1); and

(d) before a code reviewer is appointed as described in paragraph 4(1).”

VISCOUNT YOUNGER OF LECKIE

50A

Page 257, leave out lines 40 and 41

BARONESS BUSCOMBE

LORD CLEMENT-JONES

LORD STEVENSON OF BALMACARA

51

Page 257, line 41, at end insert—

“( ) The regulations must provide for the Secretary of State to consult persons whom the Secretary of State considers represent the interests of licensing bodies, licensees and members of licensing bodies, and the Intellectual Property Office before—

(a) specifying criteria with which a code of practice must comply,

(b) making provision as to the conditions and procedures referred to in paragraph 2,

(c) appointing a person as an ombudsman, or

(d) appointing a person as a code reviewer.”

VISCOUNT YOUNGER OF LECKIE

51A

Page 257, line 44, leave out “that amend an enactment”

51B

Page 258, leave out lines 3 to 5

LORD CLEMENT-JONES

LORD STEVENSON OF BALMACARA

52

Page 258, line 41, after “person” insert “specified pursuant to sub-paragraph (2) as”

53

Page 259, line 11, leave out “the act is not owned” and insert “no aspect of the copyright is owned or controlled”

54

Page 259, line 12, at end insert—

“( ) Authorisation under sub-paragraph (1) shall only be granted if the following conditions are met—

(a) the licensing body is significantly representative of the UK rights holders in the field concerned;

(b) the licence also includes works of the licensing body’s members for the same use.”

55

Page 259, line 14, at end insert—

“( ) An authorisation must also specify the types of use to which it applies.”

56

Page 259, line 15, after “owner” insert “, exclusive licensee or an authorised representative”

LORD STEVENSON OF BALMACARA

BARONESS HAYTER OF KENTISH TOWN

56A

Page 259, line 23, after “met,” insert “including the requirement to act in the public interest,”

LORD STEVENSON OF BALMACARA

56B

Page 259, line 25, at end insert—

“(2A) The regulations may require that a body authorised to grant licenses include on its governing body representatives of rights-holders and users of works for which it is authorised to grant licenses.”

LORD CLEMENT-JONES

LORD STEVENSON OF BALMACARA

57

Page 259, line 38, at end insert—

“( ) The regulations must make provision for determining the rights and obligations of any person if a work ceases to qualify as an orphan work (or ceases to qualify by reference to any copyright owner), or if a copyright owner or an exclusive licensee exercises the right referred to in section 116B(3) while a licence is in force.”

58

Page 259, leave out lines 41 to 45

VISCOUNT YOUNGER OF LECKIE

58A

Page 260, line 23, leave out “that amend an enactment”

58B

Page 260, leave out lines 27 to 29

Clause 69

LORD STEVENSON OF BALMACARA

 

Lord Stevenson of Balmacara gives notice of his intention to oppose the Question that Clause 69 stand part of the Bill.

Clause 70

LORD MITCHELL

LORD YOUNG OF NORWOOD GREEN

58BA

Page 65, line 24, at end insert—

“(2B) The regulations must require the inclusion of information regarding the ten highest paid and ten lowest paid employees in the company outside of the board and executive committee.”

58BB

Page 65, line 24, at end insert—

“(2C) The regulations must require the inclusion of information about payments to recruitment and remuneration consultants in respect of directors’ remuneration.”

58BC

Page 65, line 29, at end insert—

“(1A) A representative of the company’s employees must be consulted in the preparation of any such revision.”

58BD

Page 66, line 8, leave out “ordinary” and insert “special”

58BE

Page 66, line 14, leave out from “held” to end of line 18 and insert “annually thereafter”

58BF

Page 66, line 20, leave out “ordinary” and insert “special”

58BG

Page 67, line 12, at end insert—

“(c) “special resolution” has the same meaning as defined under section 283”

Clause 72

VISCOUNT YOUNGER OF LECKIE

58BH

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,”

58BJ

Page 71, line 13, leave out ‘Chapter 4A of Part 10” and insert “that Chapter”

58BK

Page 71, line 13, after “made” insert “or to be made”

After Clause 73

VISCOUNT YOUNGER OF LECKIE

58C

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)—

(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 available to members of the public for the purpose of communicating with others, or accessing data, by mobile phone.”

58D

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.

(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).”

58E

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 regulations which consist of or include provision made by virtue of section (Supply of customer data)(2)(d) 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 containing any other regulations under section (Supply of customer data) or section (Supply of customer data: enforcement) is subject to annulment in pursuance of a resolution of either House of Parliament.”

LORD RAZZALL

BARONESS BRINTON

58F

Insert the following new Clause—

“Fiduciaries: performance of investment functions

(1) In the performance of any investment functions, a fiduciary must act in the way the fiduciary considers, in good faith, would be most likely to be for the benefit of the beneficiaries as a whole and to be fair as between the beneficiaries, including as between present and future beneficiaries and in doing so, the fiduciary may have regard (amongst other matters) to—

(a) the likely consequences of any investment activities in the long term,

(b) the impact of any investment activities on the financial system and the economy,

(c) social and environmental considerations, including—

(i) the implications of social and environmental factors for return on investments, and

(ii) the impact of any investment activities on communities and the environment,

(d) the implications of any investment activities for beneficiaries’ quality of life, and

(e) the views, including the ethical views, of beneficiaries.

(2) If a fiduciary considers that the general adoption by market participants of a particular standard of conduct has been or would be conducive to the benefit of the beneficaries, the fiduciary may observe and promote the standard notwithstanding any rule of common law or equity which might otherwise oblige the fiduciary to act contrary to the standard or to require or influence any other person to do so.

(3) In this section—

“beneficiaries” means persons for whose benefit investments are being, will be or may be applied, whatever the particular form of ownership under which investments are held for the time being;

“benefit” includes—

(a) financial benefit provided out of investments; and

(b) any benefit which the fiduciary considers can be conferred on beneficiaries without any material prejudice to long-term return on investments;

“fiduciary” means a person or institution to which this section applies;

“investment activities” means any actions taken in the performance of any investment functions;

“investment functions” includes (amongst other matters) such of the following as pertain to the particular description of fiduciary—

(a) the selection, retention and realisation of investments,

(b) the exercise of rights, including voting rights, attaching to investments,

(c) engagement with the managers of investee companies and other investee entities, including in relation to corporate governance and corporate actions,

(d) the selection, appointment and monitoring of investment managers and other agents to whom the fiduciary delegates any investment functions,

(e) the selection and ongoing review of any investment funds which are operated by institutions acting as principals and in which the fiduciary invests,

(f) the selection, appointment and monitoring of investment consultants and of other advisers in relation to the performance of any investment functions,

(g) advising or assisting another fiduciary in relation to the performance of any investment functions,

(h) taking such steps as the fiduciary considers reasonable to ascertain the views of beneficiaries in relation to the fiduciary’s investment activities, and

(i) collective action with other market participants to further any common interests;

“investments” means the investments in relation to which any investment functions are performed and, where the context admits, includes assets of any kind representing such investments;

“standard of conduct” includes (without limitation) a standard which a fiduciary considers to be in accordance with—

(a) widely accepted norms of behaviour relating to environmental, social or governance issues, including any such norms set out in international conventions, voluntary codes of practice or otherwise, or

(b) the views or values of beneficiaries.”

58G

Insert the following new Clause—

“Persons or institutions to which section (Fiduciaries: performance of investment functions) applies

(1) The persons or institutions to which section 1 applies are—

(a) the trustees of a trust scheme as defined in section 124(1) of the Pensions Act 1995;

(b) any person or institution to whom the trustees of a trust scheme have delegated any of their investment functions as defined in section 1(3), in relation to the performance of such functions;

(c) any person or institution whom the trustees of any trust scheme have appointed to advise or assist them in the performance of their investment functions, in relation to the giving of such advice or assistance;

(d) undertakings authorised under the Financial Services and Markets Act 2000 to carry on long-term insurance business, that is, the activity of effecting or carrying out contracts of long-term insurance within the meaning of the Financial Services and Markets (Regulated Activities) Order 2001 (S.I. 2001/544), in relation to the effecting or carrying out of any contact falling within paragraph VII (pension fund management) of Part II of Schedule 1 to that order; and

(e) any person managing the investments of a personal pension scheme as defined in section 1(1) of the Pensions Schemes Act 1993, in relation to such management.

(2) The Secretary of State may by regulation—

(a) provide that section 1 applies to further descriptions of person or institution either generally or in prescribed circumstances;

(b) provide that where, by virtue of subsection (1) of this section, section 1 applies to any description of person or institution in prescribed circumstances only, it shall apply in further prescribed circumstances or generally;

(c) provide that where, by virtue of regulations made under paragraph (a) or (b), section 1 applies to any description of person or institution either generally or in prescribed circumstances, it shall no longer so apply but no such provision shall restrict the scope of subsection (1).”

Clause 74

VISCOUNT YOUNGER OF LECKIE

58GA

Page 73, leave out lines 34 to 36 and insert—

“(6) The regulations may provide for an employment tribunal to have power, where a person fails to comply with an order to carry out an equal pay audit, to order that person to pay a penalty to the Secretary of State of not more than an amount specified in the regulations.

(6A) The regulations may provide for that power—

(a) to be exercisable in prescribed circumstances;

(b) to be exercisable more than once, if the failure to comply continues.

(6B) The first regulations made by virtue of subsection (6) must not specify an amount of more than £5,000.

(6C) Sums received by the Secretary of State under the regulations must be paid into the Consolidated Fund.”

58GB

Page 73, leave out lines 37 to 41 and insert—

“(7) The first regulations under this section must specify an exemption period during which the requirement to order an equal pay audit does not apply in the case of a business that—

(a) had fewer than 10 employees immediately before a specified time, or

(b) was begun as a new business in a specified period.

(8) For the purposes of subsection (7)—

(a) “specified” means specified in the regulations, and

(b) the number of employees a business had or the time when a business was begun as a new business is to be determined in accordance with the regulations.”

58GC

Page 73, line 41, at end insert—

“( ) Before making regulations under this section, a Minister of the Crown must consult any other Minister of the Crown with responsibility for employment tribunals.”

After Clause 74

LORD STEVENSON OF BALMACARA

BARONESS HAYTER OF KENTISH TOWN

58H

Insert the following new Clause—

“Relationship between an insolvent company and its suppliers

(1) Section 233 of the Insolvency Act 1986 (supplies of gas, water, electricity, etc) is amended as follows.

(2) In subsection (3)(a) at the end insert “or other supplier”.

(3) In subsection (3)(b) at the end insert “or other supplier”.

(4) In subsection (3)(d) at the end insert “or other supplier”.

(5) After subsection (3)(d) insert—

“(e) a supply of computer hardware or software or infrastructure permitting electronic communications.”

(6) After subsection (3) insert—

“(3A) Any provision in a contract between a company and a supplier of goods or services that purports to terminate the agreement, or alter the terms of the contract, on the happening of any of the events specified in subsection (1) is void.””

58HZA

Insert the following new Clause—

“HMRC: values and objectives

(1) Section 16A(4) of the Commissioners for Revenue and Customs Act 2005 is amended as follows.

(2) After “Charter” insert “, how these interact with Her Majesty’s Revenue and Customs’ strategic objectives for the relevant year, and in particular with the aim of taking a long term view when considering proposals from individuals to repay their debts”.”

Clause 78

VISCOUNT YOUNGER OF LECKIE

58HA

Page 75, line 39, after “19” insert “(and section 63(3) so far as it relates to those paragraphs)”

59

[Withdrawn]

59A

Page 75, line 40, after “63” insert “(1) and (2)”

59B

Page 75, line 41, after “19” insert “(and section 63(3) so far as it relates to those paragraphs)”

60

[Withdrawn]

60A

[Withdrawn]

Clause 79

VISCOUNT YOUNGER OF LECKIE

60AA

Page 76, line 4, leave out “Sections 75 to 80” and insert “The following provisions”

60AB

Page 76, line 4, at end insert “—

(a) section 19;

(b) section (Power to remove concurrent competition functions of sectoral regulators);

(c) section 51;

(d) sections 66 to 69 and Schedule 21;

(e) sections 74 to 80;

(f) any other provision so far as is necessary for enabling the exercise on or after the day on which this Act is passed of any power (arising under or by virtue of that provision) to make provision by regulations or order made by statutory instrument.”

60AC

Page 76, line 5, after “provisions” insert “(so far as not already in force by virtue of subsection (1)(f))”

60AD

Page 76, line 6, at end insert—

“( ) Part 1;

( ) sections 11, 13, 15, 16 and 17;”

60AE

Page 76, line 9, leave out paragraph (c)

60AF

Page 76, line 13, leave out “The remaining provisions” and insert “Except as provided by subsections (1) and (2), the provisions”

In the Title

VISCOUNT YOUNGER OF LECKIE

60B

Line 7, after “directors;” insert “to make provision about the supply of customer data;”

Prepared 30th January 2013