Enterprise and Regulatory Reform Bill

Session 2012 - 13
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Other Bills before Parliament

Enterprise and Regulatory Reform Bill

Enterprise and Regulatory Reform Bill
Part 4 — Competition Reform
Chapter 5 — Miscellaneous
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)
after paragraph (c) insert—
5
“(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
appropriate.”
10
(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)
In paragraph 18 (supplementary provision about orders under paragraphs 15
15
and 17), omit “15 or”.
Concurrency
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Powers of sectoral regulators
(1)
Section 54 of the 1998 Act (concurrent powers for regulators) is amended as
follows.
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(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
in respect of the case rather than a regulator;
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(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
(6)(a), they must—
30
(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
section 31(1) that it proposes to make a decision (within the
35
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)
The Secretary of State may by regulations make provision requiring
40
arrangements to be made for the sharing of information between
competent persons in connection with concurrent cases.

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(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
by both it and any regulator;
5
(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
powers of regulators under the 1998 Act and those under sector-specific
10
legislation) has effect.
46
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—
15
(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
20
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—
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(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;
30
(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
35
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,
40
(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
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Northern Ireland and the Department for Regional Development in
Northern Ireland,

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(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
5
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—
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“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
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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.
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(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.
Miscellaneous
47
Recovery of CMA’s costs in respect of price control references
25
After section 193 of the Communications Act 2003 (reference of price control
matters) 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
30
costs incurred by it in connection with the reference (a “costs order”).
(2)
A 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—
35
(a)
set out the total costs incurred by the CMA in connection with
the 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
40
the CMA must, in particular, consider—
(a)
the extent to which the determination on the reference upholds
OFCOM’s decision in relation to the price control matter in
question,

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(b)
the extent to which the costs were attributable to the
involvement in the appeal of the party, and
(c)
the conduct of the party.
(5)
A costs order—
(a)
must be made as soon as reasonably practicable after the
5
making of the determination on the reference, but
(b)
does not take effect unless the Tribunal, in deciding the appeal
which 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)).
10
(6)
In a case where the Tribunal decides the price control matter in
question otherwise than as mentioned in subsection (5)(b), the CMA
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)
15
as they apply in relation to an order under subsection (1); but for that
purpose 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
20
practicable after the decision of the Tribunal mentioned in that
subsection.
(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).
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(10)
The CMA must pay any sums it receives by virtue of this section into
the 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
30
reference in question.”
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Disclosure 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
35
available to the public must not be used by the person to whom it is
disclosed for any purpose other than that mentioned in subsection (1).”
49
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
40
subsection (2), and
(b)
prepare and publish a report setting out the conclusions of the review.
(2)
The provisions of this Part are—

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Part 5 — Reduction of legislative burdens
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(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:
mergers), and
(c)
sections 26 and 32 and Schedules 8 and 12 (time-limits etc: mergers and
5
markets).
(3)
The report must in particular—
(a)
set out the objectives intended to be achieved by the provisions,
(b)
assess the extent to which those objectives have been achieved, and
(c)
assess whether those objectives remain appropriate and, if so, the
10
extent to which they could be achieved in another way which imposed
less regulation.
(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
15
provisions mentioned in subsection (2) comes into force (whether
wholly or partly), and
(b)
each successive period of 5 years.
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Minor and consequential amendments
Schedule 15 (which makes minor and consequential amendments related to
20
this Part) has effect.
51
Interpretation
In this Part—
“the 1998 Act” means the Competition Act 1998;
“the 2002 Act” means the Enterprise Act 2002.
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Part 5
Reduction of legislative burdens
Sunset and review
52
Sunset and review provisions
(1)
The Interpretation Act 1978 is amended as follows.
30
(2)
After section 14 (implied power to amend) insert—
“14A
Power 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—
35
(a)
the power or duty is exercisable by the Scottish Ministers, or
(b)
the power or duty is exercisable by any other person within
devolved competence (within the meaning of the Scotland Act
1998).

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(2)
The subordinate legislation may include—
(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)
provision for the legislation to cease to have effect at the end of
5
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)
The provision that may be made by virtue of subsection (2)(a) includes
10
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.
(4)
Subordinate legislation including provision of a kind mentioned in
subsection (2) may make such provision generally or only in relation to
15
specified provisions of the legislation or specified cases or
circumstances.
(5)
Subordinate 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.
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(6)
In this section, “specified” means specified in the subordinate
legislation.”
(3)
In paragraph 1 of Schedule 2, after the entry for section 11 insert—
“Section 14A”.
Heritage planning etc
25
53
Listed buildings in England: agreements and orders granting listed building
consent
(1)
The Planning (Listed Buildings and Conservation Areas) Act 1990 is amended
as follows.
(2)
In Chapter 2 of Part 1, after section 26 insert—
30
“Buildings in England: heritage partnership agreements
26A
Heritage partnership agreements
(1)
A 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.
35
(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
authority—
(a)
any other relevant local planning authority;
(b)
the Secretary of State;
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(c)
the Commission;
(d)
any person who has an interest in the listed building;

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(e)
any 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
5
historic 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
10
(b)
specifying 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
attached to listed building consent in respect of the works if consent
were to be granted under section 16.
15
(5)
If a heritage partnership agreement contains provision under
subsection (3), nothing in sections 10 to 26 and 28 applies in relation to
listed building consent for the specified works, subject to any
regulations under section 26B(2)(f).
(6)
A heritage partnership agreement may also—
20
(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
building as a building of special architectural or historic
interest;
(b)
make provision about the maintenance and preservation of the
25
listed building;
(c)
make provision about the carrying out of specified work, or the
doing 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
30
services;
(e)
restrict access to, or use of, the listed building;
(f)
prohibit the doing of any specified thing in relation to the listed
building;
(g)
provide for a relevant public authority to make payments of
35
specified amounts and on specified terms—
(i)
for, or towards, the costs of any works provided for
under the agreement; or
(ii)
in consideration of any restriction, prohibition or
obligation accepted by any other party to the agreement.
40
(7)
For the purposes of subsection (6)(g), each of the following, if a party to
the agreement, is a relevant public authority—
(a)
the Secretary of State;
(b)
the Commission;
(c)
a relevant local planning authority.
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(8)
In this section “specified” means specified or described in the heritage
partnership agreement.
(9)
In this section and section 26B—