National Security and Investment Bill (HL Bill 165)

Part 2 continued    

Financial assistance

30 Financial assistance

(1)The Secretary of State may, with the consent of the Treasury, give financial
assistance to or in respect of an entity in consequence of the making of a final
5order.

(2)“Financial assistance” means loans, guarantees or indemnities, or any other
kind of financial assistance (actual or contingent).

(3)If during any relevant period the amount given under this section totals £100
million or more, the Secretary of State must as soon as practicable lay a report
10of the amount before the House of Commons.

(4)If during a relevant period in which a report has been laid under subsection (3)
any further amount is given under this section, the Secretary of State must as
soon as practicable lay a report of the amount before the House of Commons.

(5)“Relevant period” means—

(a)15the period beginning with the day on which this section comes into
force and ending with the following 31 March, and

(b)each subsequent period of 12 months.

CMA functions

31 Interaction with CMA functions under Part 3 of Enterprise Act 2002

(1)20This section applies at any time when a final order is in force, or a final
notification has been given, in relation to a trigger event which involves, or
would involve, two or more enterprises ceasing to be distinct enterprises for
the purposes of Part 3 of the Enterprise Act 2002 (“the 2002 Act”).

(2)The Secretary of State may direct the Competition and Markets Authority (“the
25CMA”) to do, or not to do, anything under Part 3 of the 2002 Act in relation to
the trigger event if the Secretary of State reasonably considers that the direction
is necessary and proportionate for the purpose of preventing, remedying or
mitigating a risk to national security.

(3)Before giving a direction under this section, the Secretary of State must consult
30the CMA and such other persons as the Secretary of State considers
appropriate.

(4)The Secretary of State must publish a direction given under this section in such
manner as the Secretary of State considers appropriate.

(5)The duty of the CMA to comply with a direction given under this section
35applies regardless of any other duty imposed on the CMA.

Part 3 Enforcement and Appeals

Offences

32 Offence of completing notifiable acquisition without approval

(1)5A person who, pursuant to a notifiable acquisition—

(a)gains control in circumstances falling within section 6(2)(a), or

(b)acquires a right or interest in circumstances falling within section
6(2)(b),

commits an offence if, without reasonable excuse, that person completes the
10notifiable acquisition without the approval of the Secretary of State in one of
the ways mentioned in section 13(2).

(2)Subsection (1) applies even if a call-in notice or a validation notice has been
given in relation to the notifiable acquisition.

(3)An offence is committed under this section notwithstanding the effect of
15section 13(1).

33 Offence of failing to comply with order

(1)A person commits an offence if, without reasonable excuse, the person fails to
comply with a requirement to which the person is subject under or by virtue of
an interim order or a final order.

(2)20Where a person is convicted of an offence under this section, the court may
make an order requiring that person, within such period as may be specified
by the order, to comply with a requirement to which the person is subject
under or by virtue of an interim order or a final order.

34 Offences: information and attendance of witnesses

(1)25A person commits an offence if—

(a)the person fails, without reasonable excuse, to comply with a
requirement of an information notice or an attendance notice, or

(b)the person intentionally or recklessly alters, suppresses or destroys or
causes or permits the alteration, suppression or destruction of any
30information the person has been required by an information notice to
provide.

(2)A person commits an offence if the person intentionally obstructs or delays the
making of a copy of information provided in response to an information notice.

(3)A person commits an offence if—

(a)35the person supplies any information to the Secretary of State (including
by way of giving evidence pursuant to an attendance notice) in
connection with a function of the Secretary of State under this Act,

(b)the information is false or misleading in a material respect, and

(c)the person knows that, or is reckless as to whether, it is false or
40misleading in a material respect.

(4)A person commits an offence if—

(a)the person supplies any information to another person (other than the
Secretary of State),

(b)the person supplying the information knows that the information is to
be used for the purpose of supplying information to the Secretary of
5State in connection with a function of the Secretary of State under this
Act,

(c)the information is false or misleading in a material respect, and

(d)the person supplying the information knows that, or is reckless as to
whether, it is false or misleading in a material respect.

(5)10Where a person is convicted of an offence under subsection (1) or (2), the court
may make an order requiring that person, within such period as may be
specified by the order—

(a)to comply with a requirement in an information notice,

(b)to comply with a requirement in an attendance notice, or

(c)15to permit the making of a copy of information.

(6)Any reference in subsection (1) to destroying information includes a reference
to destroying the means of reproducing information recorded otherwise than
in legible form.

35 Offences in relation to sharing information

(1)20It is an offence for a person to use or disclose information in contravention of
section 54 or 55(1).

(2)It is a defence for a person charged with an offence under this section to prove
that the person reasonably believed that—

(a)the use or disclosure was lawful, or

(b)25the information had already and lawfully been made available to the
public.

36 Offences by bodies corporate etc

(1)If an offence under this Act is committed by a body—

(a)with the consent or connivance of an officer of the body, or

(b)30due to any neglect on the part of such an officer,

the officer, as well as the body, is guilty of the offence and liable to be
proceeded against and punished accordingly.

(2)In this section—

• “body” means a body corporate, a partnership or an unincorporated
  35association other than a partnership,

• “officer of a body”—

  (a)

  in relation to a body corporate, means a director, member of the
  committee of management, chief executive, manager, secretary
  or other similar officer of the body, or a person purporting to act
  40in any such capacity,

  (b)

  in relation to a partnership, means a partner or person
  purporting to act as a partner,

  (c)

  in relation to an unincorporated association other than a
  partnership, means a person who is concerned in the

  National Security and Investment BillPage 23

  a

  management or control of the body or purports to act in the
  capacity of a person so concerned.

(3)In subsection (2) “director” includes—

(a)a person occupying in relation to a body corporate the position of a
5director (by whatever name called),

(b)a person in accordance with whose directions or instructions (not being
advice given in a professional capacity) the directors of that body are
accustomed to act, and

(c)a person who has an interest or right in, or in relation to, the body
10corporate that (whether alone or together with other interests or rights
held by the person) enables the person materially to influence the
policy of the body corporate.

(4)If the affairs of a body corporate are managed by its members, subsection (1)
applies in relation to the acts and defaults of a member in connection with the
15member’s functions of management as if the member were a director of the
body.

(5)The Secretary of State may by regulations provide for the modification of any
provision of this section in its application to a body corporate or
unincorporated association formed or recognised under the law of a country or
20territory outside the United Kingdom.

Prosecution and penalties

37 Prosecution

Proceedings for an offence under this Act may be instituted—

(a)in England and Wales, only by the Director of Public Prosecutions, and

(b)25in Northern Ireland, only by the Director of Public Prosecutions for
Northern Ireland.

38 Proceedings against partnerships etc

(1)Proceedings for an offence under this Act may be brought—

(a)where the offence is alleged to have been committed by a partnership,
30against the partnership in the firm name,

(b)where the offence is alleged to have been committed by an
unincorporated association other than a partnership, against the
association in its own name.

(2)Rules of court relating to the service of documents have effect in relation to
35such proceedings as if the partnership or unincorporated association were a
body corporate.

(3)For the purposes of such proceedings the following provisions apply as they
apply in relation to a body corporate—

(a)section 33 of the Criminal Justice Act 1925 and Schedule 3 to the
40Magistrates’ Courts Act 1980,

(b)section 18 of the Criminal Justice Act (Northern Ireland) 1945 (c. 15
(N.I.)) and Schedule 4 to the Magistrates’ Court (Northern Ireland)
Order 1981 (SI 1981/1675 (N.I. 26)).

(4)A fine imposed on a partnership on its conviction for an offence is to be paid
out of the partnership assets.

(5)A fine imposed on an unincorporated association other than a partnership on
its conviction for an offence is to be paid out of the funds of the association.

39 5Offences: penalties

(1)A person who commits an offence under section 32 (completing notifiable
acquisition without approval) or 33 (failing to comply with interim or final
order) is liable—

(a)on summary conviction in England and Wales, to imprisonment for a
10term not exceeding 12 months, or a fine (or both),

(b)on summary conviction in Scotland, to imprisonment for a term not
exceeding 12 months, or a fine not exceeding the statutory maximum
(or both),

(c)on summary conviction in Northern Ireland, to imprisonment for a
15term not exceeding 6 months, or a fine not exceeding the statutory
maximum (or both),

(d)on conviction on indictment, to imprisonment for a term not exceeding
5 years, or a fine (or both).

(2)A person who commits an offence under section 34 (offences in relation to
20supplying information and attendance of witnesses) or 35 (offences in relation
to sharing information) is liable—

(a)on summary conviction in England and Wales, to imprisonment for a
term not exceeding 12 months, or a fine (or both),

(b)on summary conviction in Scotland, to imprisonment for a term not
25exceeding 12 months, or a fine not exceeding the statutory maximum
(or both),

(c)on summary conviction in Northern Ireland, to imprisonment for a
term not exceeding 6 months, or a fine not exceeding the statutory
maximum (or both),

(d)30on conviction on indictment, to imprisonment for a term not exceeding
2 years, or a fine (or both).

(3)In relation to an offence committed before paragraph 24(2) of Schedule 22 to
the Sentencing Act 2020 comes into force, the references in subsection (1)(a)
and (2)(a) to 12 months are to be read as references to 6 months.

35Civil sanctions

40 Power to impose monetary penalties

(1)Subject to section 43(1), the Secretary of State may give a notice imposing a
monetary penalty on a person if the Secretary of State is satisfied, beyond
reasonable doubt, that the person has committed an offence under—

(a)40section 32 (completing notifiable acquisition without approval),

(b)section 33 (failing to comply with interim or final order), or

(c)section 34 (offences in relation to supplying information and
attendance of witnesses),

(including where the person is liable to be proceeded against by virtue of
45section 36).

(2)A notice under this section is referred to in this Act as a penalty notice.

(3)In this Act “monetary penalty” means a requirement to pay to the Secretary of
State a penalty of an amount determined by the Secretary of State.

(4)For an offence under section 33 or 34(1)(a), a monetary penalty may be—

(a)5a fixed amount (“a fixed penalty”),

(b)an amount calculated by reference to a daily rate (“a daily rate
penalty”), or

(c)a combination of a fixed penalty and a daily rate penalty.

(5)For an offence under section 32 or for any other offence under section 34, the
10monetary penalty may be a fixed penalty only.

(6)The amount of the monetary penalty is to be such amount as the Secretary of
State considers appropriate but it may not exceed the permitted maximum, as
set out in section 41.

(7)When determining a monetary penalty under this section, the Secretary of
15State must have regard, in particular, to—

(a)the seriousness of the offence,

(b)the desirability of deterring both the person on whom the penalty is
imposed and others from committing the offence to which the penalty
relates,

(c)20the possibility, and desirability, of rectifying any failure to which the
offence relates,

(d)any steps taken by the person on whom the penalty is imposed towards
rectifying any failure to which the offence relates, and

(e)the ability of the person on whom the penalty is imposed to pay the
25penalty.

(8)A penalty notice must include information as to—

(a)the grounds for imposing the monetary penalty,

(b)whether the penalty is a fixed penalty, a daily rate penalty or a
combination of both and how it is calculated,

(c)30in the case of a fixed penalty, the amount of the penalty,

(d)in the case of a daily rate penalty, the amount of the daily rate, the day
on which the amount first starts to accumulate and the day on which,
or the circumstances in which, it ceases to accumulate,

(e)how the amount of the penalty was determined,

(f)35how payment may be made,

(g)the period within which payment is to be made (which must be at least
28 days),

(h)rights of appeal,

(i)the consequences of non-payment.

(9)40For the purposes of a daily rate penalty—

(a)the first day on which the amount may start to accumulate is the day
after the day on which the penalty notice is given,

(b)unless the Secretary of State determines an earlier date, the daily rate
ceases to accumulate at the beginning of the earliest of—

(i)45the day on which the requirement to comply to which the
offence relates is satisfied,

(ii)the day on which that requirement no longer applies.

(10)A monetary penalty imposed under this section is to be paid out of—

(a)the partnership assets where imposed on a partnership, and

(b)the funds of the association where imposed on an unincorporated
association other than a partnership.

41 5Permitted maximum penalties

(1)The following are the permitted maximum fixed penalties for an offence under
section 32 or 33—

(a)if the offence is committed by a business, the higher of 5% of the total
value of the turnover of the business (both in and outside of the United
10Kingdom and including any business owned or controlled by the
business) and £10 million,

(b)if the offence is committed otherwise than by a business, £10 million.

(2)The following are the permitted maximum amounts per day for a daily rate
penalty for an offence under section 33—

(a)15if the offence is committed by a business, the higher of 0.1% of the total
turnover of the business (both in and outside of the United Kingdom
and including any business owned or controlled by the business) and
£200,000,

(b)if the offence is committed otherwise than by a business, £200,000.

(3)20The permitted maximum fixed penalty for an offence under section 34(1)(a) is
£30,000.

(4)The permitted maximum amount per day for a daily rate penalty for an offence
under section 34(1)(a) is £15,000.

(5)The permitted maximum fixed penalty for an offence under section 34(1)(b) is
25£30,000.

(6)The permitted maximum fixed penalty for an offence under section 34(2) is
£30,000.

(7)The permitted maximum fixed penalty for an offence under section 34(3) or (4)
is £30,000.

(8)30The Secretary of State may by regulations—

(a)provide that a person of a description specified in the regulations is or
is not a business for the purposes of this section,

(b)make provision for determining when a business is to be treated as
controlled by another business for the purposes of this section,

(c)35make provision for determining the turnover (both in and outside the
United Kingdom) of a business for the purposes of this section,

(d)amend subsection (1) or (2) so as to alter the percentage for the time
being specified there,

(e)amend any of subsections (1) to (7) by substituting a different sum for
40any sum for the time being specified there.

(9)The regulations may in particular—

(a)include by virtue of subsection (8)(c) provision as to the amounts which
are, or which are not, to be treated as comprising the turnover of a
business, or provision as to the date or dates by reference to which the
45turnover of a business is to be determined,

(b)make provision for the Secretary of State to determine matters of a
description specified in the regulations (including the matters
mentioned in paragraph (a)).

42 Review, variation and revocation of monetary penalties

(1)5The Secretary of State must keep a monetary penalty imposed by a penalty
notice under review and may vary or revoke the penalty notice as the Secretary
of State considers appropriate.

(2)If a penalty is revoked under this section, the Secretary of State must, as soon
as practicable, give a notice to the person upon whom the penalty was
10imposed.

(3)If a penalty, or the period within which a penalty is to be paid, is varied under
this section, the Secretary of State must, as soon as practicable, give a notice to
the person on whom the penalty was imposed which—

(a)states the variation and the reasons for the variation,

(b)15includes information about rights of appeal and consequences of non-
payment.

(4)A notice under subsection (3) is referred to in this Act as a penalty variation
notice.

43 Monetary penalties: criminal proceedings and convictions

(1)20A penalty notice may not be given to a person in respect of an offence if—

(a)criminal proceedings have been instituted but not concluded in respect
of the offence, or

(b)the person has been convicted of the offence.

(2)Where a person has paid, or is required to pay, a monetary penalty under a
25penalty notice, no criminal proceedings may be instituted against the person in
respect of the offence to which the notice relates.

44 Recovering penalties

(1)Subsections (2) to (8) apply if all or part of a monetary penalty imposed by a
penalty notice is unpaid by the time it is required to be paid.

(2)30The unpaid balance carries interest from time to time at the rate for the time
being specified in section 17 of the Judgments Act 1838.

(3)Where the Secretary of State considers it appropriate to do so, the Secretary of
State may require so much of the penalty as has not already been paid to be
paid immediately.

(4)35The Secretary of State may recover any of the penalty and any interest that has
not been paid if—

(a)no appeal relating to the penalty has been brought under section 50
during the period within which such an appeal may be brought, or

(b)an appeal has been determined or withdrawn.

(5)40In England and Wales, and in Northern Ireland, the penalty is recoverable as if
it were payable under an order of the High Court.

(6)In Scotland, the penalty may be enforced in the same manner as an extract
registered decree arbitral bearing a warrant for execution issued by the sheriff
court of any sheriffdom in Scotland.

(7)Where action is taken under this section for the recovery of a sum payable
5under a penalty notice, the penalty is—

(a)in relation to England and Wales, to be treated for the purposes of
section 98 of the Courts Act 2003 (register of judgments and orders etc)
as if it were a judgment entered in the High Court, and

(b)in relation to Northern Ireland, to be treated for the purposes of Article
10116 of the Judgments Enforcement (Northern Ireland) Order 1981 (SI
1981/226 (N.I. 6)) (register of judgments) as if it were a judgment in
respect of which an application has been accepted under Article 22 or
23(1) of that Order.

(8)Any sums received by the Secretary of State by way of a monetary penalty, or
15interest in respect of such a penalty, under this Act must be paid into the
Consolidated Fund.

45 Monetary penalties: cost recovery

(1)The Secretary of State may give a notice to a person requiring the person to pay
to the Secretary of State the costs incurred by the Secretary of State in relation
20to the imposition of a monetary penalty on that person under section 40.

(2)A notice under subsection (1) is referred to in this Act as a cost recovery notice.

(3)The reference to “costs” in subsection (1) includes, in particular—

(a)investigation costs,

(b)administration costs,

(c)25costs of obtaining expert advice (including legal advice).

(4)A cost recovery notice must specify the amount to be paid and include
information as to—

(a)the grounds for giving the notice,

(b)how payment may be made,

(c)30the period within which payment is to be made (which must be at least
28 days),

(d)rights of appeal,

(e)the consequences of non-payment.

(5)A person required to pay an amount to the Secretary of State under this section
35may require the Secretary of State to give a detailed breakdown of that amount.

(6)Costs imposed under this section are to be paid out of—

(a)the partnership assets where imposed on a partnership, and

(b)the funds of the association where imposed on an unincorporated
association other than a partnership.

46 40Review, variation and revocation of cost recovery notice

(1)The Secretary of State must keep a cost recovery notice under review and may
vary or revoke it as the Secretary of State considers appropriate.

(2)If a cost recovery notice is revoked under this section, the Secretary of State
must, as soon as practicable, give a notice to the person to whom the cost
recovery notice was given.

(3)If the costs, or the period within which the costs are to be paid, is varied under
5this section, the Secretary of State must, as soon as practicable, give a notice to
the person to whom the cost recovery notice was given which—

(a)states the variation and the reasons for the variation,

(b)includes information about rights of appeal and consequences of non-
payment.

(4)10A notice under subsection (3) is referred to in this Act as a cost variation notice.

47 Enforcement of cost recovery notice

(1)Subsections (2) to (8) apply if some or all of the costs payable under a cost
recovery notice are unpaid by the time when they are required to be paid.

(2)The unpaid balance carries interest from time to time at the rate for the time
15being specified in section 17 of the Judgments Act 1838.

(3)Where the Secretary of State considers it appropriate to do so, the Secretary of
State may require so much of the costs as have not already been paid to be paid
immediately.

(4)The Secretary of State may recover from the person any of the costs and any
20interest as has not been paid if—

(a)no appeal relating to the costs has been brought under section 51
during the period within which such an appeal may be brought, or

(b)an appeal has been determined or withdrawn.

(5)In England and Wales, and in Northern Ireland, the costs are recoverable as if
25they were payable under an order of the High Court.

(6)In Scotland, the costs may be enforced in the same manner as an extract
registered decree arbitral bearing a warrant for execution issued by the sheriff
court of any sheriffdom in Scotland.

(7)Where action is taken under this section for the recovery of a sum payable
30under a cost recovery notice, the costs are—

(a)in relation to England and Wales, to be treated for the purposes of
section 98 of the Courts Act 2003 (register of judgments and orders etc)
as if they were a judgment entered in the High Court, and

(b)in relation to Northern Ireland, to be treated for the purposes of Article
35116 of the Judgments Enforcement (Northern Ireland) Order 1981 (SI
1981/226 (N.I. 6)) (register of judgments) as if they were a judgment in
respect of which an application has been accepted under Article 22 or
23(1) of that Order.

(8)Any sums received by the Secretary of State by way of costs, or interest in
40respect of such costs, under this Act must be paid into the Consolidated Fund.