Digital Economy Bill (HL Bill 122)

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(a) the principles to which it will have regard in exercising its
functions under sections 45B, 45C and 45D, and

(b) the procedures which it will adopt in exercising those functions.

(6) The statement must be consistent with the code of practice issued under
5section 52B (data-sharing code) of the Data Protection Act 1998 (as
altered or replaced from time to time).

(7) The Board may at any time revise the statement and, if it decides to do
so, must publish the statement as revised.

(8) In preparing or revising the statement the Board must consult—

(a) 10the Minister for the Cabinet Office,

(b) the Information Commissioner,

(c) the Scottish Ministers,

(d) the Welsh Ministers,

(e) the Department of Finance in Northern Ireland, and

(f) 15such other persons as the Board thinks fit.

(9) The fact that this section was not in force when consultation of the kind
mentioned in subsection (8) took place is to be disregarded in
determining whether there has been compliance with that subsection.

(10) The Board may not publish the original statement under this section
20unless a draft of the statement has been laid before, and approved by a
resolution of, each House of Parliament.

(11) Before publishing a revised statement under this section the Board
must lay a draft of the statement as proposed to be published before
Parliament.

(12) 25The Board may not publish the revised statement if, within the 40-day
period, either House of Parliament resolves not to approve it.

(13) In subsection (12) “the 40 day period” means—

(a) the period of 40 days beginning with the day on which the draft
is laid before Parliament, or

(b) 30if the draft is not laid before each House on the same day, the
period of 40 days beginning with the later of the days on which
it is laid before Parliament.

(14) For the purposes of subsection (13) no account is to be taken of any
period during which Parliament is dissolved or prorogued or during
35which both Houses are adjourned for more than four days.

(15) After preparing or revising a statement the Board must lay the
statement, or the statement as revised, before—

(a) the Scottish Parliament,

(b) the National Assembly for Wales, and

(c) 40the Northern Ireland Assembly.

(16) In exercising any of its functions under section 45B, 45C or 45D to
require the disclosure of information, the Board must have regard to
any code of practice issued by the Information Commissioner under
section 51(3) of the Data Protection Act 1998 which makes provision
45about the identification and reduction of the risks to privacy of a

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proposal to disclose information, so far as the code applies to the
information in question.

(17) The duty in subsection (16) to have regard to a code of practice does not
affect any other requirement for the Board to have regard to a code of
5practice under the Data Protection Act 1998 in exercising the function.

45F Offences relating to notices under section 45C or 45D

(1) A person is guilty of an offence if—

(a) the person is given a notice under section 45C or 45D,

(b) the person is required to comply with the notice,

(c) 10the person fails to do so, and

(d) the person does not have a reasonable excuse for that failure.

(2) A person is guilty of an offence if, in purporting to comply with a notice
under section 45C or 45D, the person—

(a) provides information which is false in a material respect, and

(b) 15knows that the information is false in that respect or is reckless
as to whether it is false in that respect.

(3) A person who is guilty of an offence under subsection (1) or (2) is liable
on summary conviction—

(a) in England and Wales, to a fine, and

(b) 20in Scotland or Northern Ireland, to a fine not exceeding level 5
on the standard scale.

(4) If an offence under this section is committed by a body corporate with
the consent or connivance of an officer of the body, the officer, as well
as the body, is to be treated as having committed the offence.

(5) 25In subsection (4) a reference to an officer of a body includes a reference
to—

(a) a director, manager or secretary,

(b) a person purporting to act as a director, manager or secretary,
and

(c) 30if the affairs of the body are managed by its members, a
member.

(6) Where an offence under this section is committed by a partnership
(whether or not a limited partnership) subsection (4) has effect, but as
if a reference to an officer of the body were a reference to—

(a) 35a partner, and

(b) a person purporting to act as a partner.

45G Code of practice on changes to data systems

(1) The Board must prepare, adopt and publish a code of practice
containing guidance on the matters to be taken into account by a public
40authority in making changes to—

(a) its processes for collecting, organising, storing or retrieving
information, or

(b) its processes (if any) for supplying information to the Board.

(2) A public authority must have regard to any code of practice under this
45section in making such changes.

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(3) The Board may at any time revise a code of practice under this section
and, if it decides to do so, must publish the code as revised.

(4) In preparing or revising a code of practice under this section, the Board
must consult—

(a) 5the Minister for the Cabinet Office,

(b) the Scottish Ministers,

(c) the Welsh Ministers,

(d) the Department of Finance in Northern Ireland, and

(e) such other persons as the Board thinks fit.

(5) 10The fact that this section was not in force when consultation of the kind
mentioned in subsection (4) took place is to be disregarded in
determining whether there has been compliance with that subsection.

(6) The Board may not publish the original code of practice under this
section unless a draft of the code has been laid before, and approved by
15a resolution of, each House of Parliament

(7) Before publishing a revised code of practice under this section the
Board must lay a draft of the code as proposed to be published before
Parliament.

(8) The Board may not publish the revised code of practice if, within the 40-
20day period, either House of Parliament resolves not to approve it.

(9) In subsection (8) “the 40 day period” means—

(a) the period of 40 days beginning with the day on which the draft
is laid before Parliament, or

(b) if the draft is not laid before each House on the same day, the
25period of 40 days beginning with the later of the days on which
it is laid before Parliament.

(10) For the purposes of subsection (9) no account is to be taken of any
period during which Parliament is dissolved or prorogued or during
which both Houses are adjourned for more than four days.

(11) 30After preparing or revising a code of practice under this section the
Board must lay the code, or the code as revised, before—

(a) the Scottish Parliament,

(b) the National Assembly for Wales, and

(c) the Northern Ireland Assembly.

(12) 35The reference in subsection (1) to making changes to a process includes
introducing or removing a process.

(13) This section binds the Crown.

(14) The reference to the Crown in subsection (13) does not include—

(a) Her Majesty in Her private capacity,

(b) 40Her Majesty in right of the Duchy of Lancaster, or

(c) the Duke of Cornwall.”

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84 Disclosure by the Statistics Board to devolved administrations

After section 53 of the Statistics and Registration Service Act 2007 insert—

53A Disclosure by the Board to devolved administrations

(1) Subject to this section, the Board may disclose information held by the
5Board in connection with the exercise of any of its functions to a
devolved authority.

(2) In this section “devolved authority” means—

(a) a person who is a part of the Scottish Administration,

(b) the Welsh Ministers,

(c) 10the Department of Finance in Northern Ireland, or

(d) the Registrar General for Northern Ireland.

(3) Information may only be disclosed under this section for the purposes
of any or all of the statistical functions of a devolved authority.

(4) Information may only be disclosed under this section in response to a
15request in writing by a devolved authority which specifies—

(a) the information which is sought, and

(b) the purposes for which it is sought.

(5) A request under subsection (4) may request information to be disclosed
on more than one date specified in the notice within a period specified
20in the notice.

(6) Information may be disclosed under this section only if—

(a) the Board is satisfied that the information is required for the
purposes of the statistical functions of the devolved authority
which are specified in the request,

(b) 25the Board is satisfied that the information will not be used for
any other purpose, and

(c) if the information was obtained by the Board from a public
authority, the authority consents to the disclosure.

(7) The Board may—

(a) 30disclose information under this section subject to conditions to
be met by the devolved authority;

(b) from time to time modify conditions subject to which
information has been disclosed;

(c) in the case of information which it is disclosing in response to a
35request to which subsection (5) applies, cease to disclose
information in response to the request if any of the conditions
are breached.

(8) A devolved authority may only use information disclosed under this
section for the purposes for which it was disclosed.

(9) 40In disclosing information under subsection (1), the Board must have
regard to the following codes of practice issued by the Information
Commissioner under section 51(3) of the Data Protection Act 1998, so
far as they apply to the information in question—

(a) any code which makes provision about the identification and
45reduction of the risks to privacy of a proposal to disclose
information;

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(b) any code which makes provision about the information to be
provided to data subjects (within the meaning of that Act) about
the use to be made of information collected from them.

(10) The duty in subsection (9) to have regard to a code of practice does not
5affect any other requirement for the Board to have regard to a code of
practice under the Data Protection Act 1998 in disclosing the
information.

(11) In the application of section 39 to personal information which has been
disclosed to a devolved authority under this section, paragraphs (c)
10and (i) of subsection (4) of that section do not apply.

(12) This section does not authorise the making of a disclosure which
would—

(a) breach any obligation of confidence owed by the Board,

(b) contravene the Data Protection Act 1998,

(c) 15be prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the
Investigatory Powers Act 2016, or

(d) breach any other restriction on the disclosure of information
(however imposed).

(13) Until the repeal of Part 1 of the Regulation of Investigatory Powers Act
202000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory
Powers Act 2016 is fully in force, subsection (10)(c) has effect as if it
included a reference to that Part.

(14) Nothing in this section affects the scope of the powers in sections 51 to
53.”

25Part 6 Miscellaneous

OFCOM: reports etc

85 OFCOM reports on infrastructure etc

(1) The Communications Act 2003 is amended as follows.

(2) 30After section 134A insert—

134AA Additional OFCOM reports on infrastructure etc

(1) OFCOM may prepare reports dealing with—

(a) any of the electronic communications network matters listed in
section 134B(1);

(b) 35any of the electronic communications services matters listed in
section 134B(2).

(2) OFCOM may publish a report under this section in such manner as
they consider appropriate for bringing it to the attention of persons
who, in their opinion, are likely to have an interest in it.

(3) 40Before publishing a report under this section OFCOM must consider—

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(a) whether any of the information to be contained in it is
information that they could refuse to disclose in response to a
request under the Freedom of Information Act 2000, and

(b) if so, whether that information should be excluded from the
5report.

(4) This section does not affect OFCOM’s duty to prepare reports under
section 134A.

134AB Publication of information required for purpose of preparing reports

(1) OFCOM may publish—

(a) 10any relevant section 135 information, and

(b) any information derived from relevant section 135 information.

(2) Before publishing information under this section OFCOM must
consider—

(a) whether any of the information that they propose to publish is
15information that they could refuse to disclose in response to a
request under the Freedom of Information Act 2000, and

(b) if so, whether that information should be published.

(3) In this section “relevant section 135 information” means information
required by OFCOM under section 135 for the purpose of preparing a
20report under section 134A or 134AA.”

(3) In section 134B (networks and services matters)—

(a) in subsections (1) and (2), for “section 134A” substitute “sections 134A
and 134AA”, and

(b) in subsection (4), after “134A” insert “or 134AA”.

(4) 25In section 135(3) (information required for purposes of OFCOM functions),
after paragraph (ic) insert—

(ica) preparing a report under section 134AA;”.

(5) In section 393(6)(a) (general restrictions on disclosure of information), after
“26” insert “, 134AB”.

86 30Comparative overviews of quality and prices

(1) The Communications Act 2003 is amended as follows.

(2) After section 134C insert—

“Comparative overviews
134D Comparative overviews of quality and prices

(1) 35OFCOM may, in the interest of the end-users of public electronic
communications services, carry out comparative overviews of the
quality and prices of such services.

(2) OFCOM may publish a comparative overview carried out under this
section in such manner as they consider appropriate for bringing it to
40the attention of persons who, in their opinion, are likely to have an
interest in it.”

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(3) In section 136 (information required for related purposes)—

(a) in subsection (1) for “specified in subsection (2)” substitute “of carrying
out comparative overviews under section 134D”, and

(b) omit subsection (2).

(4) 5In section 393(6) (general restrictions on disclosure of information), after
paragraph (b) insert—

(ba) limits the matters that may be published as part of a
comparative overview carried out by OFCOM under section
134D;”.

10OFCOM: information

87 Conditions about allocation of telephone numbers

In section 58 of the Communications Act 2003 (conditions about allocation and
adoption of telephone numbers), after subsection (2) insert—

(2A) General conditions may also require a communications provider to
15whom telephone numbers have been allocated—

(a) to provide OFCOM with any information that was not required
to accompany the application for allocation of the numbers
when it was made but which is now required to accompany
such applications;

(b) 20to inform OFCOM of any changes to information that
accompanied the application for allocation of the numbers or
that has been provided in accordance with a condition set under
paragraph (a);

(c) to inform OFCOM of any proposal by the provider to cease to
25provide an electronic communications network or electronic
communications service;

(d) to inform OFCOM of any circumstances or events of a
description specified in the condition.”

88 Provision of information to OFCOM

(1) 30Section 135 of the Communications Act 2003 (information required for
purposes of functions) is amended as follows.

(2) For subsection (1) substitute—

(1) OFCOM may require a person falling within subsection (2) to provide
them with all such information as they consider necessary for the
35purpose of carrying out their functions under—

(a) section 14(1),

(b) section 26, so far as relating to matters in relation to which they
have functions under this Chapter, or

(c) this Chapter.”

(3) 40In the heading for “Chapter 1” substitute “certain OFCOM”.

89 Information required from communications providers

(1) The Communications Act 2003 is amended as follows.

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(2) After section 137 insert—

137A Information required from communications providers

(1) OFCOM may require a communications provider—

(a) to publish any information held by the provider, or

(b) 5to provide any such information to OFCOM for publication by
OFCOM.

(2) The information that OFCOM may require the communications
provider to publish or provide under subsection (1) includes
information that OFCOM require the provider to produce, generate or
10obtain for that purpose.

(3) For that purpose OFCOM may, in particular, require the
communications provider—

(a) to collect or retain any information that the provider would not
otherwise collect or retain,

(b) 15to process, collate or analyse any information held by the
provider, or

(c) to answer any questions.

(4) The power conferred by this section may be exercised only—

(a) in connection with OFCOM’s functions—

(i) 20under Part 1, so far as relating to electronic
communications, or

(ii) under this Chapter, and

(b) in such a way as is proportionate to the use to which the
information is to be put in connection with those functions.

(5) 25The power conferred by this section is to be exercised by a demand,
contained in a notice served on the communications provider, that—

(a) describes the information required to be published or provided,
and

(b) sets out OFCOM’s reasons for requiring it to be published or
30provided.

(6) Before serving the notice on the communications provider, OFCOM
must—

(a) serve a draft of the notice on the provider and inform the
provider of the period for making representations, and

(b) 35consider any representations made by the provider within that
period which—

(i) identify restrictions on the disclosure or publication of
information that would or might prevent the provider
from complying with the notice, or

(ii) 40otherwise relate to the practicability of complying with
it.

(7) The communications provider must publish or provide the information
required by the notice in such manner and form, in accordance with
such other requirements, and within such reasonable period, as may be
45specified by OFCOM.

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(8) Where OFCOM publish anything provided to them pursuant to
subsection (1)(b) they must do so in such manner and form as they
consider appropriate.

137B Section 137A: confidential matters

(1) 5In exercising functions under section 137A, OFCOM must have regard
to the need to exclude from publication, so far as that is practicable, the
matters which are confidential in accordance with subsections (2) and
(3).

(2) A matter is confidential under this subsection if—

(a) 10it relates specifically to the affairs of a particular body, and

(b) publication of that matter would or might, in OFCOM’s
opinion, seriously and prejudicially affect the interests of that
body.

(3) A matter is confidential under this subsection if—

(a) 15it relates to the private affairs of an individual, and

(b) publication of that matter would or might, in OFCOM’s
opinion, seriously and prejudicially affect the interests of that
individual.”

(3) In section 138 (notification of contravention of information requirements)—

(a) 20in subsection (1), for “135 or 136” substitute “135, 136 or 137A”, and

(b) for subsection (2)(d) substitute—

(d) specifies what the person must do in order to comply
with the requirement;”.

(4) In section 140 (suspending service provision for information contraventions),
25in subsections (1)(a) and (7), for “135 and 136, or either” substitute “135, 136 and
137A, or any”.

(5) In section 144 (offences in connection with information requirements)—

(a) in subsection (1), after “or 136” insert “, or who contravenes a
requirement imposed under section 137A,”,

(b) 30in subsection (2)(b), for “provide the required information” substitute
“comply with the requirement”,

(c) in subsection (3)—

(i) for “135 or 136” substitute “135, 136 or 137A”, and

(ii) after “provides” (in both places) insert “or publishes”, and

(d) 35in subsection (5), for paragraph (b) substitute—

(b) a confirmation decision has been given under section
139A in respect of that requirement and the period
allowed under that decision has expired without the
requirement have been complied with; and”.

(6) 40In section 145(1) (statement of policy on information gathering)—

(a) in paragraph (a), for “135 to 136” substitute “135, 136 and 137A”, and

(b) in paragraph (b), for “those sections” substitute “sections 135 and 136”.

(7) In section 393(6)(a) (general restrictions on disclosure of information), before
“or 390” insert “, 137A”.

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Appeals

90 Appeals from decisions of OFCOM and others: standard of review

(1) The Communications Act 2003 is amended as follows.

(2) In section 193(2) (reference of price control matters to the CMA), for “is to be
5performed” substitute “, having regard to the principles to be applied by the
Tribunal under section 194A(2), is to be performed”.

(3) In subsection (6) of that section omit “on the merits under section 195”.

(4) Before section 195 (decisions of the Tribunal) insert—

194A Disposal of appeals under section 192 (other than against certain
10decisions of Secretary of State)

(1) This section applies to an appeal against a decision referred to in section
192(1)(a), (b), (c), (d)(iii) or (e).

(2) The Tribunal must decide the appeal, by reference to the grounds of
appeal set out in the notice of appeal, by applying the same principles
15as would be applied by a court on an application for judicial review.

(3) The Tribunal may—

(a) dismiss the appeal or quash the whole or part of the decision to
which it relates; and

(b) where it quashes the whole or part of that decision, remit the
20matter back to the decision-maker with a direction to reconsider
and make a new decision in accordance with the ruling of the
Tribunal.

(4) The decision-maker must comply with a direction under subsection
(3)(b).

(5) 25In its application to a decision of the Tribunal under this section,
paragraph 1(2)(b) of Schedule 4 to the Enterprise Act 2002 (exclusion of
commercial information from documents recording Tribunal
decisions) is to have effect as if, for the reference to the undertaking to
which commercial information relates, there were substituted a
30reference to any person to whom it relates.

(6) In this section “the decision-maker” means the person who made the
decision appealed against.”

(5) Section 195 (decisions of the Tribunal) is amended as follows.

(6) For subsection (1) substitute—

(1) 35This section applies to an appeal against a decision referred to in section
192(1)(d)(i), (ii), (iia) or (iv).”

(7) Until section 20(2) of the Digital Economy Act 2010 comes into force, the
amendment made by subsection (6) has effect with the omission of “, (iia)”.

(8) In subsections (3) to (6), for “the decision-maker” in each place substitute “the
40Secretary of State”.

(9) Omit subsection (9).