Enterprise and Regulatory Reform Bill (HL Bill 45)
PART 4 continued CHAPTER 4 continued
Contents page 1-9 10-19 20-29 30-39 40-49 50-59 60-69 70-79 80-89 90-99 100-109 110-119 120-129 130-139 140-149 Last page
Enterprise and Regulatory Reform BillPage 40
(a)(a)the Director of the Serious Fraud Office;
(b) the Lord Advocate; and
(c) such other persons as it considers appropriate.”
(8)
The amendments made by subsections (1) to (6) apply only in relation to
5agreements falling within section 188(1) of the 2002 Act which—
(a) are made after the commencement of this section, and
(b) relate to arrangements made or to be made after that commencement.
42 Extension of power to issue warrants to CAT
(1)
Section 194 of the 2002 Act (power to enter premises under a warrant) is
10amended as follows.
(2)
In subsection (1), for the words from the beginning to “if he is satisfied”
substitute “On an application made to it by the CMA or, in Scotland, the
procurator fiscal, the appropriate body may issue a warrant if it is satisfied”.
(3) After subsection (1) insert—
“(1A) 15In subsection (1), “appropriate body” means—
(a)
in England and Wales and Northern Ireland, the High Court or
the Competition Appeal Tribunal;
(b) in Scotland, the sheriff.”
(4) After subsection (4) insert—
“(4A) 20An application for a warrant under this section must be made—
(a)
in the case of an application to the High Court or the sheriff, in
accordance with rules of court;
(b)
in the case of an application to the Competition Appeal
Tribunal, in accordance with rules made under section 15.”
(5)
25In Schedule 4 to that Act, before paragraph 11, but after the cross-heading
immediately preceding it, insert—
“10A
(1)
Tribunal rules may make provision as to proceedings on an
application for a warrant under section 194 of this Act or section 28,
28A, 62, 62A, 63, 65G or 65H of the 1998 Act, including provision—
(a)
30for the Tribunal dealing with the proceedings to consist only
of the President or a member of the panel of chairmen;
(b)
as to the manner in which the proceedings are to be
conducted, including provision—
(i)
for such applications to be determined without a
35hearing;
(ii)
in cases where there is a hearing, for it to be held in
private if the Tribunal considers it appropriate
because it is considering information of a kind
mentioned in paragraph 1(2);
(c)
40as to the persons entitled to be heard in such proceedings
(where there is a hearing);
(d)
for requiring persons to attend to give evidence and produce
documents, and for authorising the administration of oaths
to witnesses;
Enterprise and Regulatory Reform BillPage 41
(e)
as to the evidence which may be required or admitted and the
extent to which it should be oral or written;
(f)
allowing the Tribunal to fix time-limits with respect to any
aspect of the proceedings and to extend any time-limit
5(before or after its expiry).
(2)
Paragraphs 2 to 8, and 11 to 17, of this Schedule do not apply in
relation to the institution or conduct of proceedings for a warrant
mentioned in sub-paragraph (1).”
(6)
In section 14 of that Act (constitution of Tribunal for particular proceedings
10and its decisions), in subsection (5), for “paragraph 18” substitute “paragraphs
10A(1)(a) and 18”.
CHAPTER 5 Miscellaneous
Enforcement orders: markets and mergers
43 Enforcement orders: monitoring compliance and determination of disputes
15In Schedule 8 to the 2002 Act (provision that may be contained in certain
enforcement orders made under Part 3 or 4 of that Act), after paragraph 20B
insert—
“Monitoring of compliance and determination of disputes
20C
(1)
An order may provide for the appointment of one or more than one
20person (referred to in this paragraph as an “appointee”) by the
relevant authority or by such other persons as may be specified or
described in the order to—
(a)
monitor compliance with such terms of the order as are so
specified or described or terms of any directions given under
25the order;
(b)
determine any dispute between persons who are subject to
the order about what is required by any such terms.
(2)
An order made by virtue of this paragraph must make provision as
to the terms of an appointee’s appointment.
(3)
30A determination made by virtue of an order under this paragraph is
binding on—
(a) any person who is subject to the order;
(b) the relevant authority; and
(c)
in the case where the relevant authority is the Secretary of
35State, the CMA.”
44 Enforcement orders: provision of information
(1)
Schedule 8 to the 2002 Act (provision that may be contained in certain
enforcement orders made under Part 3 or 4 of that Act) is amended as follows.
(2) Omit paragraph 15 (publication etc. of price information).
Enterprise and Regulatory Reform BillPage 42
(3) Paragraph 17 (publication etc. of other information) is amended as follows.
(4) In sub-paragraph (1)—
(a)
in the words before paragraph (a), after “publish” insert “or otherwise
notify”, and
(b) 5after paragraph (c) insert—
“(d)
information in relation to prices of the goods or
services supplied;
(e)
such other information in relation to the goods or
services supplied as the relevant authority considers
10appropriate.”
(5) After sub-paragraph (1) insert—
“(1A)
An order may prohibit the publication or other notification of
information falling within sub-paragraph (1)(a) to (e) by a person
supplying goods or services.”
(6)
15In paragraph 18 (supplementary provision about orders under paragraphs 15
and 17), omit “15 or”.
Concurrency
45 Powers of sector regulators
(1)
Section 54 of the 1998 Act (concurrent powers for regulators) is amended as
20follows.
(2) In subsection (6)—
(a) after “may” insert “—
(a)
prescribe circumstances in which the CMA may decide
that, in a particular case, it is to exercise Part 1 functions
25in respect of the case rather than a regulator;
(b)”, and
(b) after “Secretary of State” insert “, the CMA”.
(3) After subsection (6) insert—
“(6A)
Where the regulations make provision as mentioned in subsection
30(6)(a), they must—
(a)
include provision requiring the CMA to consult the regulator
concerned before making a decision that the CMA is to exercise
Part 1 functions in respect of a particular case, and
(b)
provide that, in a case where a regulator has given notice under
35section 31(1) that it proposes to make a decision (within the
meaning given by section 31(2)), the CMA may only decide that
it is to exercise Part 1 functions in respect of the case rather than
the regulator if the regulator consents.”
(4) After subsection (6A) insert—
“(6B)
40The Secretary of State may by regulations make provision requiring
arrangements to be made for the sharing of information between
competent persons in connection with concurrent cases.
Enterprise and Regulatory Reform BillPage 43
(6C)
For the purposes of subsection (6B), “a concurrent case” is a case in
respect of which—
(a)
the CMA considers that Part 1 functions are, or (but for
provision made under subsection (5)(e)) would be, exercisable
5by both it and any regulator;
(b)
any regulator considers that Part 1 functions are, or (but for
provision made under subsection (5)(e)) would be, exercisable
by it.”
(5)
Schedule 14 (which makes provision governing the relationship between the
10powers of regulators under the 1998 Act and those under sector-specific
legislation) has effect.
Miscellaneous
46 Recovery of CMA’s costs in respect of price control references
After section 193 of the Communications Act 2003 (reference of price control
15matters) insert—
“193A Recovery of CMA’s costs in respect of price control references
(1)
Where a determination is made on a price control matter referred by
virtue of section 193, the CMA may make an order in respect of the
costs incurred by it in connection with the reference (a “costs order”).
(2)
20A costs order may require the payment to the CMA of some or all of
those costs by such parties to the appeal which gave rise to the
reference, other than OFCOM, as the CMA considers appropriate.
(3) A costs order must—
(a)
set out the total costs incurred by the CMA in connection with
25the reference, and
(b)
specify the proportion of those costs to be paid by each party to
the appeal in respect of whom the order is made.
(4)
In deciding on the proportion of costs to be paid by a party to the appeal
the CMA must, in particular, consider—
(a)
30the extent to which the determination on the reference upholds
OFCOM’s decision in relation to the price control matter in
question,
(b)
the extent to which the costs were attributable to the
involvement in the appeal of the party, and
(c) 35the conduct of the party.
(5) A costs order—
(a)
must be made as soon as reasonably practicable after the
making of the determination on the reference, but
(b)
does not take effect unless the Tribunal, in deciding the appeal
40which gave rise to the reference, decides the price control matter
which is the subject of the reference in accordance with the
determination of the CMA (see section 193(6)).
(6)
In a case where the Tribunal decides the price control matter in
question otherwise than as mentioned in subsection (5)(b), the CMA
Enterprise and Regulatory Reform BillPage 44
may make an order under this subsection in respect of the costs
incurred by it in connection with the reference.
(7)
Subsections (2) to (4) apply in relation to an order under subsection (6)
as they apply in relation to an order under subsection (1); but for that
5purpose the reference in subsection (4)(a) to the determination on the
reference is to be read as a reference to the decision of the Tribunal
mentioned in subsection (6).
(8)
An order under subsection (6) must be made as soon as reasonably
practicable after the decision of the Tribunal mentioned in that
10subsection.
(9)
An amount payable to the CMA by virtue of an order made under this
section is recoverable summarily as a civil debt (but this does not affect
any other method of recovery).
(10)
The CMA must pay any sums it receives by virtue of this section into
15the Consolidated Fund.
(11)
The functions of the CMA under this section, other than those under
subsections (9) and (10), are to be carried out on behalf of the CMA by
the group constituted by the chair of the CMA in relation to the
reference in question.”
47 20Disclosure etc. of information: offences
In section 241 of the 2002 Act (disclosure of information for the purpose of
exercise of statutory functions), after subsection (2) insert—
“(2A)
Information disclosed under subsection (1) so that it is not made
available to the public must not be used by the person to whom it is
25disclosed for any purpose other than that mentioned in subsection (1).”
48 Review of certain provisions of Chapters 1 and 2
(1) The Secretary of State must, before the end of each review period—
(a)
carry out a review of the provisions of this Part mentioned in
subsection (2), and
(b) 30prepare and publish a report setting out the conclusions of the review.
(2) The provisions of this Part are—
(a)
sections 23 and 30 and Schedule 11 (investigation powers: mergers and
markets),
(b)
section 24 and Schedule 7 (interim measures and pre-emptive action:
35mergers), and
(c)
sections 26 and 32 and Schedules 8 and 12 (time-limits etc: mergers and
markets).
(3) The report must in particular—
(a) set out the objectives intended to be achieved by the provisions,
(b) 40assess the extent to which those objectives have been achieved, and
(c)
assess whether those objectives remain appropriate and, if so, the
extent to which they could be achieved in another way which imposed
less regulation.
Enterprise and Regulatory Reform BillPage 45
(4) The Secretary of State must lay the report before Parliament.
(5) Each of the following is a review period for the purposes of this section—
(a)
the period of 5 years beginning with the first day on which any of the
provisions mentioned in subsection (2) comes into force (whether
5wholly or partly), and
(b) each successive period of 5 years.
49 Minor and consequential amendments
Schedule 15 (which makes minor and consequential amendments related to
this Part) has effect.
50 10Interpretation
In this Part—
-
“the 1998 Act” means the Competition Act 1998;
-
“the 2002 Act” means the Enterprise Act 2002.
Part 5 15Reduction of legislative burdens
Sunset and review
51 Sunset and review provisions
(1) The Interpretation Act 1978 is amended as follows.
(2) After section 14 (implied power to amend) insert—
“14A
20Power to include sunset and review provisions in subordinate
legislation
(1)
This section applies where an Act confers a power or a duty on a person
to make subordinate legislation except to the extent that—
(a) the power or duty is exercisable by the Scottish Ministers, or
(b)
25the power or duty is exercisable by any other person within
devolved competence (within the meaning of the Scotland Act
1998).
(2) The subordinate legislation may include—
(a)
provision requiring the person to review the effectiveness of the
30legislation within a specified period or at the end of a specified
period;
(b)
provision for the legislation to cease to have effect at the end of
a specified day or a specified period;
(c)
if the power or duty is being exercised to amend other
35subordinate legislation, provision of the kind mentioned in
paragraph (a) or (b) in relation to that other legislation.
(a)(a)provision requiring the person to review the effectiveness of the
legislation within a specified period or at the end of a specified
period;
(b)
40provision for the legislation to cease to have effect at the end of
a specified day or a specified period;
(c)
if the power or duty is being exercised to amend other
subordinate legislation, provision of the kind mentioned in
paragraph (a) or (b) in relation to that other legislation.
(3)
45The provision that may be made by virtue of subsection (2)(a) includes
provision requiring the person to consider whether the objectives
which it was the purpose of the legislation to achieve remain
appropriate and, if so, whether they could be achieved in another way.
Enterprise and Regulatory Reform BillPage 46
(4)
Subordinate legislation including provision of a kind mentioned in
subsection (2) may make such provision generally or only in relation to
specified provisions of the legislation or specified cases or
circumstances.
(5)
5Subordinate legislation including provision of a kind mentioned in
subsection (2) may make transitional, consequential, incidental or
supplementary provision or savings in connection with such provision.
(6)
In this section, “specified” means specified in the subordinate
legislation.”
(3) 10In paragraph 1 of Schedule 2, after the entry for section 11 insert—
-
“Section 14A”.
Heritage planning etc
52
Listed buildings in England: agreements and orders granting listed building
consent
(1)
15The Planning (Listed Buildings and Conservation Areas) Act 1990 is amended
as follows.
(2) In Chapter 2 of Part 1, after section 26 insert—
“Buildings in England: heritage partnership agreements
26A Heritage partnership agreements
(1)
20A relevant local planning authority may make an agreement under this
section (a “heritage partnership agreement”) with any owner of a listed
building, or a part of such a building, situated in England.
(2)
Any of the following may also be a party to a heritage partnership
agreement in addition to an owner and the relevant local planning
25authority—
(a) any other relevant local planning authority;
(b) the Secretary of State;
(c) the Commission;
(d) any person who has an interest in the listed building;
(e) 30any occupier of the listed building;
(f) any person involved in the management of the listed building;
(g)
any other person who appears to the relevant local planning
authority appropriate as having special knowledge of, or
interest in, the listed building, or in buildings of architectural or
35historic interest more generally.
(3) A heritage partnership agreement may contain provision—
(a)
granting listed building consent under section 8(1) in respect of
specified works for the alteration or extension of the listed
building to which the agreement relates, and
(b) 40specifying any conditions to which the consent is subject.
(4)
The conditions to which listed building consent may be subject under
subsection (3)(b) in respect of specified works are those that could be
Enterprise and Regulatory Reform BillPage 47
attached to listed building consent in respect of the works if consent
were to be granted under section 16.
(5)
If a heritage partnership agreement contains provision under
subsection (3), nothing in sections 10 to 26 and 28 applies in relation to
5listed building consent for the specified works, subject to any
regulations under section 26B(2)(f).
(6) A heritage partnership agreement may also—
(a)
specify or describe works that would or would not, in the view
of the parties to the agreement, affect the character of the listed
10building as a building of special architectural or historic
interest;
(b)
make provision about the maintenance and preservation of the
listed building;
(c)
make provision about the carrying out of specified work, or the
15doing of any specified thing, in relation to the listed building;
(d)
provide for public access to the listed building and the
provision to the public of associated facilities, information or
services;
(e) restrict access to, or use of, the listed building;
(f)
20prohibit the doing of any specified thing in relation to the listed
building;
(g)
provide for a relevant public authority to make payments of
specified amounts and on specified terms—
(i)
for, or towards, the costs of any works provided for
25under the agreement; or
(ii)
in consideration of any restriction, prohibition or
obligation accepted by any other party to the agreement.
(7)
For the purposes of subsection (6)(g), each of the following, if a party to
the agreement, is a relevant public authority—
(a) 30the Secretary of State;
(b) the Commission;
(c) a relevant local planning authority.
(8)
In this section “specified” means specified or described in the heritage
partnership agreement.
(9) 35In this section and section 26B—
-
“owner”, in relation to a listed building or a part of such a
building, means a person who is for the time being —(a)the estate owner in respect of the fee simple in the
building or part; or(b)40entitled to a tenancy of the building or part granted or
extended for a term of years certain of which not less
than seven years remain unexpired; -
“relevant local planning authority”, in relation to a listed building,
means a local planning authority in whose area the building or
45any part of the building is situated.
26B Heritage partnership agreements: supplemental
(1) A heritage partnership agreement—
(a) must be in writing;
Enterprise and Regulatory Reform BillPage 48
(b)
must make provision for the parties to review its terms at
intervals specified in the agreement;
(c) must make provision for its termination and variation;
(d)
may relate to more than one listed building or part, provided
5that in each case a relevant local planning authority and an
owner are parties to the agreement; and
(e) may contain incidental and consequential provisions.
(2) The Secretary of State may by regulations make provision—
(a)
about any consultation that must take place before heritage
10partnership agreements are made or varied;
(b)
about the publicity that must be given to heritage partnership
agreements before or after they are made or varied;
(c)
specifying terms that must be included in heritage partnership
agreements;
(d)
15enabling the Secretary of State or any other person specified in
the regulations to terminate by order a heritage partnership
agreement or any provision of such an agreement;
(e)
about the provision that may be included in an order made
under regulations under paragraph (d), including provision
20enabling such orders to contain supplementary, incidental,
transitory, transitional or saving provision;
(f)
applying or reproducing, with or without modifications, any
provision of sections 10 to 26 and 28 for the purposes of heritage
partnership agreements;
(g)
25modifying any other provision of this Act as it applies in
relation to heritage partnership agreements.
(3)
Regulations made under subsection (2)(a) may, in particular, include
provision as to—
(a) the circumstances in which consultation must take place;
(b)
30the types of listed building in respect of which consultation
must take place;
(c) who must carry out the consultation;
(d)
who must be consulted (including provision enabling the
Commission to direct who is to be consulted in particular cases);
35and
(e) how the consultation must be carried out.
(4)
Listed building consent granted by a heritage partnership agreement
(except so far as the agreement or regulations under subsection (2)
otherwise provide) enures for the benefit of the building and of all
40persons for the time being interested in it.
(5)
Subject to subsection (4), a heritage partnership agreement cannot
impose any obligation or liability, or confer any right, on a person who
is not party to the agreement.
(6)
Section 84 of the Law of Property Act 1925 (power to discharge or
45modify restrictive covenant) does not apply to a heritage partnership
agreement.”
Enterprise and Regulatory Reform BillPage 49
(3) After section 26B insert—
“Buildings in England: orders granting listed building consent
26C Listed building consent orders
(1)
The Secretary of State may by order (a “listed building consent order”)
5grant listed building consent under section 8(1) in respect of works of
any description for the alteration or extension of listed buildings of any
description in England.
(2) The consent may be granted subject to conditions specified in the order.
(3)
Without prejudice to the generality of subsection (2), the conditions
10that may be specified include any conditions subject to which listed
building consent may be granted under section 16.
(4)
A listed building consent order may (without prejudice to section 17(2))
give the local planning authority power to require details of works to
be approved by them, and may grant consent subject to conditions with
15respect to—
(a)
the making of an application to the authority for a
determination as to whether such approval is required, and
(b) the outcome of such an application or the way it is dealt with.
(5)
A listed building consent order may enable the Secretary of State or the
20local planning authority to direct that consent granted by the order
does not apply—
(a) to a listed building specified in the direction;
(b) to listed buildings of a description specified in the direction;
(c) to listed buildings in an area specified in the direction.
(6)
25An order may in particular make provision about the making, coming
into force, variation and revocation of such a direction, including
provision conferring powers on the Secretary of State in relation to
directions by a local planning authority.
(7)
Nothing in sections 10 to 26 applies in relation to listed building
30consent granted by a listed building consent order; but that does not
affect the application of sections 20, 21 and 22 in relation to an
application for approval required by a condition to which consent is
subject.
26D Local listed building consent orders
(1)
35A local planning authority for any area in England may by order (a
“local listed building consent order”) grant listed building consent
under section 8(1) in respect of works of any description for the
alteration or extension of listed buildings.
(2)
Regulations under this Act may provide that subsection (1) does not
40apply to listed buildings of any description or in any area.
(3)
The consent granted by a local listed building consent order may
relate—
(a)
to all listed buildings in the area of the authority or any part of
that area;