Enterprise and Regulatory Reform Act 2013

(141A) (1) This section applies where the Secretary of State makes a full PI reference. (2) The CMA shall, on an ordinary reference, decide whether any feature, or combination of features, of each relevant market (within the meaning given by section 134(3)) prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom. (3) The CMA shall, on a cross-market reference, decide in relation to each feature and each combination of the features specified in the reference, whether the feature or combination of features, as it relates to goods or services of one or more than one of the descriptions so specified, prevents, restricts or distorts competition in connection with the supply or acquisition of any goods or services in the United Kingdom or a part of the United Kingdom. (4) The CMA shall, if it has decided that there is an adverse effect on competition, decide whether, taking account only of any adverse effect on competition and the admissible public interest consideration or considerations concerned, any feature or combination of features which gave rise to an adverse effect on competition operates or may be expected to operate against the public interest. (5) The CMA shall, if it has decided that any such feature or combination of features operates or may be expected to operate against the public interest, also decide separately the following additional questions— (a) whether action should be taken by the Secretary of State under section 147A for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest concerned; (b) whether the CMA should recommend the taking of other action by the Secretary of State, or action by persons other than itself and the Secretary of State, for the purpose of remedying, mitigating or preventing any of the effects adverse to the public interest concerned; and (c) in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented. (6) The CMA shall, if it has decided that there is an adverse effect on competition, also decide separately the following questions (on the assumption that it is proceeding as mentioned in section 148A(2))— (a) whether action should be taken by it under section 138 for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition; (b) whether the CMA should recommend the taking of action by other persons for the purpose of remedying, mitigating or preventing the adverse effect on competition concerned or any detrimental effect on customers so far as it has resulted from, or may be expected to result from, the adverse effect on competition; and (c) in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented. (7) In a case where the Secretary of State has appointed a public interest expert under section 141B in relation to a full PI reference, the CMA shall, in deciding the questions mentioned in subsections (4) and (5), have regard, in particular, to the views of the expert. (8) In deciding the questions mentioned in subsection (5), the CMA shall, in particular, have regard to— (a) the need to achieve as comprehensive a solution as is reasonable and practicable to the effects adverse to the public interest concerned; and (b) any detrimental effects on customers so far as resulting from those effects. (9) In deciding the questions mentioned in subsection (6), the CMA shall, in particular, have regard to— (a) the need to achieve as comprehensive a solution as is reasonable and practicable to the adverse effect on competition concerned; and (b) any detrimental effects on customers so far as resulting from it. (10) In deciding the questions mentioned in subsections (5) and (6), the CMA may, in particular, have regard to the effect of any action on any relevant customer benefits of the feature or features of the market or markets concerned. (11) In this section, “admissible public interest consideration” means any public interest consideration specified in the reference concerned and which the CMA is not under a duty to disregard. (141B) (1) This section applies where the Secretary of State makes a full PI reference. (2) The Secretary of State may appoint one or more than one person to advise the CMA on the questions mentioned in subsections (4) and (5) of section 141A in relation to the reference. (3) A person so appointed shall be a person who appears to the Secretary of State to have particular knowledge of, or expertise in, matters relating to a public interest consideration specified in the reference. (4) Each person so appointed is referred to in this Part as a “public interest expert”. (5) The terms and conditions of appointment of a public interest expert (including, in particular, as to remuneration) are to be determined by the Secretary of State. (6) Any appointment of a public interest expert under this section shall be made within the period of 2 months beginning with the date of the reference concerned. (7) Before appointing a public interest expert the Secretary of State shall consult the chair of the CMA.

• (10) Schedule 10 (which contains amendments of Part 4 of the 2002 Act which are consequential on or otherwise related to this section) has effect.

Investigation powers

Investigation powers: markets

36

• (1) Section 174 of the 2002 Act (investigation powers) is amended as follows.

• (2) For subsections (1) and (2) substitute—

(1) For the purposes of this section, the permitted purposes are the following— (a) assisting the CMA in carrying out its functions under section 5 in relation to a matter in a case where it has published a market study notice; (b) assisting the CMA in carrying out any functions, including enforcement functions, exercisable by it under or by virtue of this Part in connection with a matter that is or has been the subject of a reference under section 131 or 132 or possible reference under section 131; (c) assisting the CMA or the Secretary of State in carrying out any functions, including enforcement functions, of the CMA or (as the case may be) the Secretary of State under or by virtue of this Part in connection with a matter that is or has been the subject of a reference under section 140A(6) or possible reference under section 140A(5) or (6). (2) The CMA may exercise any of the powers in subsections (3) to (5) for a permitted purpose.

• (3) In subsection (6), after “shall” insert

— (a) specify the permitted purpose for which the notice is given, including the function or functions in question; and (b)

.

• (4) After subsection (6) insert—

(6A) The CMA or any person nominated by it for the purpose may, for a permitted purpose, take evidence on oath and for that purpose may administer oaths.

• (5) In subsection (7), for “the purpose mentioned in subsection (1)” substitute “ a permitted purpose ”.

• (6) After subsection (9) insert—

(9A) In subsection (1), “enforcement functions” means— (a) in relation to the CMA— (i) functions conferred by virtue of section 164(2)(b) on the CMA by enforcement orders; (ii) functions of the CMA in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders; (iii) functions of the CMA under or by virtue of section 160 or 162 in relation to enforcement undertakings or enforcement orders; (b) in relation to the Secretary of State— (i) functions conferred by virtue of section 164(2)(b) on the Secretary of State by enforcement orders; (ii) functions of the Secretary of State in relation to the variation, supersession or release of enforcement undertakings or the variation or revocation of enforcement orders; (iii) functions of the Secretary of State under or by virtue of section 160 in relation to enforcement undertakings or enforcement orders.

• (7) For the heading substitute “ Attendance of witnesses and production of documents etc. ”.

• (8) Schedule 11 (which makes provision about the enforcement of the powers under section 174 of the 2002 Act, as amended by this section, and which makes consequential amendments of that Act) has effect.

Interim measures

Interim measures: pre-emptive action: markets

37

• (1) Part 4 of the 2002 Act (market investigations) is amended as follows.

• (2) In section 157 (interim undertakings: Part 4), after subsection (2) insert—

(2A) Subsection (2B) applies where— (a) subsection (1)(a) to (c) applies; and (b) the relevant authority has reasonable grounds for suspecting that pre-emptive action has or may have been taken. (2B) The relevant authority may, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects, accept, from such persons as the relevant authority considers appropriate, undertakings to take such action as the relevant authority considers appropriate.

• (3) After subsection (2B) of that section insert—

(2C) A person may, with the consent of the relevant authority, take action of a particular description where the action would otherwise constitute a contravention of an undertaking accepted under this section.

• (4) In section 158 (interim orders: Part 4), after subsection (2) insert—

(2A) Subsection (2B) applies where— (a) subsection (1)(a) to (c) applies; and (b) the relevant authority has reasonable grounds for suspecting that pre-emptive action has or may have been taken. (2B) The relevant authority may by order, for the purpose of restoring the position to what it would have been had the pre-emptive action not been taken or otherwise for the purpose of mitigating its effects— (a) do anything mentioned in subsection (2)(b) to (d); (b) impose such other obligations, prohibitions or restrictions as it considers appropriate for that purpose.

• (5) After subsection (2B) of that section insert—

(2C) A person may, with the consent of the relevant authority, take action of a particular description where the action would otherwise constitute a contravention of an order under this section.

Time-limits and procedure

Market studies and market investigations: consultation and time-limits

38

Schedule 12 (which makes provision about consultation in relation to decisions whether to make a market investigation reference and about time-limits in relation to the conduct of market studies and the markets investigation reference regime under Part 4 of the 2002 Act) has effect.

CHAPTER 3 — Anti-trust

Investigation powers

Investigations: power to ask questions

39

• (1) Part 1 of the Competition Act 1998 (“the 1998 Act”) (competition) is amended as follows.

• (2) After section 26 (powers when conducting investigations) insert—

(26A) (1) For the purposes of an investigation, the CMA may give notice to an individual who has a connection with a relevant undertaking requiring the individual to answer questions with respect to any matter relevant to the investigation— (a) at a place specified in the notice, and (b) either at a time so specified or on receipt of the notice. (2) The CMA must give a copy of the notice under subsection (1) to each relevant undertaking with which the individual has a current connection at the time the notice is given to the individual. (3) The CMA must take such steps as are reasonable in all the circumstances to comply with the requirement under subsection (2) before the time at which the individual is required to answer questions. (4) Where the CMA does not comply with the requirement under subsection (2) before the time mentioned in subsection (3), it must comply with that requirement as soon as practicable after that time. (5) A notice under subsection (1) must be in writing and must indicate— (a) the subject matter and purpose of the investigation, and (b) the nature of the offence created by section 44. (6) For the purposes of this section— (a) an individual has a connection with an undertaking if he or she is or was— (i) concerned in the management or control of the undertaking, or (ii) employed by, or otherwise working for, the undertaking, and (b) an individual has a current connection with an undertaking if, at the time in question, he or she is so concerned, is so employed or is so otherwise working. (7) In this section, a “relevant undertaking” means an undertaking whose activities are being investigated as part of the investigation in question.

• (3) For the heading of section 26 substitute “ Investigations: powers to require documents and information ”.

• (4) Section 30A (use of statements in prosecution) is amended as follows.

• (5) The existing text becomes subsection (1).

• (6) In subsection (1), for “26 to 28A” substitute “ 26 and 27 to 28A ”.

• (7) After that subsection insert—

(2) A statement by an individual in response to a requirement imposed by virtue of section 26A (a “section 26A statement”) may only be used in evidence against the individual— (a) on a prosecution for an offence under section 44, or (b) on a prosecution for some other offence in a case falling within subsection (3). (3) A prosecution falls within this subsection if, in the proceedings— (a) in giving evidence, the individual makes a statement inconsistent with the section 26A statement, and (b) evidence relating to the section 26A statement is adduced, or a question relating to it is asked, by or on behalf of the individual. (4) A section 26A statement may not be used in evidence against an undertaking with which the individual who gave the statement has a connection on a prosecution for an offence unless the prosecution is for an offence under section 44. (5) For the purposes of subsection (4), an individual has a connection with an undertaking if he or she is or was— (a) concerned in the management or control of the undertaking, or (b) employed by, or otherwise working for, the undertaking.

Civil enforcement of investigation powers

40

• (1) Part 1 of the 1998 Act (competition) is amended as follows.

• (2) After section 40 insert—

(40A) (1) Where the CMA considers that a person has, without reasonable excuse, failed to comply with a requirement imposed on the person under section 26, 26A, 27, 28 or 28A, it may impose a penalty of such amount as it considers appropriate. (2) The amount may be— (a) a fixed amount, (b) an amount calculated by reference to a daily rate, or (c) a combination of a fixed amount and an amount calculated by reference to a daily rate. (3) A penalty imposed under subsection (1) must not— (a) in the case of a fixed amount, exceed such amount as the Secretary of State may by order specify; (b) in the case of an amount calculated by reference to a daily rate, exceed such amount per day as the Secretary of State may so specify; (c) in the case of a fixed amount and an amount calculated by reference to a daily rate, exceed such fixed amount and such amount per day as the Secretary of State may so specify. (4) The fixed amount specified for the purposes of subsection (3)(a) or (c) may not exceed £30,000. (5) The amount per day specified for the purposes of subsection (3)(b) or (c) may not exceed £15,000. (6) In imposing a penalty by reference to a daily rate— (a) no account is to be taken of any days before the service of the notice under section 112 of the Enterprise Act 2002 (as applied by subsection (9)) on the person concerned, and (b) unless the CMA determines an earlier date (whether before or after the penalty is imposed), the amount payable ceases to accumulate at the beginning of the earliest of the days mentioned in subsection (7). (7) The days are— (a) the day on which the requirement concerned is satisfied; (b) the day on which the CMA makes a decision (within the meaning given by section 31(2)) or terminates the investigation in question without making such a decision; (c) if the Secretary of State has made an order under section 31F(1)(b) imposing a time-limit on the making of such a decision, the latest day on which such a decision may be made as a result of the investigation in question. (8) Before making an order under subsection (3), the Secretary of State must consult the CMA and such other persons as the Secretary of State considers appropriate. (9) Sections 112 to 115 of the Enterprise Act 2002 (supplementary provisions about penalties) apply in relation to a penalty imposed under subsection (1) as they apply in relation to a penalty imposed under section 110(1) of that Act. (40B) (1) The CMA must prepare and publish a statement of policy in relation to the use of its powers under section 40A. (2) The CMA must, in particular, include a statement about the considerations relevant to the determination of the nature and amount of any penalty imposed under section 40A. (3) The CMA may revise its statement of policy and, where it does so, it must publish the revised statement. (4) The CMA must consult such persons as it considers appropriate when preparing or revising its statement of policy. (5) If the proposed statement of policy or revision relates to a matter in respect of which a regulator exercises concurrent jurisdiction, those consulted must include that regulator. (6) In deciding whether and, if so, how to proceed under section 40A, the CMA must have regard to the statement of policy which was most recently published under this section at the time when the failure concerned occurred.

• (3) Section 38 (guidance about appropriate level of penalties under section 36) is amended as follows.

• (4) In subsection (1), after “under this Part” insert “ in respect of an infringement of the Chapter 1 prohibition, the Chapter 2 prohibition, the prohibition in Article 81(1) or the prohibition in Article 82 ”.

• (5) In subsection (1A), for “a penalty under this Part” substitute “ such a penalty ”.

• (6) In subsection (8), after “under this Part” insert “ in respect of an infringement of a kind mentioned in subsection (1) ”.

• (7) Section 42 (offences of failure to comply with requirements imposed in investigations and obstruction) is amended as follows.

• (8) Omit subsections (1) to (4).

• (9) In subsection (6), omit “(1) or”.

Extension of powers to issue warrants to CAT

41

Schedule 13 (which amends the 1998 Act to extend the powers under that Act to issue warrants to the Competition Appeal Tribunal) has effect.

Part 1 of the 1998 Act: procedural matters

42

• (1) Part 1 of the 1998 Act (competition) is amended as follows.

• (2) After section 25 (power to investigate) insert—

(25A) (1) Where the CMA decides to conduct an investigation it may publish a notice which may, in particular— (a) state its decision to do so; (b) indicate which of subsections (2) to (7) of section 25 the investigation falls under; (c) summarise the matter being investigated; (d) identify any undertaking whose activities are being investigated as part of the investigation; (e) identify the market which is or was affected by the matter being investigated. (2) Section 57 does not apply to a notice under subsection (1) to the extent that it includes information other than information mentioned in that subsection. (3) Subsection (4) applies if— (a) the CMA has published a notice under subsection (1) which identifies an undertaking whose activities are being investigated, and (b) the CMA subsequently decides (without making a decision within the meaning given by section 31(2)) to terminate the investigation of the activities of the undertaking so identified. (4) The CMA must publish a notice stating that the activities of the undertaking in question are no longer being investigated.

• (3) Schedule 9 (examples of provision that may be made in rules) is amended as follows.

• (4) After paragraph 1 insert—

(1A) (1) Rules may provide for the exercise of a function of the CMA under this Part on its behalf— (a) by one or more members of the CMA Board (see Part 2 of Schedule 4 to the Enterprise and Regulatory Reform Act 2013); (b) by one or more members of the CMA panel (see Part 3 of that Schedule to that Act); (c) by one or more members of staff of the CMA; (d) jointly by one or more of the persons mentioned in paragraph (a), (b) or (c). (2) Sub-paragraph (1) does not apply in relation to any function prescribed in regulations made under section 7(1) of the Civil Aviation Act 1982 (power for Secretary of State to prescribe certain functions of the Civil Aviation Authority which must not be performed on its behalf by any other person).

• (5) After paragraph 13 insert—

(13A) (1) Rules may make provision as to the procedure to be followed by the CMA in holding oral hearings as part of an investigation. (2) Rules may, in particular, make provision as to the appointment of a person mentioned in sub-paragraph (3) who has not been involved in the investigation in question to— (a) chair an oral hearing, and (b) prepare a report following the hearing and give it to the person who is to exercise on behalf of the CMA its function of making a decision (within the meaning given by section 31(2)) as a result of the investigation. (3) The persons are— (a) a member of the CMA Board; (b) a member of the CMA panel; (c) a member of staff of the CMA. (4) The report must— (a) contain an assessment of the fairness of the procedure followed in holding the oral hearing, and (b) identify any other concerns about the fairness of the procedure followed in the investigation which have been brought to the attention of the person preparing the report.

• (6) After paragraph 13A insert—

(13B) (1) Rules may make provision as to arrangements to be made by the CMA for dealing with complaints about the conduct by the CMA of an investigation. (2) Rules may, in particular, make provision as to— (a) the appointment of a person mentioned in sub-paragraph (3) who has not been involved in the investigation in question to consider any such complaint; (b) the time-table for the consideration of any such complaint. (3) The persons are— (a) a member of the CMA Board; (b) a member of the CMA panel; (c) a member of staff of the CMA.

• (7) After paragraph 13B insert—

(13C) Rules may make provision as to the procedure to be followed in a case where, during an investigation, one or more persons notify the CMA that they accept that there has been an infringement of a kind to which the investigation relates.

Interim measures and other sanctions

Threshold for interim measures

43

In section 35 of the 1998 Act (interim measures), in subsection (2)(a), for “serious, irreparable damage” substitute “ significant damage ”.

Penalties: guidance etc.

44

• (1) Part 1 of the 1998 Act (competition) is amended as follows.

• (2) In section 36 (penalties), after subsection (7) insert—

(7A) In fixing a penalty under this section the CMA must have regard to— (a) the seriousness of the infringement concerned, and (b) the desirability of deterring both the undertaking on whom the penalty is imposed and others from— (i) entering into agreements which infringe the Chapter 1 prohibition or the prohibition in Article 81(1), or (ii) engaging in conduct which infringes the Chapter 2 prohibition or the prohibition in Article 82.

• (3) In section 38 (guidance on level of penalties), in subsection (8), before “must have regard” insert “ and the Tribunal ”.

Miscellaneous

Power for Secretary of State to impose time-limits on investigations etc.

45

After section 31E of the 1998 Act insert—

(31F) (1) The Secretary of State may by order impose time-limits in relation to— (a) the conduct by the CMA of investigations or investigations of a description specified in the order; (b) the making by the CMA of decisions (within the meaning given by section 31(2)) as a result of investigations or investigations of such a description. (2) Before making an order under subsection (1), the Secretary of State must consult the CMA and such other persons as the Secretary of State considers appropriate.

Review of operation of Part 1 of 1998 Act

46

• (1) The Secretary of State must—

• (a) review the operation of Part 1 of the 1998 Act, and

• (b) prepare and publish a report on the outcome of the review.

• (2) The report must be published before the end of the period of 5 years beginning with the day on which Part 1 of Schedule 5 (which transfers the functions of the Office of Fair Trading under Part 1 of the 1998 Act to the Competition and Markets Authority) comes into force.

• (3) The Secretary of State must lay the report before Parliament.

CHAPTER 4 — Cartels

Cartel offence

47

• (1) Section 188 of the 2002 Act (cartel offence) is amended as follows.

• (2) In subsection (1), omit “dishonestly”.

• (3) Omit subsection (6).

• (4) After subsection (7) insert—

(8) This section is subject to section 188A.

• (5) After that section insert—

(188A) (1) An individual does not commit an offence under section 188(1) if, under the arrangements— (a) in a case where the arrangements would (operating as the parties intend) affect the supply in the United Kingdom of a product or service, customers would be given relevant information about the arrangements before they enter into agreements for the supply to them of the product or service so affected, (b) in the case of bid-rigging arrangements, the person requesting bids would be given relevant information about them at or before the time when a bid is made, or (c) in any case, relevant information about the arrangements would be published, before the arrangements are implemented, in the manner specified at the time of the making of the agreement in an order made by the Secretary of State. (2) In subsection (1), “relevant information” means— (a) the names of the undertakings to which the arrangements relate, (b) a description of the nature of the arrangements which is sufficient to show why they are or might be arrangements of the kind to which section 188(1) applies, (c) the products or services to which they relate, and (d) such other information as may be specified in an order made by the Secretary of State. (3) An individual does not commit an offence under section 188(1) if the agreement is made in order to comply with a legal requirement. (4) In subsection (3), “legal requirement” has the same meaning as in paragraph 5 of Schedule 3 to the Competition Act 1998. (5) A power to make an order under this section— (a) is exercisable by statutory instrument, (b) may be exercised so as to make different provision for different cases or different purposes, and (c) includes power to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Secretary of State considers appropriate. (6) A statutory instrument containing an order under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

• (6) After section 188A (as inserted by subsection (5) above) insert—

(188B) (1) In a case where the arrangements would (operating as the parties intend) affect the supply in the United Kingdom of a product or service, it is a defence for an individual charged with an offence under section 188(1) to show that, at the time of the making of the agreement, he or she did not intend that the nature of the arrangements would be concealed from customers at all times before they enter into agreements for the supply to them of the product or service. (2) It is a defence for an individual charged with an offence under section 188(1) to show that, at the time of the making of the agreement, he or she did not intend that the nature of the arrangements would be concealed from the CMA. (3) It is a defence for an individual charged with an offence under section 188(1) to show that, before the making of the agreement, he or she took reasonable steps to ensure that the nature of the arrangements would be disclosed to professional legal advisers for the purposes of obtaining advice about them before their making or (as the case may be) their implementation.

• (7) After section 190 of the 2002 Act insert—

(190A) (1) The CMA must prepare and publish guidance on the principles to be applied in determining, in any case, whether proceedings for an offence under section 188(1) should be instituted. (2) The CMA may at any time issue revised or new guidance. (3) Guidance published by the CMA under this section is to be published in such manner as it considers appropriate. (4) In preparing guidance under this section the CMA must consult— (a) the Director of the Serious Fraud Office; (b) the Lord Advocate; and (c) such other persons as it considers appropriate.

• (8) The amendments made by subsections (1) to (6) apply only in relation to agreements falling within section 188(1) of the 2002 Act which—

• (a) are made after the commencement of this section, and

• (b) relate to arrangements made or to be made after that commencement.

Extension of power to issue warrants to CAT

48

• (1) Section 194 of the 2002 Act (power to enter premises under a warrant) is amended as follows.

• (2) In subsection (1), for the words from the beginning to “if he is satisfied” substitute “ On an application made to it by the CMA or, in Scotland, the procurator fiscal, the appropriate body may issue a warrant if it is satisfied ”.

• (3) After subsection (1) insert—

(1A) In subsection (1), “appropriate body” means— (a) in England and Wales and Northern Ireland, the High Court or the Competition Appeal Tribunal; (b) in Scotland, the sheriff.

• (4) After subsection (4) insert—

(4A) An application for a warrant under this section must be made— (a) in the case of an application to the High Court or the sheriff, in accordance with rules of court; (b) in the case of an application to the Competition Appeal Tribunal, in accordance with rules made under section 15.

• (5) In Schedule 4 to that Act, before paragraph 11, but after the cross-heading immediately preceding it, insert—

(10A) (1) Tribunal rules may make provision as to proceedings on an application for a warrant under section 194 of this Act or section 28, 28A, 62, 62A, 63, 65G or 65H of the 1998 Act, including provision— (a) for the Tribunal dealing with the proceedings to consist only of the President or a member of the panel of chairmen; (b) as to the manner in which the proceedings are to be conducted, including provision— (i) for such applications to be determined without a hearing; (ii) in cases where there is a hearing, for it to be held in private if the Tribunal considers it appropriate because it is considering information of a kind mentioned in paragraph 1(2); (c) as to the persons entitled to be heard in such proceedings (where there is a hearing); (d) for requiring persons to attend to give evidence and produce documents, and for authorising the administration of oaths to witnesses; (e) as to the evidence which may be required or admitted and the extent to which it should be oral or written; (f) allowing the Tribunal to fix time-limits with respect to any aspect of the proceedings and to extend any time-limit (before or after its expiry). (2) Paragraphs 2 to 8, and 11 to 17, of this Schedule do not apply in relation to the institution or conduct of proceedings for a warrant mentioned in sub-paragraph (1).

• (6) In section 14 of that Act (constitution of Tribunal for particular proceedings and its decisions), in subsection (5), for “paragraph 18” substitute “ paragraphs 10A(1)(a) and 18 ”.

CHAPTER 5 — Miscellaneous

Enforcement orders: markets and mergers

Enforcement orders: monitoring compliance and determination of disputes

49

In Schedule 8 to the 2002 Act (provision that may be contained in certain enforcement orders made under Part 3 or 4 of that Act), after paragraph 20B insert—

(20C) (1) An order may provide for the appointment of one or more than one person (referred to in this paragraph as an “appointee”) by the relevant authority or by such other persons as may be specified or described in the order to— (a) monitor compliance with such terms of the order as are so specified or described or terms of any directions given under the order; (b) determine any dispute between persons who are subject to the order about what is required by any such terms. (2) An order made by virtue of this paragraph must make provision as to the terms of an appointee's appointment. (3) A determination made by virtue of an order under this paragraph is binding on— (a) any person who is subject to the order; (b) the relevant authority; and (c) in the case where the relevant authority is the Secretary of State, the CMA.

Enforcement orders: provision of information

50

• (1) Schedule 8 to the 2002 Act (provision that may be contained in certain enforcement orders made under Part 3 or 4 of that Act) is amended as follows.

• (2) Omit paragraph 15 (publication etc. of price information).

• (3) Paragraph 17 (publication etc. of other information) is amended as follows.

• (4) In sub-paragraph (1)—

• (a) in the words before paragraph (a), after “publish” insert “ or otherwise notify ”, and

• (b) after paragraph (c) insert—

(d) information in relation to prices of the goods or services supplied; (e) such other information in relation to the goods or services supplied as the relevant authority considers appropriate.

• (5) After sub-paragraph (1) insert—

(1A) An order may prohibit the publication or other notification of information falling within sub-paragraph (1)(a) to (e) by a person supplying goods or services.

• (6) In paragraph 18 (supplementary provision about orders under paragraphs 15 and 17), omit “15 or”.

Concurrency

Powers of sectoral regulators

51

• (1) Section 54 of the 1998 Act (concurrent powers for regulators) is amended as follows.

• (2) In subsection (6)—

• (a) after “may” insert

— (a) prescribe circumstances in which the CMA may decide that, in a particular case, it is to exercise Part 1 functions in respect of the case rather than a regulator; (b)

, and

• (b) after “Secretary of State” insert “ , the CMA ”.

• (3) After subsection (6) insert—

(6A) Where the regulations make provision as mentioned in subsection (6)(a), they must— (a) include provision requiring the CMA to consult the regulator concerned before making a decision that the CMA is to exercise Part 1 functions in respect of a particular case, and (b) provide that, in a case where a regulator has given notice under section 31(1) that it proposes to make a decision (within the meaning given by section 31(2)), the CMA may only decide that it is to exercise Part 1 functions in respect of the case rather than the regulator if the regulator consents.

• (4) After subsection (6A) insert—

(6B) The Secretary of State may by regulations make provision requiring arrangements to be made for the sharing of information between competent persons in connection with concurrent cases. (6C) For the purposes of subsection (6B), “a concurrent case” is a case in respect of which— (a) the CMA considers that Part 1 functions are, or (but for provision made under subsection (5)(e)) would be, exercisable by both it and any regulator; (b) any regulator considers that Part 1 functions are, or (but for provision made under subsection (5)(e)) would be, exercisable by it.

• (5) Schedule 14 (which makes provision governing the relationship between the powers of regulators under the 1998 Act and those under sector-specific legislation) has effect.

Power to remove concurrent competition functions of sectoral regulators

52

• (1) The Secretary of State may make a sectoral regulator order if the Secretary of State considers that it is appropriate to do so for the purpose of promoting competition, within any market or markets in the United Kingdom, for the benefit of consumers.

• (2) A sectoral regulator order is an order that amends one or more enactments so as to remove from a sectoral regulator either or both of the following—

• (a) all the functions of the regulator under Part 1 of the 1998 Act that are exercisable concurrently by the regulator and the Competition and Markets Authority (“the CMA”) or that would be so exercisable but for provision made by virtue of section 54(5)(e) of that Act;

• (b) all the functions of the regulator under Part 4 of the 2002 Act that are exercisable concurrently by the regulator and the CMA.

• (3) A sectoral regulator order may make such other amendments of any enactment as the Secretary of State considers appropriate in consequence of the removal of the functions.

• (4) Each of the following is a sectoral regulator—

• (a) the Office of Communications;

• (b) the Gas and Electricity Markets Authority;

• (c) the Water Services Regulation Authority;

• (d) the Office of Rail and Road ;

• (e) the Northern Ireland Authority for Utility Regulation;

• (f) the Civil Aviation Authority.

• (g) the Payment Systems Regulator established under section 40 of the Financial Services (Banking Reform) Act 2013.

• (h) the Financial Conduct Authority.

• (5) A sectoral regulator order may include transitional, transitory or saving provision.

• (6) A statutory instrument containing a sectoral regulator order is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

• (7) In this section—

• “amend” includes repeal or revoke;

• “enactment” includes—an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978),an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament,an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales, andan enactment contained in, or in an instrument made under, Northern Ireland legislation.

• (8) The references to the CMA in subsection (2) are to be read, in relation to any time before the commencement of section 25(3), as references to the Office of Fair Trading.

Orders under section 52: procedural requirements

53

• (1) If the Secretary of State proposes to make a sectoral regulator order, the Secretary of State must carry out the first stage consultation.

• (2) The first stage consultation is consultation with—

• (a) the regulator whose functions would be removed by the order,

• (b) the Competition and Markets Authority,

• (c) where the regulator is the Office of Rail and Road , the Scottish Ministers,

• (d) where the regulator is the Northern Ireland Authority for Utility Regulation, the Department of Enterprise, Trade and Investment in Northern Ireland and the Department for Regional Development in Northern Ireland, and

• (e) where the regulator is the Water Services Regulation Authority, the Welsh Ministers.

• (3) If (following the first stage consultation) the Secretary of State still proposes to make a sectoral regulator order, the Secretary of State must carry out the second stage consultation.

• (4) The second stage consultation is consultation with—

• (a) the persons consulted at the first stage,

• (b) any bodies who appear to the Secretary of State to represent the interests of persons in respect of whom the functions that would be removed by the order are exercisable (“regulated providers”),

• (c) any bodies who appear to the Secretary of State to represent the interests of persons who use the services supplied by regulated providers, and

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

• (5) The Secretary of State must give the following information to each of the persons consulted as part of the first stage or second stage consultation—

• (a) an explanation as to whether the Secretary of State is proposing to remove the functions of the regulator mentioned in subsection (2)(a) of section 52, the functions of the regulator mentioned in subsection (2)(b) of that section or both sets of functions;

• (b) the reasons why the Secretary of State considers it appropriate to make the order.

• (6) The reference to the Competition and Markets Authority in subsection (2) is to be read, in relation to any time before the commencement of section 25(3), as a reference to the Office of Fair Trading.

• (7) In this section, “sectoral regulator order” has the same meaning as in section 52.

Miscellaneous

Recovery of CMA’s costs in respect of price control references

54

After section 193 of the Communications Act 2003 (reference of price control matters) insert—

(193A) (1) Where a determination is made on a price control matter referred by virtue of section 193, the CMA may make an order in respect of the costs incurred by it in connection with the reference (a “costs order”). (2) A costs order may require the payment to the CMA of some or all of those costs by such parties to the appeal which gave rise to the reference, other than OFCOM, as the CMA considers appropriate. (3) A costs order must— (a) set out the total costs incurred by the CMA in connection with the reference, and (b) specify the proportion of those costs to be paid by each party to the appeal in respect of whom the order is made. (4) In deciding on the proportion of costs to be paid by a party to the appeal the CMA must, in particular, consider— (a) the extent to which the determination on the reference upholds OFCOM's decision in relation to the price control matter in question, (b) the extent to which the costs were attributable to the involvement in the appeal of the party, and (c) the conduct of the party. (5) A costs order— (a) must be made as soon as reasonably practicable after the making of the determination on the reference, but (b) does not take effect unless the Tribunal, in deciding the appeal which gave rise to the reference, decides the price control matter which is the subject of the reference in accordance with the determination of the CMA (see section 193(6)). (6) In a case where the Tribunal decides the price control matter in question otherwise than as mentioned in subsection (5)(b), the CMA may make an order under this subsection in respect of the costs incurred by it in connection with the reference. (7) Subsections (2) to (4) apply in relation to an order under subsection (6) as they apply in relation to an order under subsection (1); but for that purpose the reference in subsection (4)(a) to the determination on the reference is to be read as a reference to the decision of the Tribunal mentioned in subsection (6). (8) An order under subsection (6) must be made as soon as reasonably practicable after the decision of the Tribunal mentioned in that subsection. (9) An amount payable to the CMA by virtue of an order made under this section is recoverable summarily as a civil debt (but this does not affect any other method of recovery). (10) The CMA must pay any sums it receives by virtue of this section into the Consolidated Fund. (11) The functions of the CMA under this section, other than those under subsections (9) and (10), are to be carried out on behalf of the CMA by the group constituted by the chair of the CMA in relation to the reference in question.

Disclosure etc. of information: offences

55

In section 241 of the 2002 Act (disclosure of information for the purpose of exercise of statutory functions), after subsection (2) insert—

(2A) Information disclosed under subsection (1) so that it is not made available to the public must not be used by the person to whom it is disclosed for any purpose other than that mentioned in subsection (1).

Review of certain provisions of Chapters 1 and 2

56

• (1) The Secretary of State must, before the end of each review period—

• (a) carry out a review of the provisions of this Part mentioned in subsection (2), and

• (b) prepare and publish a report setting out the conclusions of the review.

• (2) The provisions of this Part are—

• (a) sections 29 and 36 and Schedule 11 (investigation powers: mergers and markets),

• (b) section 30 and Schedule 7 (interim measures and pre-emptive action: mergers), and

• (c) sections 32 and 38 and Schedules 8 and 12 (time-limits etc: mergers and markets).

• (3) The report must in particular—

• (a) set out the objectives intended to be achieved by the provisions,

• (b) assess the extent to which those objectives have been achieved, and

• (c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved in another way which imposed less regulation.

• (4) The Secretary of State must lay the report before Parliament.

• (5) Each of the following is a review period for the purposes of this section—

• (a) the period of 5 years beginning with the first day on which any of the provisions mentioned in subsection (2) comes into force (whether wholly or partly), and

• (b) each successive period of 5 years.

Minor and consequential amendments

57

Schedule 15 (which makes minor and consequential amendments related to this Part) has effect.

Interpretation

58

In this Part—

• “the 1998 Act” means the Competition Act 1998;

• “the 2002 Act” means the Enterprise Act 2002.

PART 5 — Reduction of legislative burdens

Sunset and review

Sunset and review provisions

59

• (1) The Interpretation Act 1978 is amended as follows.

• (2) After section 14 (implied power to amend) insert—

(14A) (1) This section applies where an Act confers a power or a duty on a person to make subordinate legislation except to the extent that— (a) the power or duty is exercisable by the Scottish Ministers, or (b) the power or duty is exercisable by any other person within devolved competence (within the meaning of the Scotland Act 1998). (2) The subordinate legislation may include— (a) provision requiring the person to review the effectiveness of the legislation within a specified period or at the end of a specified period; (b) provision for the legislation to cease to have effect at the end of a specified day or a specified period; (c) if the power or duty is being exercised to amend other subordinate legislation, provision of the kind mentioned in paragraph (a) or (b) in relation to that other legislation. (3) The provision that may be made by virtue of subsection (2)(a) includes provision requiring the person to consider whether the objectives which it was the purpose of the legislation to achieve remain appropriate and, if so, whether they could be achieved in another way. (4) Subordinate legislation including provision of a kind mentioned in subsection (2) may make such provision generally or only in relation to specified provisions of the legislation or specified cases or circumstances. (5) Subordinate legislation including provision of a kind mentioned in subsection (2) may make transitional, consequential, incidental or supplementary provision or savings in connection with such provision. (6) In this section, “specified” means specified in the subordinate legislation.

• (3) In paragraph 1 of Schedule 2, after the entry for section 11 insert— “ Section 14A ”.

Heritage planning etc

Listed buildings in England: agreements and orders granting listed building consent

60

• (1) The Planning (Listed Buildings and Conservation Areas) Act 1990 is amended as follows.

• (2) In Chapter 2 of Part 1, after section 26 insert—

(26A) (1) A relevant local planning authority may make an agreement under this section (a “heritage partnership agreement”) with any owner of a listed building, or a part of such a building, situated in England. (2) Any of the following may also be a party to a heritage partnership agreement in addition to an owner and the relevant local planning authority— (a) any other relevant local planning authority; (b) the Secretary of State; (c) the Commission; (d) any person who has an interest in the listed building; (e) any occupier of the listed building; (f) any person involved in the management of the listed building; (g) any other person who appears to the relevant local planning authority appropriate as having special knowledge of, or interest in, the listed building, or in buildings of architectural or historic interest more generally. (3) A heritage partnership agreement may contain provision— (a) granting listed building consent under section 8(1) in respect of specified works for the alteration or extension of the listed building to which the agreement relates, and (b) specifying any conditions to which the consent is subject. (4) The conditions to which listed building consent may be subject under subsection (3)(b) in respect of specified works are those that could be attached to listed building consent in respect of the works if consent were to be granted under section 16. (5) If a heritage partnership agreement contains provision under subsection (3), nothing in sections 10 to 26 and 28 applies in relation to listed building consent for the specified works, subject to any regulations under section 26B(2)(f). (6) A heritage partnership agreement may also— (a) specify or describe works that would or would not, in the view of the parties to the agreement, affect the character of the listed building as a building of special architectural or historic interest; (b) make provision about the maintenance and preservation of the listed building; (c) make provision about the carrying out of specified work, or the doing of any specified thing, in relation to the listed building; (d) provide for public access to the listed building and the provision to the public of associated facilities, information or services; (e) restrict access to, or use of, the listed building; (f) prohibit the doing of any specified thing in relation to the listed building; (g) provide for a relevant public authority to make payments of specified amounts and on specified terms— (i) for, or towards, the costs of any works provided for under the agreement; or (ii) in consideration of any restriction, prohibition or obligation accepted by any other party to the agreement. (7) For the purposes of subsection (6)(g), each of the following, if a party to the agreement, is a relevant public authority— (a) the Secretary of State; (b) the Commission; (c) a relevant local planning authority. (8) In this section “specified” means specified or described in the heritage partnership agreement. (9) In this section and section 26B— - “owner”, in relation to a listed building or a part of such a building, means a person who is for the time being — 1. the estate owner in respect of the fee simple in the building or part; or 2. entitled to a tenancy of the building or part granted or extended for a term of years certain of which not less than seven years remain unexpired; - “relevant local planning authority”, in relation to a listed building, means a local planning authority in whose area the building or any part of the building is situated. (26B) (1) A heritage partnership agreement— (a) must be in writing; (b) must make provision for the parties to review its terms at intervals specified in the agreement; (c) must make provision for its termination and variation; (d) may relate to more than one listed building or part, provided that in each case a relevant local planning authority and an owner are parties to the agreement; and (e) may contain incidental and consequential provisions. (2) The Secretary of State may by regulations make provision— (a) about any consultation that must take place before heritage partnership agreements are made or varied; (b) about the publicity that must be given to heritage partnership agreements before or after they are made or varied; (c) specifying terms that must be included in heritage partnership agreements; (d) enabling the Secretary of State or any other person specified in the regulations to terminate by order a heritage partnership agreement or any provision of such an agreement; (e) about the provision that may be included in an order made under regulations under paragraph (d), including provision enabling such orders to contain supplementary, incidental, transitory, transitional or saving provision; (f) applying or reproducing, with or without modifications, any provision of sections 10 to 26 and 28 for the purposes of heritage partnership agreements; (g) providing for any of the following, as they apply for the purposes of provisions mentioned in paragraph (f), to apply with any modifications consequential on provision made under that paragraph— (i) sections 30 to 37; (ii) sections 62 and 63; (iii) Parts 3 and 4; (iv) Schedule 3. (3) Regulations made under subsection (2)(a) may, in particular, include provision as to— (a) the circumstances in which consultation must take place; (b) the types of listed building in respect of which consultation must take place; (c) who must carry out the consultation; (d) who must be consulted (including provision enabling the Commission to direct who is to be consulted in particular cases); and (e) how the consultation must be carried out. (4) Listed building consent granted by a heritage partnership agreement (except so far as the agreement or regulations under subsection (2) otherwise provide) enures for the benefit of the building and of all persons for the time being interested in it. (5) Subject to subsection (4), a heritage partnership agreement cannot impose any obligation or liability, or confer any right, on a person who is not party to the agreement. (6) Section 84 of the Law of Property Act 1925 (power to discharge or modify restrictive covenant) does not apply to a heritage partnership agreement.

• (3) After section 26B insert—

(26C) (1) The Secretary of State may by order (a “listed building consent order”) grant listed building consent under section 8(1) in respect of works of any description for the alteration or extension of listed buildings of any description in England. (2) The consent may be granted subject to conditions specified in the order. (3) Without prejudice to the generality of subsection (2), the conditions that may be specified include any conditions subject to which listed building consent may be granted under section 16. (4) A listed building consent order may (without prejudice to section 17(2)) give the local planning authority power to require details of works to be approved by them, and may grant consent subject to conditions with respect to— (a) the making of an application to the authority for a determination as to whether such approval is required, and (b) the outcome of such an application or the way it is dealt with. (5) A listed building consent order may enable the Secretary of State or the local planning authority to direct that consent granted by the order does not apply— (a) to a listed building specified in the direction; (b) to listed buildings of a description specified in the direction; (c) to listed buildings in an area specified in the direction. (6) An order may in particular make provision about the making, coming into force, variation and revocation of such a direction, including provision conferring powers on the Secretary of State in relation to directions by a local planning authority. (7) Nothing in sections 10 to 26 applies in relation to listed building consent granted by a listed building consent order; but that does not affect the application of sections 20, 21 and 22 in relation to an application for approval required by a condition to which consent is subject. (26D) (1) A local planning authority for any area in England may by order (a “local listed building consent order”) grant listed building consent under section 8(1) in respect of works of any description for the alteration or extension of listed buildings. (2) Regulations under this Act may provide that subsection (1) does not apply to listed buildings of any description or in any area. (3) The consent granted by a local listed building consent order may relate— (a) to all listed buildings in the area of the authority or any part of that area; (b) to listed buildings of any description in that area or any part of that area. (4) The consent may be granted subject to conditions specified in the order. (5) Without prejudice to the generality of subsection (4), the conditions that may be specified include any subject to which listed building consent may be granted under section 16. (6) A local listed building consent order may enable the local planning authority to direct that the consent granted by the order in respect of works of any description does not apply— (a) to a listed building specified in the direction; (b) to listed buildings of a description specified in the direction; (c) to listed buildings in an area specified in the direction. (7) An order may in particular make provision about the making, coming into force, variation and revocation of such a direction, including provision conferring powers on the Secretary of State. (8) Nothing in sections 10 to 26 applies in relation to listed building consent granted by a local listed building consent order; but that does not affect the application of sections 20, 21 and 22 in relation to an application for approval required by a condition to which consent is subject. (9) Schedule 2A makes provision in connection with local listed building consent orders. (26E) (1) At any time before a local listed building consent order is adopted by a local planning authority the Secretary of State may direct that the order (or any part of it) is not to be adopted without the Secretary of State's approval. (2) If the Secretary of State gives a direction under subsection (1)— (a) the authority must not take any step in connection with the adoption of the order until they have submitted the order or the part to the Secretary of State and the Secretary of State has decided whether to approve it; (b) the order has no effect unless it (or the part) has been approved by the Secretary of State. (3) In considering an order or part submitted under subsection (2)(a) the Secretary of State may take account of any matter the Secretary of State thinks relevant. (4) It is immaterial whether any such matter was taken account of by the local planning authority. (5) The Secretary of State— (a) may approve or reject an order or part of an order submitted under subsection (2)(a); (b) must give reasons for that decision. (6) The Secretary of State— (a) may at any time before a local listed building consent order is adopted by the local planning authority, direct them to modify it in accordance with the direction; (b) must give reasons for any such direction. (7) The local planning authority— (a) must comply with a direction under subsection (6); (b) must not adopt the order unless the Secretary of State gives notice of being satisfied that they have complied with the direction. (8) The Secretary of State— (a) may at any time by order revoke a local listed building consent order if of the opinion that it is expedient to do so; (b) must give reasons for doing so. (9) The Secretary of State— (a) must not make an order under subsection (8) without consulting the local planning authority; (b) if proposing to make such an order, must serve notice on the local planning authority. (10) A notice under subsection (9)(b) must specify the period (which must not be less than 28 days from the date of its service) within which the authority may require an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose. (11) The Secretary of State must give the authority such an opportunity if they require it within the period specified in the notice. (26F) (1) In considering whether to make a listed building consent order or local listed building consent order the Secretary of State or local planning authority must have special regard to the desirability of preserving— (a) listed buildings of a description to which the order applies, (b) their setting, or (c) any features of special architectural or historic interest which they possess. (2) Before making a listed building consent order the Secretary of State must consult the Commission. (26G) (1) A listed building consent order or local listed building consent order may include provision permitting the completion of works if— (a) listed building consent is granted by the order in respect of the works, and (b) the listed building consent is withdrawn after the works are started but before they are completed. (2) Listed building consent granted by an order is withdrawn— (a) if the order is revoked; (b) if the order is varied or (in the case of a local listed building consent order) revised so that it ceases to grant listed building consent in respect of the works or materially changes any condition or limitation to which the grant of listed building consent is subject; (c) if a direction applying to the listed building is issued under powers conferred under section 26C(5) or 26D(6).

• (4) After section 28 insert—

(28A) (1) Section 28 also has effect (subject to subsections (2) and (3)) where— (a) listed building consent granted by a listed building consent order or a local listed building consent order is withdrawn (whether by the revocation or amendment of the order or by the issue of a direction), and (b) on an application for listed building consent made within the prescribed period after the withdrawal, consent for works formerly authorised by the order is refused or is granted subject to conditions other than those imposed by the order. (2) Section 28 does not have effect by virtue of subsection (1) if— (a) the works authorised by the order were started before the withdrawal, and (b) the order included provision in pursuance of section 26G permitting the works to be completed after the withdrawal. (3) Section 28 does not have effect by virtue of subsection (1) if— (a) notice of the withdrawal was published in the prescribed manner and within the prescribed period before the withdrawal, and (b) the works authorised by the order were not started before the notice was published. (4) Where section 28 has effect by virtue of subsection (1), references in section 28(2) and (3) to the revocation or modification of listed building consent are references to the withdrawal of the listed building consent by revocation or amendment of the order or by issue of the direction.

• (5) Schedule 16 (which inserts Schedule 2A to the Planning (Listed Buildings and Conservation Areas) Act 1990) has effect.

Listed buildings in England: certificates of lawfulness

61

In the Planning (Listed Buildings and Conservation Areas) Act 1990 after section 26G insert—