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 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
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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—
20
“(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
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(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
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(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.
20
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;
25
(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)—
45

Enterprise and Regulatory Reform Bill
Part 6 — Miscellaneous and general
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(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
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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.

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(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.