Session 2012 - 13
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Enterprise and Regulatory Reform Bill


Enterprise and Regulatory Reform Bill
Part 6 — Miscellaneous and general

76

 

Supplementary

226E    

Payments made without approval: civil consequences

(1)   

An obligation (however arising) to make a payment which would be in

contravention of section 226B or 226C has no effect.

(2)   

If a payment is made in contravention of section 226B or 226C—

5

(a)   

it is held by the recipient on trust for the company or other

person making the payment, and

(b)   

in the case of a payment by a company, any director who

authorised the payment is jointly and severally liable to

indemnify the company that made the payment for any loss

10

resulting from it.

(3)   

If a payment for loss of office is made in contravention of section 226C

to a director of a quoted company in connection with the transfer of the

whole or any part of the undertaking or property of the company or a

subsidiary of the company—

15

(a)   

subsection (2) does not apply, and

(b)   

the payment is held by the recipient on trust for the company

whose undertaking or property is or is proposed to be

transferred.

(4)   

If a payment for loss of office is made in contravention of section 226C

20

to a director of a quoted company in connection with a transfer of

shares in the company, or in a subsidiary of the company, resulting

from a takeover bid—

(a)   

subsection (2) does not apply,

(b)   

the payment is held by the recipient on trust for persons who

25

have sold their shares as a result of the offer made, and

(c)   

the expenses incurred by the recipient in distributing that sum

amongst those persons shall be borne by the recipient and not

retained out of that sum.

(5)   

If in proceedings against a director for the enforcement of a liability

30

under subsection (2)(b)—

(a)   

the director shows that he or she has acted honestly and

reasonably, and

(b)   

the court considers that, having regard to all the circumstances

of the case, the director ought to be relieved of liability,

35

   

the court may relieve the director, either wholly or in part, from liability

on such terms as the court thinks fit.

226F    

Relationship with requirements under Chapter 4

(1)   

This Chapter does not affect any requirement for approval by a

resolution of the members of a company which applies in relation to the

40

company under Chapter 4.

(2)   

Where the making of a payment to which section 226B or 226C applies

requires approval by a resolution of the members of the company

concerned under Chapter 4, approval obtained for the purposes of that

Chapter is to be treated as satisfying the requirements of section

45

226B(1)(b) or (as the case may be) 226C(1)(b).”

 
 

Enterprise and Regulatory Reform Bill
Part 6 — Miscellaneous and general

77

 

83      

Payments to directors: minor and consequential amendments

(1)   

The Companies Act 2006 is amended as follows.

(2)   

In section 180 (consent, approval or authorisation by members)—

(a)   

in subsection (2), in the words before paragraph (a)—

(i)   

after “Chapter 4” insert “or 4A”, and

5

(ii)   

for “that Chapter” substitute “either of those Chapters”,

(b)   

in that subsection, in paragraph (a), for “that Chapter” substitute “the

Chapter concerned”, and

(c)   

in subsection (3), after “Chapter 4” insert “or 4A”.

(3)   

In section 190 (substantial property transactions: requirement of members’

10

approval), in subsection (6)(b), for the words in brackets substitute “(payments

to which the requirements of Chapter 4 or 4A apply)”.

(4)   

In section 215 (payments for loss of office), after subsection (4) insert—

“(5)   

Nothing in this section or sections 216 to 222 applies in relation to a

payment for loss of office to a director of a quoted company other than

15

a payment to which section 226C does not apply by virtue of section

226D(6).”

(5)   

Section 430 (quoted companies: annual accounts and reports to be made

available on website) is amended as follows.

(6)   

After subsection (2) insert—

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“(2A)   

If the directors’ remuneration policy of a quoted company is revised in

accordance with section 422A, the company must ensure that the

revised policy is made available on the website on which its annual

accounts and reports are made available.

(2B)   

If a person ceases to be a director of a quoted company, the company

25

must ensure that the following information is made available on the

website on which its annual accounts and reports are made available—

(a)   

the name of the person concerned,

(b)   

particulars of any remuneration payment (within the meaning

of Chapter 4A of Part 10) made or to be made to the person after

30

ceasing to be a director, including its amount and how it was

calculated, and

(c)   

particulars of any payment for loss of office (within the meaning

of that Chapter) made or to be made to the person, including its

amount and how it was calculated.”

35

(7)   

In subsection (3) —

(a)   

for “the annual accounts and reports on the website” substitute “the

material made available on the website under subsections (1) to (2B)”,

and

(b)   

for “the annual accounts and reports from” substitute “such material

40

from”.

(8)   

After subsection (4) insert—

“(4A)   

Where subsection (2A) or (2B) applies, the material in question—

(a)   

must be made available as soon as reasonably practicable, and

 
 

Enterprise and Regulatory Reform Bill
Part 6 — Miscellaneous and general

78

 

(b)   

must be kept available until the next directors’ remuneration

report of the company is made available on the website.”

(9)   

In subsection (5)—

(a)   

in the words before paragraph (a), for the words from “the annual

accounts and reports” to “that period” substitute “material available on

5

a website throughout the period mentioned in subsection (4) or (as the

case may be) (4A)”, and

(b)   

in paragraph (a) for “the annual accounts and reports are” substitute

“the material is”.

(10)   

In section 440 (quoted companies: offences in connection with procedure for

10

approval)—

(a)   

in subsection (1) —

(i)   

after “section 439(1)” insert “or 439A(1) or (2)”, and

(ii)   

in the words in brackets, after “report” insert “or policy”,

(b)   

in subsection (2), for “the accounts meeting” substitute “the meeting to

15

which it relates”, and

(c)   

in subsection (5), omit the definition of “the accounts meeting”.

(11)   

In Schedule 8 (in the index of defined expressions), at the appropriate places

insert—

 

“directors’

section 226A(1)”

 

20

 

remuneration

  
 

policy (in Chapter

  
 

4A of Part 10)

  
 

“payment for loss

section 226A(1)”

 
 

of office (in

  

25

 

Chapter 4A of Part

  
 

10)

  
 

“remuneration

section 226A(1)”.

 
 

payment (in

  
 

Chapter 4A of Part

  

30

 

10)

  

(12)   

In that Schedule, after “quoted company”, insert—

 

“—in Chapter 4A of Part 10

section 226A(1)”.

 

84      

Payments to directors: transitional

(1)   

In relation to a company that is a quoted company immediately before the day

35

on which section 81 of this Act comes into force, section 439A(1)(a) of the

Companies Act 2006 (as inserted by section 81(4) of this Act) applies as if—

 
 

Enterprise and Regulatory Reform Bill
Part 6 — Miscellaneous and general

79

 

(a)   

the reference to the day on which the company becomes a quoted

company were a reference to the day on which section 81 of this Act

comes into force, and

(b)   

at the end of the paragraph (but before the “, and”) there were inserted

“or at an earlier general meeting”.

5

(2)   

In relation to a company that is a quoted company immediately before the day

on which section 81 of this Act comes into force, section 226D(6)(a) of the

Companies Act 2006 (as inserted by section 82 of this Act) applies as if the

reference to the day on which the company becomes a quoted company were

a reference to the day on which section 81 of this Act comes into force.

10

(3)   

Chapter 4A of Part 10 of the Companies Act 2006 does not apply in relation to

remuneration payments or payments for loss of office that are required to be

made under an agreement entered into before 27 June 2012 or in consequence

of any other obligation arising before that date.

(4)   

An agreement entered into, or any other obligation arising, before 27 June 2012

15

that is modified or renewed on or after that date is to be treated for the

purposes of subsection (3) as having been entered into or (as the case may be)

as having arisen on the date on which it was modified or renewed.

(5)   

The amendment made by section 83(4) does not apply in relation to a payment

for loss of office to which subsection (3) of this section applies.

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Supply of customer data

85      

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;

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(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

30

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;

35

(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.

40

(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)—

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Enterprise and Regulatory Reform Bill
Part 6 — Miscellaneous and general

80

 

(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

5

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

10

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;

15

(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

20

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—

25

(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;

30

(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

35

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

40

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

45

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

 
 

Enterprise and Regulatory Reform Bill
Part 6 — Miscellaneous and general

81

 

the public for the purpose of communicating with others, or accessing data, by

mobile phone.

86      

Supply of customer data: enforcement

(1)   

Regulations may make provision for the enforcement of regulations under

section 85 (“customer data regulations”) by the Information Commissioner or

5

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

10

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).

15

(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

20

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).

25

(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

30

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

35

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

40

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 85 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

45

Parliament to an enforcer.

 
 

Enterprise and Regulatory Reform Bill
Part 6 — Miscellaneous and general

82

 

(8)   

In this section, “customer” and “regulated person” have the same meaning as

in section 85.

87      

Supply of customer data: supplemental

(1)   

The power to make regulations under section 85 or 86 includes—

(a)   

power to make incidental, supplementary, consequential, transitional

5

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 (whether alone or with other provision)—

10

(a)   

regulations under section 85 which make provision by virtue of section

85(2)(d), or

(b)   

regulations under section 86,

   

may not be made unless a draft of the instrument has been laid before, and

approved by a resolution of, each House of Parliament.

15

(4)   

A statutory instrument which—

(a)   

contains regulations under section 85, and

(b)   

is not an instrument to which subsection (3) applies,

   

is subject to annulment in pursuance of a resolution of either House of

Parliament.

20

Insolvency: protection of essential supplies

88      

Power to add to supplies protected under Insolvency Act 1986

(1)   

The Secretary of State may by order amend section 233 of the Insolvency Act

1986 so as to add to the supplies mentioned in subsection (3) of that section any

of the following—

25

(a)   

a supply of gas, electricity, water or communication services by a

specified description of person;

(b)   

a supply of a specified description of goods or services by a specified

description of person where the supply is for the purpose of enabling

or facilitating anything to be done by electronic means.

30

(2)   

The Secretary of State may by order amend section 372 of that Act of 1986 so as

to add to the supplies mentioned in subsection (4) of that section any of the

following—

(a)   

a supply of gas, electricity, water or communication services by a

specified description of person;

35

(b)   

a supply of a specified description of goods or services by a specified

description of person where the supply is for the purpose of enabling

or facilitating anything to be done by electronic means.

(3)   

The power to make an order under this section includes power to make

incidental, supplementary, consequential, transitional or saving provision,

40

including doing so by amending any enactment.

(4)   

An order under this section must be made by statutory instrument.

 
 

 
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Revised 19 March 2013