National Security and Investment Bill (HL Bill 183)

Part 1 continued    

16 Application for retrospective validation of notifiable acquisition

(1)Any person materially affected by the fact that a notifiable acquisition to which
this section applies (see section 15(1)) is void, may apply to the Secretary of
State for a validation notice in relation to the acquisition.

(2)5An application under subsection (1) is referred to in this Act as a validation
application.

(3)The Secretary of State may by regulations prescribe the form and content of a
validation application.

(4)Subject to subsection (8), as soon as reasonably practicable after receiving a
10validation application, the Secretary of State must decide whether to reject or
accept the application.

(5)The Secretary of State may reject the application on one or more of the
following grounds—

(a)it does not meet the requirements of this section,

(b)15it does not meet the requirements prescribed by the regulations,

(c)it does not contain sufficient information to allow the Secretary of State
to decide whether to give a call-in notice in relation to the acquisition.

(6)If the application is rejected, the Secretary of State must, as soon as practicable,
provide reasons in writing for that decision to the person who made the
20application.

(7)If the application is accepted, the Secretary of State must—

(a)as soon as practicable, notify each relevant person, and

(b)before the end of the review period—

(i)give a call-in notice in relation to the acquisition, or

(ii)25give a validation notice in relation to the acquisition to each
relevant person and notify those persons that no further action
will be taken under this Act in relation to the acquisition.

(8)The Secretary of State is not required to consider a validation application in
relation to an acquisition if, in the opinion of the Secretary of State, there has
30been no material change in circumstances since a previous validation
application in relation to the acquisition was made.

(9)In this section—

• “relevant person” means the person who made the validation application
  and such other persons as the Secretary of State considers appropriate;

• 35the “review period” is the period of 30 working days beginning with the
  day on which the notification under subsection (7)(a) is given to the
  person who made the validation application.

17 Retrospective validation of notifiable acquisition following call-in

(1)This section applies where the Secretary of State has given a call-in notice
40pursuant to—

(a)subsection (2)(a) of section 15, or

(b)subsection (7)(b)(i) of section 16,

(and, accordingly, the trigger event to which the call-in notice relates is, or
includes, a notifiable acquisition to which those sections apply.)

(2)If the Secretary of State gives a final notification in relation to the call-in notice,
the Secretary of State must also give a validation notice in relation to the
acquisition.

(3)A validation notice under this section must be given to—

(a)5each person to whom the final notification is given,

(b)the person (if any) who made an application in relation to the
acquisition under section 16, and

(c)such other persons as the Secretary of State considers appropriate.

(4)Subsection (5) applies if the Secretary of State makes a final order in relation to
10the call-in notice.

(5)So much of the notifiable acquisition as would, had it been completed after the
making of the final order, have been completed in accordance with the order is
to be treated as having been completed with the approval of the Secretary of
State (and, accordingly, is not void).

15Voluntary notification of trigger event

18 Voluntary notification procedure

(1)This section does not apply in relation to—

(a)arrangements which would result in a notifiable acquisition,

(b)a trigger event that is, or includes, a notifiable acquisition.

(2)20A seller, acquirer or the qualifying entity concerned may give a notice to the
Secretary of State stating that —

(a)a trigger event has taken place in relation to a qualifying entity or a
qualifying asset, or

(b)arrangements are in progress or contemplation which, if carried into
25effect, will result in a trigger event taking place in relation to a
qualifying entity or a qualifying asset.

(3)A notice under subsection (2) is referred to in this Act as a voluntary notice.

(4)The Secretary of State may by regulations prescribe the form and content of a
voluntary notice.

(5)30As soon as reasonably practicable after receiving the voluntary notice, the
Secretary of State must decide whether to reject or accept the notice.

(6)The Secretary of State may reject the voluntary notice on one or more of the
following grounds—

(a)it does not meet the requirements of this section,

(b)35it does not meet the requirements prescribed by the regulations,

(c)it does not contain sufficient information to allow the Secretary of State
to decide whether to give a call-in notice,

(d)there is no reasonable prospect of being able to give a call-in notice due
to the operation of the time-limits in subsection (2) or (4) of section 2.

(7)40If the voluntary notice is rejected, the Secretary of State must, as soon as
practicable, provide reasons in writing for that decision to each relevant
person.

(8)If the voluntary notice is accepted, the Secretary of State must—

(a)as soon as practicable, notify each relevant person, and

(b)before the end of the review period—

(i)give a call-in notice in relation to the trigger event, or

(ii)notify each relevant person that no further action will be taken
5under this Act in relation to the trigger event.

(9)The “review period” is the period of 30 working days beginning with the day
on which the notification under subsection (8)(a) is given to the person who
gave the voluntary notice; but this does not affect the operation of the time-
limits in subsections (2) and (4) of section 2.

(10)10In this section—

• “relevant person” means the person who gave the voluntary notice and
  such other persons as the Secretary of State considers appropriate,

• “seller”, in relation to a trigger event, means a person who has ceded
  control of the qualifying entity or a qualifying asset (or in relation to a
  15trigger event that has not yet taken place, would cede that control).

Information, etc

19 Power to require information

(1)The Secretary of State may give a notice to a person (subject to section 21) to
require the person to provide any information in relation to the exercise of the
20Secretary of State’s functions under this Act which—

(a)is specified or described in the notice, or falls within a category of
information specified or described in the notice, and

(b)is within that person’s possession or power.

(2)The Secretary of State is not to require the provision of information under this
25section except where the requirement to provide information is proportionate
to the use to which the information is to be put in the carrying out of the
Secretary of State’s functions under this Act.

(3)A notice under subsection (1) is referred to in this Act as an information notice.

(4)An information notice may—

(a)30specify the manner in which the information is to be provided,

(b)specify a time limit for—

(i)providing the information,

(ii)notifying the Secretary of State that the information is not in the
person’s possession or power, or

35require the person to provide any information within their possession
or power which would enable the Secretary of State to find the
information required by the notice.

(5)An information notice must—

(a)specify the purpose for which the notice is given, and

(b)40state the possible consequences of not complying with the notice.

(6)A person is not required under this section to provide any information which
that person could not be compelled to provide in evidence in civil proceedings
before the court.

(7)A reference in this section to the provision of information includes a reference
to the provision of a legible and intelligible copy of information recorded
otherwise than in legible form.

(8)A person to whom information is provided under this section may copy the
5information.

(9)In this section “the court” means—

(a)in relation to England and Wales or Northern Ireland, the High Court,

(b)in relation to Scotland, the Court of Session, and

(c)in relation to a person outside the United Kingdom, the High Court of
10England and Wales.

20 Attendance of witnesses

(1)The Secretary of State may give a notice to a person (subject to section 21) to
require the person—

(a)to attend at a time and place specified in the notice, and

(b)15to give evidence to the Secretary of State in relation to the exercise of the
Secretary of State’s functions under this Act.

(2)The Secretary of State is not to require the giving of evidence under this section
except where the requirement to give evidence is proportionate to the use to
which the evidence is to be put in the carrying out of the Secretary of State’s
20functions under this Act.

(3)A notice under subsection (1) is referred to in this Act as an attendance notice.

(4)An attendance notice must—

(a)specify the purpose for which the notice is given, and

(b)state the possible consequences of not complying with the notice.

(5)25A person is not required under this section to give any evidence which that
person could not be compelled to give in civil proceedings before the court.

(6)A person is not required, in compliance with an attendance notice, to go more
than 10 miles from their place of residence unless necessary travelling expenses
are paid or offered to that person.

(7)30In this section “the court” means—

(a)in relation to evidence given in England and Wales or Northern
Ireland, the High Court,

(b)in relation to evidence given in Scotland, the Court of Session, and

(c)in relation to evidence given outside the United Kingdom, the High
35Court of England and Wales.

21 Information notices and attendance notices: persons outside the UK

(1)The Secretary of State may give an information notice or an attendance notice
to a person outside the United Kingdom only if the person falls within
subsection (2), (3) or (4) of this section.

(2)40A person falls within this subsection if the person is—

(a)a United Kingdom national,

(b)an individual ordinarily resident in the United Kingdom,

(c)a body incorporated or constituted under the law of any part of the
United Kingdom, or

(d)carrying on business in the United Kingdom.

(3)A person falls within this subsection if—

(a)5a trigger event has taken place in relation to a qualifying entity which
is formed or recognised under the law of any part of the United
Kingdom, or

(b)arrangements are in progress or contemplation which, if carried into
effect, will result in a trigger event taking place in relation to a
10qualifying entity of that description,

and the person is the acquirer.

(4)A person falls within this subsection if—

(a)a trigger event has taken place in relation to a qualifying asset which —

(i)is within section 7(4)(a) or (b) and is situated in the United
15Kingdom or the territorial sea, or

(ii)is within section 7(4)(c) and is used in connection with activities
carried on in the United Kingdom, or

(b)arrangements are in progress or contemplation which, if carried into
effect, will result in a trigger event taking place in relation to a
20qualifying asset within paragraph (a),

and the person is the acquirer.

22 False or misleading information

(1)This section applies where false or misleading information is provided to the
Secretary of State—

(a)25in a mandatory notice,

(b)in a validation application,

(c)in a voluntary notice,

(d)in response to an information notice, or

(e)in response to an attendance notice.

(2)30Where a decision made by the Secretary of State under this Act is materially
affected by the false or misleading information, the Secretary of State may
reconsider the decision and may affirm, vary or revoke it.

(3)Where a decision is varied or revoked under this section, the Secretary of State
must give notice to that effect to such persons as the Secretary of State
35considers appropriate.

(4)If a revoked decision was—

(a)a decision to give a call-in notice,

(b)a decision to make or revoke a final order, or

(c)a decision to give a final notification,

40the Secretary of State may give a further call-in notice and section 2(1) does not
apply.

(5)Where a decision is revoked under this section, the time limits in section 2(2)
and (4) do not apply to the case concerned, but a call-in notice (or a further call-
in notice) may not be given after the end of the period of 6 months beginning
45with the day on which the information was discovered to be false or
misleading.

Part 2 Remedies

Assessment period

23 Meaning of “assessment period”

(1)5This section defines “assessment period” in relation to a call-in notice.

(2)The assessment period begins with the day on which the call-in notice is given
to the acquirer.

(3)In this section—

(a)“the initial period” is the period of 30 working days beginning with the
10day mentioned in subsection (2),

(b)“the additional period” is the period of 45 working days beginning with
the first working day after the day on which the initial period ends,

(c)a “voluntary period” is such period of working days, beginning with
the first working day after the day on which the additional period (or
15the previous voluntary period) ends, as may be agreed in writing
between the Secretary of State and the acquirer.

(4)The assessment period ends at the end of the initial period unless, before the
end of the initial period, the Secretary of State gives an additional period notice
to each person to whom the call-in notice was given (see subsection (8)).

(5)20If an additional period notice is given, the assessment period ends at the end of
the additional period unless, before the end of the additional period, a
voluntary period is agreed.

(6)If a voluntary period is agreed, the assessment period ends at the end of the
voluntary period, or at the end of any further voluntary period which is
25agreed.

(7)The Secretary of State must give notice of any voluntary period, or further
voluntary period to each person to whom the call-in notice was given.

(8)An “additional period notice” is a notice which the Secretary of State may give
if the Secretary of State—

(a)30reasonably believes that—

(i)a trigger event has taken place or that arrangements are in
progress or contemplation which, if carried into effect, will
result in a trigger event, and

(ii)a risk to national security has arisen from the trigger event or
35would arise from the trigger event if carried into effect, and

(b)reasonably considers that the additional period is required to assess the
trigger event further.

(9)A voluntary period or further voluntary period may be agreed by the Secretary
of State only if the Secretary of State—

(a)40is satisfied, on the balance of probabilities, that—

(i)a trigger event has taken place or that arrangements are in
progress or contemplation which, if carried into effect, will
result in a trigger event, and

(ii)a risk to national security has arisen from the trigger event or
would arise from the trigger event if carried into effect, and

(b)reasonably considers that the period is required to consider whether to
make a final order or what provision a final order should contain.

24 5Effect of information notice and attendance notice

(1)This section applies if an information notice or an attendance notice is given at
any time during the assessment period in relation to a call-in notice.

(2)As soon as practicable after giving the information notice or attendance notice,
the Secretary of State must notify each relevant person of—

(a)10the fact that an information notice or attendance notice has been given,
and

(b)the time limit specified in the notice for complying with the
requirements of the notice.

(3)As soon as practicable after—

(a)15the Secretary of State is satisfied that the requirements of the
information notice or the attendance notice have been complied with,
or

(b)(if earlier) the time specified in the information notice or the attendance
notice for complying with those requirements has passed,

20the Secretary of State must notify each relevant person confirming that fact.

(4)Any day falling within the period beginning with the day on which the notice
under subsection (2) is given and ending with the day on which a notice under
subsection (3) is given does not count for the purposes of calculating the initial,
additional or voluntary period under section 23.

(5)25In this section “relevant person” means each person to whom the call-in notice
was given.

Interim and final orders

25 Interim orders

(1)The Secretary of State may, during the assessment period in relation to a call-
30in notice, make an order if the Secretary of State reasonably considers that the
provisions of the order are necessary and proportionate for the purpose of
preventing or reversing pre-emptive action, or mitigating its effects.

(2)In subsection (1), “pre-emptive action” means action which might prejudice the
exercise of the Secretary of State’s functions under this Act in relation to the
35call-in notice.

(3)An order under subsection (1) is referred to in this Act as an “interim order”.

(4)An interim order may include—

(a)provision requiring a person, or description of person, to do, or not to
do, particular things,

(b)40provision for the appointment of a person to conduct or supervise the
conduct of activities on such terms and with such powers as may be
specified or described in the order,

(c)provision requiring a person, or description of person, not to disclose
the contents of the order except to the extent permitted by the order,

(d)consequential, supplementary or incidental provision.

(5)Provision made by or under an interim order may extend to a person’s conduct
5outside the United Kingdom or the territorial sea only if the person is—

(a)a United Kingdom national,

(b)an individual ordinarily resident in the United Kingdom,

(c)a body incorporated or constituted under the law of any part of the
United Kingdom, or

(d)10carrying on business in the United Kingdom.

(6)An interim order comes into force at such time as is determined by or under
the order.

(7)An interim order ceases to have effect at the earliest of—

(a)the giving of a final notification or the coming into force of a final order
15in relation to the call-in notice,

(b)such time as is determined by or under the order,

(c)such time as it is revoked.

26 Final orders and final notifications

(1)The Secretary of State must, before the end of the assessment period in relation
20to a call-in notice—

(a)make a final order, or

(b)give a final notification to each person to whom the call-in notice was
given.

(2)In this section—

(a)25a “final notification” is a notification that no further action in relation to
the call-in notice is to be taken under this Act,

(b)a “final order” is an order under subsection (3).

(3)The Secretary of State may, during the assessment period, make a final order if
the Secretary of State—

(a)30is satisfied, on the balance of probabilities, that—

(i)a trigger event has taken place or that arrangements are in
progress or contemplation which, if carried into effect, will
result in a trigger event, and

(ii)a risk to national security has arisen from the trigger event or
35would arise from the trigger event if carried into effect, and

(b)reasonably considers that the provisions of the order are necessary and
proportionate for the purpose of preventing, remedying or mitigating
the risk.

(4)Before making a final order the Secretary of State must consider any
40representations made to the Secretary of State.

(5)A final order may include—

(a)provision requiring a person, or description of person, to do, or not to
do, particular things,

(b)provision for the appointment of a person to conduct or supervise the
conduct of activities on such terms and with such powers as may be
specified or described in the order,

(c)provision requiring a person, or description of person, not to disclose
5the contents of the order except to the extent permitted by the order,

(d)consequential, supplementary or incidental provision.

(6)Provision made by or under a final order may extend to a person’s conduct
outside the United Kingdom or the territorial sea only if the person is—

(a)a United Kingdom national,

(b)10an individual ordinarily resident in the United Kingdom,

(c)a body incorporated or constituted under the law of any part of the
United Kingdom, or

(d)carrying on business in the United Kingdom.

(7)A final order comes into force at such time as is determined by or under the
15order.

(8)A final order ceases to have effect at such time as is determined by or under the
order, unless it is revoked before that time.

27 Review, variation and revocation of orders

(1)This section applies in relation to an interim order and a final order.

(2)20The Secretary of State must keep each order under review and may vary or
revoke it.

(3)If a person required to comply with an order requests that the Secretary of State
vary or revoke it, the Secretary of State must consider the request as soon as
practicable after receiving it.

(4)25But the Secretary of State is not required to consider such a request in relation
to a final order if, in the opinion of the Secretary of State, there has been no
material change of circumstances—

(a)since the order was made or last varied, or

(b)in the case of a request from a person who has made a previous request
30in relation to the order, since the previous request was made.

28 Orders: supplementary

(1)This section applies in relation to an interim order and a final order.

(2)As soon as practicable after making or varying an order, the Secretary of State
must serve the order, or the order as varied, on—

(a)35each person who is required to comply with the order,

(b)each person to whom the call-in notice was given, and

(c)such other persons as the Secretary of State considers appropriate.

(3)As soon as practicable after varying an order, the Secretary of State must give
notice to any person who was previously required to comply with the order
40but is no longer required to comply with it.

(4)Subject to subsection (5), each order (including each order as varied) or
explanatory material accompanying the order must—

(a)state the date on which the order or any variation comes into force or
how that date is to be determined,

(b)state each person, or description of person, who is required to comply
with the order,

(c)5describe the trigger event and entity or asset concerned,

(d)state the reasons for making or varying the order,

(e)state the possible consequences of not complying with the order,

(f)provide information about—

(i)how to apply to the Secretary of State for an order to be varied
10or revoked, and

(ii)the procedure for judicial review or, in Scotland, an application
to the supervisory jurisdiction of the Court of Session.

(5)The Secretary of State may exclude from the copy of an order served on any
person within subsection (2), or from any explanatory material accompanying
15the order, anything the disclosure of which the Secretary of State considers—

(a)would be likely to prejudice the commercial interests of any person, or

(b)would be contrary to the interests of national security.

(6)As soon as practicable after revoking an order, the Secretary of State must give
notice to the persons mentioned in subsection (2) that the order has been
20revoked.

29 Publication of notice of final order

(1)Subject to subsection (3), the Secretary of State must publish, in such manner
as the Secretary of State considers appropriate, notice of the fact that—

(a)a final order has been made,

(b)25a final order has been varied or revoked.

(2)The notice under subsection (1) must be published as soon as practicable and
must—

(a)state the date on which the order, variation or revocation comes into
force, or how that date is to be determined,

(b)30state each person, and each description of person, who is required to
comply with the order,

(c)describe the trigger event and entity or asset concerned,

(d)include a summary of the order, variation or revocation, its effect and
the reasons for it,

(e)35include any other information that the Secretary of State considers it
appropriate to include.

(3)The Secretary of State may exclude from the notice under subsection (1)
anything the publication of which the Secretary of State considers—

(a)would be likely to prejudice the commercial interests of any person, or

(b)40would be contrary to the interests of national security.