National Security and Investment Bill (HL Bill 165)

Part 3 continued    

Civil proceedings

48 Enforcement through civil proceedings

(1)A person’s duty to comply with a requirement to which the person is subject
under or by virtue of an information notice, an attendance notice, an interim
5order or a final order is enforceable by civil proceedings by the Secretary of
State for an injunction, or for specific performance of a statutory duty under
section 45 of the Court of Session Act 1988, or for any other appropriate relief
or remedy.

(2)Subsection (1) applies whether or not the person is in the United Kingdom.

10Judicial review and appeals

49 Procedure for judicial review of certain decisions

(1)This section applies to a claim for judicial review of a relevant decision.

(2)A “relevant decision” means—

(a)a decision or action under or by virtue of any of the following
15provisions, but not including any such decision or action that is directly
related to a Part 3 function of the Secretary of State—

(i)section 19,

(ii)section 20,

(iii)section 21,

(iv)20section 54(1) and (2)(a),

(v)section 54(6) to (8), insofar as the decision or action is related to
the disclosure of information under section 54(2)(a),

(vi)section 55(1) and (3), insofar as the decision or action is related
to the disclosure of information under section 54(2)(a),

(vii)25section 56,

(viii)section 57, other than a decision or action related to the
disclosure of information under section 54(2)(b) to (f) or (3),

(b)a decision or action under or by virtue of section 54(9), insofar as the
decision or action is related to a decision or action falling within
30paragraph (a)(iv) or (v),

(c)a decision or action under or by virtue of—

(i)any provision of Part 1 of this Act not mentioned in paragraph
(a),

(ii)Part 2 of this Act,

(iii)35section 53, or

(iv)section 62,

and “action” includes a failure to act.

(3)A “Part 3 function” means a function under or by virtue of this Part of this Act.

(4)The court may entertain proceedings for a claim to which this section applies
40only if the claim form is filed before the end of the period of 28 days beginning
with the day after the day on which the grounds to make the claim first arose,
unless the court considers that exceptional circumstances apply.

(5)In the application of this section to Scotland—

(a)subsection (1) has effect with the substitution of “an application to the
supervisory jurisdiction of the court in respect” for “a claim for judicial
review”,

(b)subsection (4) has effect with the substitution of—

(i)5“an application” for “a claim”,

(ii)“application is made” for “claim form is filed”,

(iii)“the application” for “the claim”.

(6)In the application of this section to Northern Ireland—

(a)subsection (1) has effect with the substitution of “an application” for “a
10claim”,

(b)subsection (4) has effect with the substitution of—

(i)“an application” for “a claim”,

(ii)“application for leave to apply for judicial review” for “claim
form is filed”,

(iii)15“the application” for “the claim”.

(7)In this section “the court” means—

(a)the High Court in England and Wales,

(b)the Court of Session in Scotland, and

(c)the High Court in Northern Ireland.

50 20Appeals against monetary penalties

(1)A person who is given a penalty notice or a variation notice may appeal to the
court.

(2)A person may not appeal under this section after the end of the period of 28
days beginning with the day after the day on which the notice is given to the
25person.

(3)On an appeal against a penalty notice the court may—

(a)confirm or quash the decision to impose the monetary penalty,

(b)confirm or reduce the amount of the penalty,

(c)confirm or vary the period within which all or part of the penalty is to
30be paid.

(4)On an appeal against a variation notice the court may confirm, vary or quash
the variation but may not increase the amount of the monetary penalty.

(5)In this section “the court” means—

(a)the High Court in England and Wales,

(b)35the Court of Session in Scotland, and

(c)the High Court in Northern Ireland.

(6)Where an appeal is brought under this section, the monetary penalty is not
payable until the appeal is determined or withdrawn, unless the court orders
otherwise.

51 40Appeals against costs

(1)A person given a cost recovery notice or a cost variation notice may appeal to
the court.

(2)A person may not appeal under this section after the end of the period of 28
days beginning with the day after the day on which the notice is given to the
person.

(3)On an appeal against a cost recovery notice the court may—

(a)5confirm or quash the decision to impose costs,

(b)confirm or reduce the amount payable,

(c)confirm or vary the period within which payment is to be made.

(4)On an appeal against a cost variation notice the court may confirm, vary or
quash the variation but may not increase the amount payable.

(5)10In this section “the court” means—

(a)the High Court in England and Wales,

(b)the Court of Session in Scotland, and

(c)the High Court in Northern Ireland.

(6)Where an appeal is brought under this section, the costs are not payable until
15the appeal is determined or withdrawn, unless the court orders otherwise.

Territorial application

52 Extra-territorial application and jurisdiction to try offences

(1)Sections 32, 33, 34 and 35 apply—

(a)whether the offence is committed in the United Kingdom or elsewhere,

(b)20if the offence is committed by an individual, whatever the nationality
of the individual committing the offence,

(c)if the offence is committed otherwise than by an individual, regardless
of whether the body corporate or unincorporated association is formed
or recognised under the law of a country or territory outside the United
25Kingdom.

(2)Where an offence under this Part is committed outside the United Kingdom—

(a)proceedings for the offence may be taken at any place in the United
Kingdom, and

(b)the offence may for all incidental purposes be treated as having been
30committed at any such place.

(3)In the application of subsection (2) to Scotland, any such proceedings against a
person may be taken—

(a)in any sheriff court district in which the person is apprehended or is in
custody, or

(b)35in such sheriff court district as the Lord Advocate may determine.

(4)In subsection (3) “sheriff court district” is to be read in accordance with the
Criminal Procedure (Scotland) Act 1995 (see section 307(1) of that Act).

Part 4 Miscellaneous

Administrative requirements

53 Procedure for service, etc

(1)5The Secretary of State may by regulations make provision for the procedure
which must be followed in giving a notice or serving an order under this Act.

(2)The regulations may, in particular, make provision—

(a)as to the manner in which a document must be given or served,

(b)as to the address to which a document must be sent,

(c)10requiring, or allowing, a document to be sent electronically,

(d)for treating a document as having been given, received or served on a
date or at a time determined in accordance with the regulations,

(e)as to what must, or may, be done if an intended recipient is not an
individual,

(f)15as to what must, or may, be done if a person is treated by virtue of
Schedule 1 as holding an interest or right for the purposes of this Act,

(g)as to what must, or may, be done, if an intended recipient is outside the
United Kingdom.

(3)Section 7 of the Interpretation Act 1978 (service of notice by post) has effect in
20relation to provisions made under this Act subject to any provision made by
regulations under this section.

Information gateways

54 Disclosure of information

(1)A public authority may disclose information to the Secretary of State for the
25purpose of facilitating the exercise by the Secretary of State of functions under
this Act.

(2)The Secretary of State may disclose information received under this Act to a
public authority or an overseas public authority—

(a)for the purpose of facilitating the exercise by the Secretary of State of
30functions under this Act,

(b)for the prevention or detection of crime,

(c)for the purposes of a criminal investigation,

(d)for the purposes of criminal proceedings,

(e)for the purposes of civil proceedings under this Act, or

(f)35for the purpose of protecting national security.

(3)The Secretary of State may also disclose such information to an overseas public
authority for the purpose of the exercise of corresponding functions of
overseas public authorities.

(4)A person who receives information under subsection (2) or (3) may not—

(a)40use the information for a purpose other than the purpose for which it
was disclosed, or

(b)further disclose the information,

except with the consent of the Secretary of State (which may be general or
specific).

(5)Subsection (4) does not apply to information to which section 55 applies
5(information received from HMRC).

(6)In deciding whether to disclose information under this section, the Secretary of
State must consider whether the disclosure would prejudice, to an
unreasonable degree, the commercial interests of any person concerned.

(7)In deciding whether to disclose information to an overseas public authority
10under this section, the Secretary of State must have regard, in particular, to the
following considerations—

(a)whether the law of the country or territory to whose authority the
disclosure would be made provides protection against self-
incrimination in criminal proceedings which corresponds to the
15protection provided in any part of the United Kingdom, and

(b)whether the matter in respect of which the disclosure is sought is
sufficiently serious to justify making the disclosure.

(8)Except as provided by section 57, the disclosure of information under this
section does not breach—

(a)20any obligation of confidence owed by the person making the
disclosure, or

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

(9)In this section—

• 25“overseas public authority” means a person in any country or territory
  outside the United Kingdom which appears to the Secretary of State to
  exercise functions of a public nature which—

  (a)

  correspond to the functions of the Secretary of State under this
  Act, or

  (b)

  30relate to any of the purposes mentioned in paragraphs (b) to (f)
  of subsection (2),

• “public authority” has the same meaning as in section 6 of the Human
  Rights Act 1998.

55 Disclosure of information held by HMRC

(1)35A person who receives information disclosed under section 54 by Her
Majesty’s Revenue and Customs (or anyone acting on their behalf) may not—

(a)use the information for a purpose other than the purpose mentioned in
section 54(1), or

(b)further disclose the information,

40except with the consent of the Commissioners for Her Majesty’s Revenue and
Customs (which may be general or specific).

(2)If a person discloses information in contravention of subsection (1)(b) which
relates to a person whose identity—

(a)is specified in the disclosure, or

(b)45can be deduced from it,

section 19 of the Commissioners for Revenue and Customs Act 2005 (offence of
wrongful disclosure) applies in relation to that disclosure as it applies in
relation to a disclosure of information in contravention of section 20(9) of that
Act (and, accordingly, section 35 of this Act does not apply to that disclosure).

(3)5Except as provided by section 57, the disclosure of information under this
section does not breach—

(a)any obligation of confidence owed by the person disclosing the
information, or

(b)any other restriction on the disclosure of information (however
10imposed).

CMA information

56 Duty of CMA to provide information and assistance

The Competition and Markets Authority must give the Secretary of State—

(a)such information in its possession as the Secretary of State may by
15direction reasonably require to enable the Secretary of State to exercise
functions under this Act,

(b)any other assistance which the Secretary of State may by direction
reasonably require for the purpose of facilitating the exercise by the
Secretary of State of functions under this Act and which it is within the
20power of the Authority to give.

Data protection

57 Data protection

(1)This section applies to a duty or power to disclose or use information where the
duty or power is imposed or conferred by or under any provision of Parts 1 to
254 of this Act.

(2)A duty or power to which this section applies does not operate to require or
authorise the disclosure or use of information if the disclosure or use—

(a)would contravene the data protection legislation (but the duty or
power is to be taken into account in determining whether the disclosure
30or use would contravene that legislation), or

(b)is prohibited by any of Parts 1 to 7 of, or Chapter 1 of Part 9 of, the
Investigatory Powers Act 2016.

(3)In this section “data protection legislation” has the same meaning as in the Data
Protection Act 2018 (see section 3 of that Act).

35Minor amendments, etc

58 Minor and consequential amendments and revocations

Schedule 2 contains minor amendments and amendments and revocations
which are consequential on this Act.

Disclosure of information under the Enterprise Act 2002

59 Overseas information disclosure

In section 243(3)(d) of the Enterprise Act 2002, omit “3 or”.

Defamation

60 5Defamation

For the purposes of the law relating to defamation, absolute privilege attaches
to any notice or direction given, or decision, report or order made, by the
Secretary of State or the Competition and Markets Authority in the exercise of
functions under or by virtue of this Act.

10Annual report

61 Annual report

(1)The Secretary of State must, in relation to each relevant period—

(a)prepare a report in accordance with this section, and

(b)lay a copy of it before each House of Parliament as soon as is practicable
15after the end of that period.

(2)Each report must provide details of—

(a)the expenditure incurred by the Secretary of State in giving, or in
connection with giving, financial assistance falling within section 30,

(b)the amount of the actual or contingent liabilities of the Secretary of State
20at the end of the relevant period in respect of such financial assistance,

(c)the number of mandatory notices accepted,

(d)the number of mandatory notices rejected,

(e)the sectors of the economy in relation to which mandatory notices were
given,

(f)25the number of voluntary notices accepted,

(g)the number of voluntary notices rejected,

(h)the sectors of the economy in relation to which voluntary notices were
given,

(i)the number of call-in notices given,

(j)30the sectors of the economy in relation to which call-in notices were
given,

(k)the number of final notifications given,

(l)the number of final orders made.

(3)“Relevant period” means—

(a)35the 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.

Part 5 Final provisions

62 Transitional and saving provision in relation to the Enterprise Act 2002

(1)Nothing in this Act has effect in relation to anything that took place before 12
5November 2020.

(2)Subsections (3) and (4) apply in relation to events which constitute a trigger
event described in section 2(4), unless any action has been taken under this Act
in relation to the events.

(3)If, disregarding the effect of any amendment made by this Act to the Enterprise
10Act 2002, the Secretary of State could, in relation to the events—

(a)give an intervention notice under section 42(2) of that Act,

(b)give a special intervention notice under section 59(2) of that Act, or

(c)give a European intervention notice under section 67(2) of that Act,

the Secretary of State may give the notice on or after the day on which this
15section comes into force.

(4)If any such notice is given in relation to events to which this section applies—

(a)before the day on which this section comes into force, or

(b)by virtue of subsection (3), on or after the day on which this section
comes into force,

20nothing in this Act has effect in relation to the events (and, accordingly, the
Enterprise Act 2002 continues to have effect in relation to the events,
disregarding the effect of any amendment made by this Act to that Act.)

(5)Regulations under section 66(4)(b) may make further provision for the
purposes of this section.

63 25Regulations under this Act

(1)This section applies to regulations under this Act other than regulations under
section 66 (commencement regulations).

(2)Regulations are to be made by statutory instrument.

(3)Regulations may contain consequential, transitional, transitory or saving
30provision.

(4)Subject to subsection (5), a statutory instrument containing regulations is
subject to annulment in pursuance of a resolution of either House of
Parliament.

(5)A statutory instrument containing (whether alone or with other provision)
35regulations under any of the following may not be made unless a draft of it has
been laid before Parliament and approved by a resolution of each House—

(a)section 6(1),

(b)section 11(3),

(c)section 41(8).

64 Financial provision

Any expenditure incurred by the Secretary of State under or by virtue of this
Act is to be paid out of money provided by Parliament.

65 Interpretation

5In this Act—

• “acquirer” has the meaning given by section 5(2),

• “assessment period” has the meaning given in section 23,

• “attendance notice” means a notice given under section 20(1),

• “business” includes—

  (a)

  10a professional practice,

  (b)

  an undertaking which is carried on for gain or reward,

  (c)

  an undertaking in the course of which goods or services are
  supplied otherwise than free of charge, and

  references to a person carrying on business include references to a
  15person carrying on business in partnership with one or more other
  persons,

• “call-in notice” means a notice given under section 1(1),

• “cost recovery notice” means a notice given under section 45(1),

• “cost variation notice” means a notice given under section 46(3),

• 20“final notification” has the meaning given by section 26(2),

• “final order” means an order made under section 26(3),

• “information notice” means a notice given under section 19(1),

• “interim order” means an order made under section 25(1),

• “mandatory notice” means a notice given under section 14(1),

• 25“monetary penalty” has the meaning given by section 40(3),

• “notifiable acquisition” has the meaning given by section 6(2) (and see
  subsection (3) of that section),

• “notifiable acquisition regulations” means regulations made under
  section 6(1),

• 30“penalty notice” means a notice given under section 40(1),

• “penalty variation notice” means a notice given under section 42(3),

• “qualifying asset” has the meaning given by section 7(4),

• “qualifying entity” has the meaning given by section 7(2),

• “the territorial sea” means the territorial sea adjacent to the United
  35Kingdom,

• “trigger event” has the meaning given by section 5(1) and includes, where
  the context requires, a trigger event that has not yet taken place,

• “United Kingdom national” means an individual who is—

  (a)

  a British citizen, a British overseas territories citizen, a British
  40National (Overseas) or a British Overseas citizen,

  (b)

  a person who under the British Nationality Act 1981 is a British
  subject, or

  (c)

  a British protected person within the meaning of that Act,

• “validation application” has the meaning given by section 16(2),

• 45“validation notice” means a notice given under section 15(2)(b),
  16(7)(b)(ii) or 17(2) (and see section 15(3)),

• “voluntary notice” means a notice given under section 18(2),

• “working day”, in relation to a part of the United Kingdom, means a day
  other than—

  (a)

  a Saturday or Sunday, or

  (b)

  a day which is a bank holiday under the Banking and Financial
  5Dealings Act 1971 in that or any other part of the United
  Kingdom.

66 Short title, commencement and extent

(1)This Act may be cited as the National Security and Investment Act 2021.

(2)This Part of this Act and the following provisions of this Act (which contain
10powers to make regulations) come into force on the day on which this Act is
passed—

(a)section 6(1),

(b)section 11(3),

(c)section 14(4),

(d)15section 16(3),

(e)section 18(4),

(f)section 36(5),

(g)section 41(8),

(h)section 53(1).

(3)20The rest of this Act comes into force on such day as the Secretary of State may
by regulations made by statutory instrument appoint.

(4)Regulations under subsection (3) may—

(a)appoint different days for different purposes;

(b)make transitional, transitory or saving provision.

(5)25This Act extends to England and Wales, Scotland and Northern Ireland, except
that the amendment or repeal of any enactment has the same extent as the
enactment amended or repealed.