Enterprise Bill (Hansard, 21 October 2002)

HL Deb 21 October 2002 vol 639 cc1160-210 1160

§ 8.40 p.m.

§ Consideration of amendments on Report resumed.

§ Clause 254 [Income payments order]:

§ Lord Hunt of Wirral moved Amendment No. 275:

§ Page 183, line 12, leave out from "effect" to end of line 18 and insert "which period may end after the discharge of the bankrupt"

§ The noble Lord said: My Lords, during the advantage of the dinner break business, I chose to forgo the pleasures of dinner and retired to the Library to consider what the noble Lord, Lord McIntosh of Haringey, had said about personal bankruptcies. In dealing with a previous amendment he said that one 1161 had to take into account not only employment and level of debt but also a range of other factors when considering the impact of this legislation.

§ I looked up what was referred to as "the level of debt". I find myself with some serious concerns about the way that debt is accumulating in the United Kingdom. I discovered that, thanks to the Bank of England, data have now been produced to show that British households are on course for record-breaking debts of £800 billion, making them the most indebted in Europe. It may well be that lower interest rates have caused an increase in borrowing and, on average, those with mortgages now have total loans of nearly £63,000 each. I am much more concerned that on average individuals have £1,500 outstanding on credit and store cards and £3,000 on other loans.

§ I found a quotation in the Daily Telegraph of 5th October by Cesar Molinas, an economist at Merrill Lynch. He said: This borrowing is a peculiar feature of the modern British economy and I suppose America too. British households are by far the most indebted in Euorope".

§ The Minister will recall when we debated these issues previously that I said that one concern is that millions of people are now running up unsustainable debts.

§ In the Telegraph there was also a quotation from Miranda Haines of the Citizens' Advice Bureau about debt. She stated: It is growing all the time. We have seen a million new cases of people with debt problems in the last year, and that is up by half on five years ago".

§ That is the background behind the concerns which have been expressed on all sides of the House about the bankruptcy provisions. Income payments orders are intended to ensure that bankrupts make an affordable contribution towards their debt from their income for up to three years. I believe—and many others share this belief—that there should be no limit on the length of time for which an income payments order or agreement may last. Surely, the court, or the trustee with the agreement of the bankrupt is best placed to consider, on a case-by-case basis, the appropriate period, whether lesser or greater than three years. I should have thought that that was particularly pertinent to cases in which a debtor is considered culpable for the bankruptcy and has sufficient ongoing income to make a more significant contribution to the bankruptcy fund.

§ Equally, the amendments provide that the courts should also be empowered to link income payments with culpability when considering an application for a bankruptcy restrictions order.

§ The Minister said that he would not accept the previous amendments that we tabled. I agreed to consider the position further in the light of the comments that he made. I hope that he might now accept these amendments which would go some way to ensuring that income payments orders are made more effective. I beg to move.

1162

§ 8.45 p.m.

§ Lord Hodgson of Astley Abbotts
My Lords, I intervene briefly in support of my noble friend. One must be very careful in seeking the balance. The Minister has referred to the balance. I accept the stricture that we must find the right balance. Bankrupts can recover, post-discharge, quite quickly. If they are able, post-discharge, to gain a great deal of assets—build up their assets—there is no reason why creditors should not obtain some redress from that. It is their misfortune that has provided the platform on which the bankrupt has started again.
Therefore, when my noble friend raises these points about income payment orders and the timescale, it is important that there should be, preferably, no limit, but certainly not a three-year limit. So that for those who are able, like a Phoenix out of the ashes, to rise and do well, there should be an opportunity for those disadvantaged creditors of the first bankruptcy to recover some of their losses. Therefore, I very much support the point that my noble friend has been making.

§ Lord McIntosh of Haringey
My Lords, I was very interested to learn of the dinner-time researches of the noble Lord, Lord Hunt. While I was in the Chamber, he was clearly gainfully occupied. However, I have one or two figures to give to him on the subject. The figures come from the Centre for Economic and Business Research. Indeed, they are quoted in the research report which he cited in support of Amendment No. 266.
The research carried out by the Centre for Economic and Business Research highlights the large differential in levels of borrowing in the United States and the United Kingdom. There are a number of statistics that show that consumers are coping well with debt levels in the United Kingdom. Work carried out by the CEBR on behalf of the Internet bank Egg, which was referred to in their research, shows that the debt to wealth ratio of average households has decreased from 17.8 per cent in 1992 to 14.9 per cent now. Furthermore, interest payments as a share of income are now 6.8 per cent as opposed to 11.1 per cent at their peak, average household income has almost doubled since 1988 and now the average household assets total £220,000 compared to average debts of £32,000.
According to the Halifax, in March 1990, 41 per cent of a first time buyer's gross earnings went on mortgage payments. The figure is now 15 per cent.
The Credit Card Research Group, whose work we also looked at in preparing a response to the Centre for Economic and Business Research, in April 2002 said: Debt in the UK appears to be sustainable in the short term. Banks have been careful to avoid repeating the mistakes of the late 1980s and consumers are now much more savvy in seeking out the best deals. These factors have combined with a favourable economic climate to ensure that debt levels have, at the broadest level, remained manageable". In September 2002 it said that, the growing dominance of debit cards suggests that cardholders are still, in the main, behaving sensibly and borrowing only what they can afford to repay". 1163 Nothing is permanent and all kinds of things can happen to the economy. But the conclusion I draw from the research on which the noble Lord, Lord Hunt, places such reliance is the opposite to that which he has drawn.

§ Lord Hunt of Wirral
My Lords, I am most grateful to the Minister for his response. My intention was not to demonstrate that the situation was worse than the research to which he referred states, but to state that the level of debt must cause us concern when we are undergoing such fundamental changes in the law of bankruptcy. I repeat again what citizens advice bureaux state, which I have not heard him challenge: We have seen a million new cases of people with debt problems in the last year, and that is up by half on five years ago". Citizens advice bureaux are a reliable source. I simply attempt to highlight problems that may well arise in future if we proceed down the route advocated by the Minister.

§ Lord McIntosh of Haringey
My Lords, I have huge respect for citizens advice bureaux, but they do not undertake research, they analyse the problems of those who come to them—it is good that they do.
Amendments Nos. 275 to 277 are similar to amendments tabled by the Opposition both in Committee here and in the other place. They would provide that an income payments order or agreement were subject to no maximum time limit. It is right that those bankrupts who are able to make contributions from their income towards their debts should be required to do so under the new proposals—as they are under the existing regime. We all agree on that.
Indeed, the introduction of the out-of-court route—that is, income payments agreements—will make that easier to achieve and will lead to increased returns to creditors. However, the three-year maximum recognises that there is a balance to be struck—I can always be teased on that, but it is still true—between the benefits that that will bring to the bankrupt's creditors and the rehabilitation of the individual concerned. To remove the maximum period for income payments orders and agreements would impose a much more stringent regime than is now the case. That would be both unfair and inconsistent with the aim of the proposals.
The proposals in Clauses 254 and 255 provide further comfort to creditors by allowing for the variation of the income payments order or agreement, whether before or after discharge. That will enable any increase in the bankrupt's surplus income, to which the noble Lord, Lord Hodgson of Astley Abbots, referred, after the income payments order or agreement has been entered into to be taken into account.
Amendment No. 278, however, stands in the name of both the Opposition and the Government. It is always a pleasure to see that. It is identical to an amendment tabled in Committee by the noble Lord, Lord Hodgson—for which I pay tribute to him. It ensures that any agreement for variation of an income 1164 payments agreement will be in writing. It has considerable merit because, if such a variation were agreed verbally, it might be open to later dispute. So the amendment appears before us standing in all our names and I thank the noble Lord for highlighting the matter. However, I must oppose Amendments Nos. 275 to 277.

§ Lord Hodgson of Astley Abbotts
My Lords, I thank the Minister for accepting Amendment No. 278, which was tabled in an attempt to avoid future problems.

§ Lord Hunt of Wirral
My Lords, perhaps I may join my noble friend in thanking the Minister and say that the Government's habit of adding their name to our amendments is one that we seek to encourage. Indeed, much of today's debate could have been avoided if they had only adopted that practice more widely. However, in the meantime, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendments Nos. 276 and 277 not moved.]

§ The Deputy Speaker (Lord Ampthill)
My Lords, we come to Amendment No. 278, which is certainly a duet, possibly a trio and may even be a quartet. Who cares to move it?

§ Lord Hunt of Wirral moved Amendment No. 278:

§ Page 184, line 8, after "by" insert "written"

§ The noble Lord said: My Lords, let us all move it. I beg to move.

§ On Question, amendment agreed to.

§ [Amendment No. 279 had been withdrawn from the Marshalled List.]

§ Lord McIntosh of Haringey moved Amendment No. 280:

§ Page 184, line 24, leave out "bankrupt's sole or principal residence" and insert "sole or principal residence of—

(a) the bankrupt,
(b) the bankrupt's spouse, or
(c) a former spouse of the bankrupt."

§ The noble Lord said: In moving the amendment, I shall speak also to Amendments Nos. 281 to 285. We are close to adding our name to opposition amendments, because our amendments are similar to amendments proposed in Committee—Amendments Nos. 373 to 378. The noble Lords, Lord Freeman and Lord Kingsland, spoke about what the noble Lord, Lord Freeman, called the "deserted wife's charter". My noble friend Lord Sainsbury undertook further to consider the matter, has done so and has tabled Amendments Nos. 280, 283 and 284.

§ Amendment No. 280 extends the provisions of new Section 283A to ensure that any interest that the bankrupt has in the dwelling house of the spouse or former spouse must be dealt with within three years, otherwise the interest re-vests in the bankrupt. Without the amendment, the position would remain as it is, allowing the trustee to realise the bankrupt's 1165 interest in a dwelling house occupied by his spouse or former spouse at any time—possibly many years after the date of the bankruptcy.

§ Amendment No. 284 extends the transitional provision in Clause 256(8) to the bankrupt's interest in the dwelling house of a spouse or former spouse that is their sole or principal residence, so that at the end of three years from the date on which new Section 283A comes into force, if such an interest has not been dealt with by the trustee or otherwise within that three years, such an interest re-vests in the bankrupt.

§ Amendment No. 283 extends the provisions of new Section 313A, so that the bankrupt's interest in such a dwelling house is re-vested if the trustee applies for an order for sale or possession or a charging order, where the value of the interest is below the prescribed amount.

§ Government Amendment No. 285 is similar to a previous amendment, Amendment No. 286—it gets confusing when amendment numbers, clause numbers and previous amendment numbers overlap; with the exception of the noble Lord, the Deputy Speaker, we will all get into terrible trouble—tabled in Committee. In Committee, that amendment was withdrawn because we wanted to consider the matter further and table our amendment, which we have done. Amendment No. 285 replaces the Bill's current provision for new Section 283A(10) and instead provides that subsections (4) to (9) of Section 283A apply to bankruptcy cases in existence prior to the coming into force of that section where the bankrupt has an interest in a dwelling house that is the sole or principal residence of himself, his spouse or former spouse.

§ Therefore, where an application by the trustee to deal with such an interest in one such case is dismissed, the interest will re-vest in the bankrupt. If the bankrupt does not reveal an interest in one case, the three-year time limit will not commence until he does so. The provisions relating to the rules also apply.

§ Government Amendments Nos. 281 and 282 reflect the policy intention behind the family home provisions in the Bill to ensure that the bankrupt's interest in the family home is dealt with within three years of the bankruptcy and in an equitable way. One way in which that interest can be dealt with is through Section 313 of the Insolvency Act 1986, which allows the trustee to create a charge against the bankrupt's home. The intention behind the amendments to Section 313 is to freeze the value of the bankrupt's interest—except for interest—so that the trustee is not tempted automatically to use a charging order to avoid having to deal with any property and to give the bankrupt some recognition if he has paid his mortgage and sells his home in future.

§ Section 313 interacts with Section 3(5) of the Charging Orders Act 1979, which allows for the charging order to be varied. That provision might be used to vary the value of the interest specified in the charging order, which would defeat the policy intention of freezing the value of the bankrupt's interest in the family home. To ensure that that policy 1166 intention is fulfilled, the amendments make it clear that Section 3(5) of the Charging Orders Act 1979 may not be used to vary a charge against a bankrupt's home. I beg to move.

§ Lord Kingsland
My Lords, as the evening wears on, a harmonious relationship is beginning to emerge between the Government and the Opposition—which I applaud. I think that I am right in saying that all of the amendments that the Government have adopted, to a greater or lesser extent, reflect amendments that we tabled in Committee.
The Minister is correct to say, in relation to Amendment No. 286, that in Committee I raised the point about the bankrupt's failure to inform the trustee or official receiver of his interest in a property. The noble Lord, Lord Sainsbury, said that the amendment clearly had some merit, that he was pleased that it had been tabled and that he would go away to think about it. Encouraged by that, I tabled an improved version but, if I understand the Minister's interpretation of his amendment correctly, mine is now surplus to requirements.
In those circumstances, I repeat my thanks and shall sit down.

§ On Question, amendment agreed to.

§ 9 p.m.

§ Lord McIntosh of Haringey moved Amendments Nos. 281 to 285:

§ Page 185, line 39, leave out "and"

§ Page 186, line 3, at end insert ", and (c) at the end insert— (5) But an order under section 3(5) of that Act may not vary a charged value."

§ Page 186, line 9, leave out "bankrupt's sole or principal residence," and insert "sole or principal residence of—

(i) the bankrupt,
(ii) the bankrupt's spouse, or
(iii) a former spouse of the bankrupt,"

§ Page 186, line 36, leave out "his sole or principal residence," and insert "the sole or principal residence of him, his spouse or a former spouse of his,"

§ Page 187, line 1, leave out subsection (10) and insert— (10) Subsections 283A(4) to (9) of that Act shall have effect, with any necessary modifications, in relation to the provision made by subsections (7) to (9) above; in particular—

(a) a reference to the period mentioned in section 283A(2) shall be construed as a reference to the transitional period,
(b) in the application of section 283A(5) a reference to the date of the bankruptcy shall be construed as a reference to the date on which subsection (1) above comes into force, and
(c) a reference to the rules is a reference to rules made under section 412 of the Insolvency Act 1986 (c. 45) (for which purpose this section shall be treated as forming part of Parts VIII to XI of that Act)."

§ On Question, amendments agreed to.

§ [Amendment No. 286 not moved.]

§ Clause 263 [Disqualification from office: general]:

§ Lord McIntosh of Haringey moved Amendment No. 287:

1167

§ Page 189, line 26, at end insert— ( ) In subsection (2) the reference to a provision which disqualifies a person conditionally includes a reference to a provision which enables him to be dismissed.

§ The noble Lord said: My Lords, Amendment No. 287 is a clarifying amendment and sets out that a "disqualification provision" provided for in Clause 263(2) includes a reference to a provision which enables a person to be dismissed from office on being made bankrupt. It was thought that it was not sufficiently clear that dismissal currently falls within subsection (2) as drafted.

§ It gives the power to amend any legislation which provides for dismissal on a person becoming bankrupt. For example, it would enable such a provision to be amended so that dismissal could result from the making of a bankruptcy restrictions order rather than simply the making of a bankruptcy order. I beg to move.

§ On Question, amendment agreed to.

§ Lord Hodgson of Astley Abbotts moved Amendment No. 288: After Clause 267, insert the following new clause— Subordinate Legislation (Part XV, Insolvency Act 1986)

(1) In section 412(3) of the Insolvency Act 1986, leave out "subject to annulment in pursuance of a resolution of either" and insert "a draft of which must have been laid before and approved by resolution of each".
(2) In section 418(3) of the Insolvency Act 1986, leave out "subject to annulment in pursuance of a resolution of either" and insert "a draft of which must have been laid before and approved by resolution of each"."

§ The noble Lord said: My Lords, as many noble Lords have remarked as the Bill has passed through the House, this is a monster bill. Equally, it is only a skeleton so far—there is much flesh to be put on the bones by means of statutory instruments. Details of those will be critical to the working of the Bill, or the Act, because conflicting claims and interests have to be balanced. We have seen that earlier today and on previous occasions.

§ As I understand it, Clauses 251 to 256 and Schedules 19, 20 and 21 of the Enterprise Bill amend Part IX of the Insolvency Act 1986. Delegated legislation under Part IX of that Act is subject to the negative resolution procedure according to Part XV of the 1986 Act. Given that maintenance of proper standards of personal and corporate financial behaviour is an essential part of maintaining confidence in the free market economy, the rules must be given the maximum possible ventilation so that they are discussed and dealt with as appropriate.

§ Therefore, I do not believe that it is right they should be subject only to the negative procedure. Given the importance of the rules, that is not appropriate, as evidenced by a number of our debates today. The amendment seeks to insert a clause to reverse that and requires the rules to be dealt with by the affirmative procedure. I beg to move.

§ Lord McIntosh of Haringey
My Lords, I agree that it is of great importance that we should maintain 1168 proper standards. If that were the subject matter of this part of the Bill, I would strongly support the noble Lord, Lord Hodgson. I am afraid that I have to tell him it is not.
The first power in Section 412 of the Insolvency Act 1986 allows the Lord Chancellor, in agreement with the Secretary of State, to make rules giving effect to the bankruptcy provisions contained in that Act. Those words, "giving effect to" are important in terms of restricting how the power can be used. They mean that the power can be used only to put flesh on the bones of the primary legislation, not to alter it.
For instance, the Act may say that a meeting of creditors should be called and what its purpose is. The power then allows rules to be made setting out where it should be held, who should be the chairman, who could come and vote, and so on. That is what a negative resolution procedure is about.
That does not mean that the Government can bring forward rules without giving careful thought to their content. Under Section 413 of the Insolvency Act 1986, the Lord Chancellor must consult the Insolvency Rules Committee before making any rules. That is a knowledgeable committee, chaired by a High Court judge—Mr Justice Evans-Lombe—and made up of individuals with a considerable understanding of insolvency law and practice. One of the committee's key functions is to ensure that rules work properly in practice. It has been in place since 1976 and has the confidence of all parties involved in insolvency. In light of the scrutiny of the rules by the Select Committee, it is the Government's view that it is not necessary to change the current arrangements for parliamentary consideration of the rules.
Section 418 allows the Secretary of State to set certain monetary values in the Act. For example, the financial parameters for deciding what is a small bankruptcy for the purpose of Section 273. That power provides an important flexibility allowing for the increase or decrease of monetary sums in the Act to take account of changing factors in future years, which indicate that the existing financial limits are no longer set at the appropriate level. Those are matters that require debate only if there are concerns that the Secretary of State has got it wrong. Section 418 provides for such circumstances because any order setting monetary limits under the section is subject to the negative resolution procedure.
Neither of the powers referred to in the amendment allow the Lord Chancellor or the Secretary of State to replace, add to, or detract from the primary legislative provisions of that Act. Both are entirely normal procedures—not what is often called a Henry VIII power. If matters such as this had to come before Parliament on a regular basis, it would severely affect our ability to get things done. I urge the noble Lord, Lord Hodgson, not to press this amendment.

§ Lord Hodgson of Astley Abbotts
My Lords, I am getting into deep legal water. I am grateful to the Minister for his assurances of the importance of preserving the appropriate fabric and that those 1169 powers cannot be unduly altered. Following his assurances concerning the consultation that has taken place and the assurances that the Government have been given, I am happy to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Schedule 24 [Transitional and transitory provisions and savings]:

§ Lord McIntosh of Haringey moved Amendment No. 289:

§ Page 326, line 23, at end insert— (2) The Secretary of State may treat any consultation carried out with the President of the Competition Commission Appeal Tribunals (before the appointment of the President of the Competition Appeal Tribunal) as being as effective for the purposes of section 15(1) as if it had been carried out with the President of the Competition Appeal Tribunal.

§ The noble Lord said: My Lords, this is a large set of government amendments to the transitional, consequential and repeal schedules. Perhaps I may deal first with sectoral enactment. The vast majority are consequential amendments to various sectoral enactments—the electricity Acts, the gas Acts, the airports Acts and so on. These enactments incorporate a mechanism whereby licence modifications proposed by the relevant regulator, but disputed by the licensee, can be referred to the Competition Commission. References currently rely on procedural provisions in the Fair Trading Act and the Competition Act 1998 which are being modified by the Enterprise Bill. The relevant provisions include time limits for reference inquiries, the voting rules for reporting panels, and the information-gathering powers available to the commission. A consequence of the Enterprise Bill is that these procedures have to be inserted into the various sectoral enactments as stand-alone provisions.

§ The necessary amendments to the Telecommunications and Broadcasting Acts were made at an earlier stage in the passage of the Bill. My noble friend Lord Sainsbury said in Committee that they provided a template for consequential amendments that will be required to the other utilities Acts that are similarly affected. They have been well flagged and they should not cause the House any difficulty.

§ There are a handful of other amendments in the group. Amendments Nos. 303 and 304 will have the effect of including a reference to the Office of Fair Trading as one of the bodies which has power to take remedial action under one or more of the sections of the Enterprise Act which are to be specified in Section 144 of the Copyright, Designs and Patents Act 1988 by virtue of paragraph 18 of Schedule 25. This corrects a technical omission.

§ Amendment No. 305 will amend Section 238 of the Copyright, Designs and Patents Act 1988. It will make identical provision to that made by paragraph 18 of Schedule 25 with regard to copyright, but with regard to design rights.

§ Amendments Nos. 295 and 297 repeal provisions in the Consumer Credit Act 1974 and the Estate Agents Act 1979 which require local weights and measures 1170 authorities in England and Wales to give the Director-General of Fair Trading notice of their intention to start proceedings for an offence under those Acts and not to institute proceedings for 28 days or until the director has notified them of receipt of the notice. These provisions will be reinstated with modifications by including both Acts in the legislation to be listed in the order to be made under Clause 225.

§ Amendments Nos. 326 and 327 add the repeals referred to in Amendments Nos. 295 and 297 to Schedule 26. Amendment No. 289 is required to allow the Secretary of State to fulfil the consultation requirements imposed by Clause 15 prior to making the rules of the Competition Appeal Tribunal.

§ Amendments Nos. 292 and 293 are required to ensure that the records of the new competition service are treated as public records under the Public Records Act 1958. This brings the service into line with other competition authorities. I beg to move.

§ On Question, amendment agreed to.

§ Clause 272 [Power to make consequential amendments etc.]:

§ Lord Kingsland moved Amendment No. 289A:

§ Page 193, line 26, at end insert— excepting that no order made under this section may amend or alter or in any way affect Part 6

§ The noble Lord said: My Lords, telegraphically, the amendment refers to the, Power to make consequential amendments etc.", under the Bill. The power is granted under Clause 272. We seek to exclude Part 6 of the Bill from the scope of the clause. Part 6 deals with the cartel offence; that is the offence which has criminal consequences. We believe it inappropriate for a power such as that contained in Clause 272 to affect criminal provisions. I beg to move.

§ Lord Hodgson of Astley Abbotts
My Lords, I have an amendment in this group. It is another crack at the point I made previously, but from a slightly different angle. As my noble friend said, Clause 272 deals with power to make consequential amendments. Subsection (2)(b) provides that an order under the clause may, make incidental, supplementary, consequential, transitional, transitory or saving provision", as the Secretary of State may think appropriate under subsection (2)(1). I believe that they should therefore be subject to the affirmative procedure and the arguments I advanced in relation to Amendment No. 288 I advance again. However, I shall not weary the Minister by repeating them.

§ Lord McIntosh of Haringey
My Lords, the telegraphic reply would be that both provisions have been approved by the Delegated Powers and Regulatory Reform Committee. We rely on that, as the Commons say, with regard to an amendment coming from this House which affects privilege. However, I shall argue the case.
1171 The effect of Amendment No. 289 would make it impossible to use the consequential amendments power in Clause 272 to amend the cartel offences. If it were true that the power could be used to make substantive changes to Part 6, then I agree that there would be cause for concern. The power can be used only to supplement or make incidental or consequential provision and for the limited purposes given in subsection (1); namely, for the purposes of the Bill and in consequence of, or to give effect to its terms. The power would absolutely not permit the wholesale re-writing of substantive parts of the Bill.
Contrary to what the noble Lord, Lord Kingsland, has said, it would not be possible to make substantive changes to Part 6. It would not, for example, be possible to use the power to change the definition of the cartels offence; nor would it be possible to increase the penalties for the offence or to introduce any new investigative powers.
Amendment No. 290 would introduce an unnecessary degree of parliamentary oversight over the use of a power which is a standard feature of all pieces of legislation where, as here, there are close and complex interactions with other statutes. Clause 272 simply provides the flexiblity to make, by delegated legislation, any minor revisions to legislation that are required to ensure that the provisions of the Bill fit well with the provisions of other legislation. Examples of the type of amendments that may be made can be found in Schedule 25. In a Bill of this complexity, covering a number of policy areas, it is an entirely sensible provision.

§ 9.15 p.m.

§ Lord Hodgson of Astley Abbotts
My Lords, will the Minister give way? The Bill does not use the word "minor"; it says that, The Secretary of State may…make such…provisions…as he considers appropriate".

§ Lord McIntosh of Haringey
Yes, my Lords, but it is all constrained by the very severe limitations that exist in Clause 272. Of course, the Secretary of State has to think it appropriate or he would not be putting it forward, however minor it is.
The fundamental point is that this has been examined by the Delegated Powers and Regulatory Reform Committee and the committee considers the powers in the Bill to be appropriate. I oppose these amendments.

§ Lord Kingsland
My Lords, I thank the Minister for his response, which I find at least partially reassuring. In those circumstances, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendment No. 290 not moved.]

§ Schedule 25 [Minor and consequential amendments]:

§ Lord McIntosh of Haringey moved Amendments Nos. 291 to 325:

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§ Page 332, line 31, at end insert— (5A) References in this section to the Competition Commission shall, in cases where section 72(2) of the Enterprise Act 2002 applies, be read as references to the Office of Fair Trading.".

§ Page 334, line 12, after first "of insert "the Table at the end of paragraph 3 of"

§ Page 334, leave out line 15 and insert— (b) the following entries are inserted at the appropriate places— Competition Service"

§ Page 334, line 42, after "1984" insert "or section 44B of the Airports Act 1986"

§ Page 337, line 37, at end insert— ( ) subsection (2) (requirement to notify Director of intended prosecution) is omitted

§ Page 339, line 19, at end insert— (4A) References in this section to the Competition Commission shall, in cases where section 72(2) of the Enterprise Act 2002 applies, be read as references to the Office of Fair Trading.".

§ Page 341, line 4, at end insert— ( ) subsection (2) (requirement to notify Director of intended prosecution) is omitted

§ Page 342, line 43, leave out from "if to end of line 2 on page 343 and insert "—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted."

§ Page 349, line 15, leave out from "if to end of line 17 and insert"—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted."

§ Page 351, line 7, at end insert— (1A) In section 44 (supplementary provisions relating to references to Commission), subsections (3) and (3A) shall cease to have effect. (1B) After section 44 there is inserted—

§ "44A REFERENCES UNDER SECTION 43: TIME LIMITS

(1) Every reference under section 43 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Commission on a reference under section 43 shall not have effect (and no action shall be taken in relation to it under section 46) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the CAA under subsection (3).
(3) The CAA may, if it has received representations on the subject from the Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under subsection (3) in relation to the same reference.
(5) The CAA shall, in the case of an extension made by it under subsection (3)—

(a) publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by it under paragraph (a) to the airport operator concerned and the Secretary of State.

§ 44B REFERENCES UNDER SECTION 43: POWERS OF INVESTIGATION

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3), for the purposes of references under section 43 as they apply for the purposes of references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(2) Section 107 shall, in its application by virtue of subsection (1), have effect as if—

(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(3) Section 108(5)(b)(ii) shall, in its application by virtue of subsection (1), have effect as if—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.

(4) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 113 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1), have effect in relation to those sections as applied by virtue of that subsection.
(5) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection."

§ (1C) In section 45 (reports on references)— (a) after subsection (2) there is inserted— (2A) For the purposes of section 46(2), a conclusion contained in a report of the Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in 1174 connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998. (2B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 43 as the conclusions of the Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing."; (b) for subsection (4) there is substituted— (4) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Commission on a reference under section 43. (4A) In making any report on a reference under section 43 the Commission must have regard to the following considerations before disclosing any information. (4B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest. (4C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs, of an individual whose disclosure the Commission thinks might significantly harm the individual's interests.

(4D) The third consideration is the extent to which the disclosure of the information mentioned in subsection (4C)(a) or (b) is necessary for the purposes of the report.

§ Page 351, line 27, at end insert— (2A) In section 24 (licence modification references to Commission)—

(a) subsections (7) and (7A) shall cease to have effect;
(b) in subsection (8), after "sections" there is inserted "24A,".

(2B) After section 24 there is inserted—

§ "24A REFERENCES UNDER SECTION 24: TIME LIMITS

(1) Every reference under section 24 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Competition Commission on a reference under section 24 above shall not have effect (and no action shall be taken in relation to it under section 26 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Authority under subsection (3) below.
(3) The Authority may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under subsection (3) above in relation to the same reference.
(5) The Authority shall, in the case of an extension made by it under subsection (3) above—

(a) publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by it under paragraph (a) above to the holder of the licence or, as the case may be, the relevant licence holders.

§ 24B REFERENCES UNDER SECTION 24: POWERS OF INVESTIGATION

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 24 above as they apply for the purposes of references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(2) Section 107 shall, in its application by virtue of subsection (1) above, have effect as if—

(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(3) Section 108(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.

(4) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 113 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) above, have effect in relation to those sections as applied by virtue of that subsection.
(5) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection."

§ (2C) In section 25 (reports on licence modification references)— (a) after subsection (1) there is inserted— (1A) For the purposes of sections 26 and 26A below, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998. (1B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 24 above as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing."; 1176 (b) for subsection (3) there is substituted— (3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 24 above. (3A) In making any report on a reference under section 24 above the Competition Commission must have regard to the following considerations before disclosing any information. (3B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. (3C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(3D) The third consideration is the extent to which the disclosure of the information mentioned in subsection (3C)(a) or (b) above is necessary for the purposes of the report. (2D) In section 26A (Commission's power to veto modifications following report)— (a) after subsection (11) there is inserted— (11A) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under subsection (4)(a), (6) or (8). (11B) In giving any notice under subsection (4)(a) or (6), or publishing any notice under subsection (8), the Commission must have regard to the following considerations before disclosing any information. (11C) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest. (11D) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual's interests.

(11E) The third consideration is the extent to which the disclosure of the information 1177 mentioned in subsection (11D)(a) or (b) is necessary for the purposes of the notice. (11F) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (11G) and (11H), for the purposes of any investigation by the Commission for the purposes of the exercise of its functions under this section, as they apply for the purposes of any investigation on references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(11G) Section 107 shall, in its application by virtue of subsection (11F), have effect as if—

(a) subsection (2) were omitted;
(b) in subsection (4), for the words "the publication of the report of the Commission on the reference concerned" there were substituted "the publication by the Commission of a notice under section 26A(8) of the Gas Act 1986 in connection with the reference concerned or, if no direction has been given by the Commission under section 26A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period"; and
(c) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(11H) Section 108(5)(b) shall, in its application by virtue of subsection (11F), have effect as if for sub-paragraph (ii) there were substituted— (ii) if earlier, the day on which a notice is published by the Commission under section 26A(8) of the Gas Act 1986 in connection with the reference concerned or, if no direction is given by the Commission under section 26A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.". (11I) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 113 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (11F) above, have effect in relation to those sections as applied by virtue of that subsection. (11J) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection."; 1178 (b) subsections (12) and (13) shall cease to have effect."

§ Page 352, line 7, at end insert— (6A) In section 41E (references to Commission about activities which are not licensable), subsections (7) and (8) shall cease to have effect. (6B) After section 41E there is inserted—

§ "41EA REFERENCES UNDER SECTION 41E: TIME LIMITS

(1) Every reference under section 41E above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Competition Commission on a reference under section 41E above shall not have effect (in particular for the purposes of section 41 D(5) above) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Authority under subsection (3) below.
(3) The Authority may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under subsection (3) above in relation to the same reference.
(5) The Authority shall publish an extension under subsection (3) above in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.

§ 41EB References under section 41E: application of Enterprise Act 2002

§ (1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 41E above as they apply for the purposes of references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(2) Section 107 shall, in its application by virtue of subsection (1) above, have effect as if—

(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(3) Section 108(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.

(4) Section 114 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with references under section 41E above as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words "the OFT," and "or the Secretary of State" were omitted. (5) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 114 of that Act (including, in particular, provisions relating to offences and the making of 1179 orders) shall, for the purposes of the application of those sections by virtue of subsection (1) or (4) above, have effect in relation to those sections as applied by virtue of those subsections. (6) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections. (6C) In section 41F (reports on references under section 41E)— (a) after subsection (3) there is inserted— (3A) For the purposes of section 41D(5), a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998. (3B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 41E as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing."; (b) for subsection (4) there is substituted— (4) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 41E. (4A) In making any report on a reference under section 41E the Competition Commission must have regard to the following considerations before disclosing any information. (4B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. (4C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(4D) The third consideration is the extent to which the disclosure of the information mentioned in subsection (4C)(a) or (b) is necessary for the purposes of the report.

§ Page 352, line 29, after "State" insert ", the Office of Fair Trading"

§ Page 353, line 9, after "State" insert ", the Office of Fair Trading"

§ Page 353, line 11, at end insert— (4) In section 238 (powers exercisable for protection of the public interest), for subsections (1) and (2) there is substituted— (1) Subsection (1A) applies where whatever needs to be remedied, mitigated or prevented by the Secretary of State, the Competition Commission or (as the case may be) the Office of Fair Trading under section 12(5) of the Competition Act 1980 or section 40(2), 54(2), 65(6), 72(2), 80(2), 133(2), 142(2) or 155(2) of, or paragraph 5(2) or 10(2) of Schedule 7 to, the Enterprise Act 2002 (powers to take remedial action following references to the Commission in connection with public bodies and certain other persons, mergers or market investigations etc.) consists of or includes— 1180

(a) conditions in licences granted by a design right owner restricting the use of the design by the licensee or the right of the design right owner to grant other licences, or
(b) a refusal of a design right owner to grant licences on reasonable terms.

(1A) The powers conferred by Schedule 8 to the Enterprise Act 2002 include power to cancel or modify those conditions and, instead or in addition, to provide that licences in respect of the design right shall be available as of right. (2) The references to anything permitted by Schedule 8 to the Enterprise Act 2002 in section 12(5A) of the Competition Act 1980 and in sections 72(4)(a), 80(4)(a), 81(2)(a), 86(1), 155(4)(a), 156(3)(a) and 159(1) of, and paragraphs 5, 10 and 11 of Schedule 7 to, the Act of 2002 shall be construed accordingly.". (5) In Schedule 2A, in paragraph 17 (powers exercisable in consequence of competition report)— (a) for sub-paragraphs (1) and (2) there is substituted— (1) Sub-paragraph (1A) applies where whatever needs to be remedied, mitigated or prevented by the Secretary of State, the Competition Commission or (as the case may be) the Office of Fair Trading under section 12(5) of the Competition Act 1980 or section 40(2), 54(2), 65(6), 72(2), 80(2), 133(2), 142(2) or 155(2) of, or paragraph 5(2) or 10(2) of Schedule 7 to, the Enterprise Act 2002 (powers to take remedial action following references to the Commission in connection with public bodies and certain other persons, mergers or market investigations etc.) consists of or includes—

(a) conditions in licences granted by the owner of a performer's property rights restricting the use to which a recording may be put by the licensee or the right of the owner to grant other licenses, or
(b) a refusal of an owner of a performer's property rights to grant licences on reasonable terms.

(i) for "A Minister" there is substituted "The Secretary of State, the Competition Commission or (as the case may be) the Office of Fair Trading";
(ii) after "he" there is inserted "or it"."

§ Page 353, line 23, at end insert— (2A) In section 12 (licence modification references to Commission)—

(a) in subsection (6A), after "sections" there is inserted "12A,";
(b) subsections (8) and (8A) shall cease to have effect.

1181 (2B) After section 12 there is inserted—

§ "12A REFERENCES UNDER SECTION 12: TIME LIMITS

(1) Every reference under section 12 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Competition Commission on a reference under section 12 above shall not have effect (and no action shall be taken in relation to it under section 14 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Authority under subsection (3) below.
(3) The Authority may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under subsection (3) above in relation to the same reference.
(5) The Authority shall, in the case of an extension made by it under subsection (3) above—

(a) publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by it under paragraph (a) above to the holder of the licence or, as the case may be, the relevant licence holders.

§ 12B REFERENCES UNDER SECTION 12: POWERS OF INVESTIGATION

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 12 above as they apply for the purposes of references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106; general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(2) Section 107 shall, in its application by virtue of subsection (1) above, have effect as if—

(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(3) Section 108(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.

(4) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 113 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) above, have effect in relation to those sections as applied by virtue of that subsection.
(5) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection."

§ (2C) In section 13 (reports on licence modification references)— (a) after subsection (1) there is inserted— (1A) For the purposes of sections 14 and 14A below, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998. (1B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 12 above as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing."; (b) for subsection (3) there is substituted— (3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 12 above. (3A) In making any report on a reference under section 12 above the Competition Commission must have regard to the following considerations before disclosing any information. (3B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. (3C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(3D) The third consideration is the extent to which the disclosure of the information mentioned in subsection (3C)(a) or (b) above is necessary for the purposes of the report. (2D) In section 14A (Commission's power to veto modifications following report)— (a) after subsection (11) there is inserted— (11A) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under subsection (4)(a), (6) or (8). (11B) In giving any notice; under subsection (4)(a) or (6), or publishing any notice under subsection (8), the Commission must have regard to the following considerations before disclosing any information. (11C) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest. 1183 (11D) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual's interests.

(11E) The third consideration is the extent to which the disclosure of the information mentioned in subsection (11D)(a) or (b) is necessary for the purposes of the notice. (11F) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (11G) and (11H), for the purposes of any investigation by the Commission for the purposes of the exercise of its functions under this section, as they apply for the purposes of any investigation on references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy)

(11G) Section 107 shall, in its application by virtue of subsection (11F), have effect as if—

(a) subsection (2) were omitted;
(b) in subsection (4), for the words "the publication of the report of the Commission on the reference concerned" there were substituted "the publication by the Commission of a notice under section 14A(8) of the Electricity Act 1989 in connection with the reference concerned or, if no direction has been given by the Commission under section 14A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the 1184 latest day on which it was possible to give such a direction within the permitted period;" and
(c) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(11H) Section 108(5)(b) shall, in its application by virtue of subsection (11F), have effect as if for sub-paragraph (ii) there were substituted— (ii) if earlier, the day on which a notice is published by the Commission under section 14A(8) of the Electricity Act 1989 in connection with the reference concerned or, if no direction is given by the Commission under section 14A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.". (11I) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 113 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (11F) above, have effect in relation to those sections as applied by virtue of that subsection. (11J) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection."; (b) subsections (12) and (13) shall cease to have effect.

§ Page 353, line 44, at end insert— (7) In section 56C (references to Commission about activities which are not licensable), subsections (7) and (8) shall cease to have effect. (8) After section 56C there is inserted—

§ "56CA REFERENCES UNDER SECTION 56C: TIME LIMITS

(1) Every reference under section 56C above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Competition Commission on a reference under section 56C above shall not have effect (in particular for the purposes of section 56B(5) above) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Authority under subsection (3) below.
(3) The Authority may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under subsection (3) above in relation to the same reference.
(5) The Authority shall publish an extension under subsection (3) above in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it.

§ 56CB References under section 56C: application of Enterprise Act 2002 (1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 56C above as they apply for the purposes of references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(2) Section 107 shall, in its application by virtue of subsection (1) above, have effect as if—

(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(3) Section 108(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.

(4) Section 114 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with references under section 56C above as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words "the OFT." and "or the Secretary of State" were omitted. (5) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 114 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) or (4) above, have effect in relation to those sections as applied by virtue of those subsections. (6) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections. (9) In section 56D (reports on references under section 56C)— (a) after subsection (3) there is inserted— (3A) For the purposes of section 56B(5), a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998. (3B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 56C as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing."; (b) for subsection (4) there is substituted— (4) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 56C. (4A) In making any report on a reference under section 56C the Competition Commission must have regard to the following considerations before disclosing any information. (4B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. 1186 (4C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks, might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(4D) The third consideration is the extent to which the disclosure of the information mentioned in subsection (4C)(a) or (b) is necessary for the purposes of the report."

§ Page 354, line 30, at end insert "; (iv) sub-paragraph (5) shall cease to have effect;

§ Page 354, line 32, at end insert "; (ca) after paragraph 4 there is inserted—

§ "Enforcement

§ 4A (1) The court may, on an application by the OFT, enquire into whether any person ("the defaulter") has refused or otherwise failed, without reasonable excuse, to comply with a notice under paragraph 4.

§ (2) An application under sub-paragraph (1) shall include details of the possible failure which the OFT considers has occurred.

§ (3) In enquiring into a case under sub-paragraph (1), the court shall hear any witness who may be produced against or on behalf of the defaulter and any statement which may be offered in defence.

§ (4) Sub-paragraphs (5) and (6) apply where the court is satisfied, after hearing any witnesses and statements as mentioned in sub-paragraph (3), that the defaulter has refused or otherwise failed, without reasonable excuse, to comply with the notice under paragraph 4.

§ (5) The court may punish the defaulter as it would have been able to punish him had he been guilty of contempt of court.

§ (6) Where the defaulter is a body corporate, the court may punish any director or officer of the defaulter as it would have been able to punish that director or officer had the director or officer been guilty of contempt of court.

§ (7) In this section "the court"—

(a) in relation to England and Wales, means the High Court, and
(b) in relation to Scotland, means the Court of Session.

§ 4B (1) A person commits an offence if he intentionally alters, suppresses or destroys a document which he has been required to produce by a notice under paragraph 4.

§ (2) A person who commits an offence under sub-paragraph (1) shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.";"

§ Page 355, line 47, at end insert "; (c) subsection (3) shall cease to have effect.

§ (4) After section 46 there is inserted—

§ "46A ENFORCEMENT OF NOTICES UNDER SECTION 46

(1) The High Court may, on an application by the OFT, enquire into whether any person ("the defaulter") has refused or otherwise failed, without reasonable excuse, to comply with a notice under section 46(1).
(2) An application under subsection (1) shall include details of the possible failure which the OFT considers has occurred
(3) In enquiring into a case under subsection (1), the High Court shall hear any witness who may be produced against or on behalf of the defaulter and any statement which may be offered in defence.
(4) Subsections (5) and (6) apply where the High Court is satisfied, after hearing any witnesses and statements as mentioned in subsection (3), that the defaulter has refused or otherwise failed, without reasonable excuse, to comply with the notice under section 46(1).
(5) The High Court may punish the defaulter as it would have been able to punish him had he been guilty of contempt of court.
(6) Where the defaulter is a body corporate, the High Court may punish any director or officer of the defaulter as it would have been able to punish that director or officer had the director or officer been guilty of contempt of court.

§ 46B ALTERING, ETC. DOCUMENTS REQUIRED TO BE PRODUCED UNDER SECTION 46

(1) A person commits an offence if he intentionally alters, suppresses or destroys a document which he has been required to produce by a notice under section 46(1).
(2) A person who commits an offence under subsection (1) shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.""

§ Page 360, line 18, leave out from "if" to end of line 21 and insert"—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted."

§ Page 362, line 29, at end insert— (2A) In section 12(5) (determinations under conditions of appointment) for "the 1973 Act" there is substituted "the Enterprise Act 2002". (2B) In section 14 (conditions of appointment: modification references to Commission), subsections (7) and (7A) shall cease to have effect. (2C) After section 14 there is inserted—

§ "14A REFERENCES UNDER SECTION 14: TIME LIMITS

(1) Every reference under section 14 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Competition Commission on a reference under section 14 above shall not have effect (and no action shall be taken in relation to it under section 16 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Director under subsection (3) below.
(3) The Director may, if he has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under subsection (3) above in relation to the same reference.
(5) The Director shall, in the case of an extension made by him under subsection (3) above—

(a) publish that extension in such manner as he considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by him under paragraph (a) above to the company whose appointment is mentioned in the reference.

§ 14B REFERENCES UNDER SECTION 14: POWERS OF INVESTIGATION

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 14 above as they apply for the purposes of references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(2) Section 107 shall, in its application by virtue of subsection (1) above, have effect as if—

(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(3) Section 108(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.

(4) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 113 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) above, have effect in relation to those sections as applied by virtue of that subsection.
(5) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of that subsection."

(2D) In section 15 (reports on modification references)— (a) after subsection (1) there is inserted— (1A) For the purposes of section 16 below, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998. (1B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 14 above as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing."; (b) for subsection (3) there is substituted— (3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 14 above. (3A) In making any report on a reference under section 14 above the Competition Commission must have regard to the following considerations before disclosing any information. (3B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. 1189 (3C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(3D) The third consideration is the extent to which the disclosure of the information mentioned in subsection (3C)(a) or (b) above is necessary for the purposes of the report."

§ Page 364, line 9, at end insert— (1A) In Article 15 (licence modification references to Commission) paragraphs (8) and (8A) shall cease to have effect. (1B) After Article 15 there is inserted—

§ "15A REFERENCES UNDER ARTICLE 15: TIME LIMITS

(1) Every reference under Article 15 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Competition Commission on a reference under Article 15 shall not have effect (and no action shall be taken in relation to it under Article 17) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Director under paragraph (3).
(3) The Director may, if he has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under paragraph (3) in relation to the same reference.
(5) The Director shall, in the case of an extension made by him under paragraph (3)—

(a) publish that extension in such manner as he considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by him under sub-paragraph (a) to the licence holder.

§ 15B REFERENCES UNDER ARTICLE 15: POWERS OF INVESTIGATION

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs (2) and (3), for the purposes of references under Article 15 as they apply for the purposes of references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(2) Section 107 shall, in its application by virtue of paragraph (1), have effect as if—

(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(3) Section 108(5)(b)(ii) shall, in its application by virtue of paragraph (1), have effect as if—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.

(4) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 113 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (1), have effect in relation to those sections as applied by virtue of that paragraph.
(5) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph."

(1C) In Article 16 (reports on licence modification references)— (a) after paragraph (1) there is inserted— (1A) For the purposes of Article 17, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998. (1B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under Article 15 as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing."; (b) for paragraph (3) there is substituted— (3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under Article 15. (3A) In making any report on a reference under Article 15 the Competition Commission must have regard to the following considerations before disclosing any information. (3B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. (3C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(3D) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (3C)(a) or (b) is necessary for the purposes of the report."

§ Page 365, line 15, at end insert— (2A) In section 13 (licence modification references to Commission)—

(a) in subsection (1A), after "section" in the first place where it appears there is inserted ", section 13A below";
(b) subsections (8) and (8A) shall cease to have effect.

(2B) After section 13 there is inserted— 13A References under section 13: time limits

(1) Every reference under section 13 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Competition Commission on a reference under section 13 above shall not have effect (and no action shall be taken in relation to it under section 15 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the appropriate authority under subsection (3) below.
(3) The appropriate authority may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under subsection (3) above in relation to the same reference.
(5) The appropriate authority shall, in the case of an extension made by it under subsection (3) above—

(a) publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by it under paragraph (a) above to the holder of the licence.

13B References under section 13: application of Enterprise Act 2002

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3) below, for the purposes of references under section 13 above as they apply for the purposes of references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(2) Section 107 shall, in its application by virtue of subsection (1) above, have effect as if—

(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(3) Section 108(5)(b)(ii) shall, in its application by virtue of subsection (1) above, have effect as if—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.

(4) Section 114 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with references under section 13 as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words "the OFT," and "or the Secretary of State" were omitted.
(5) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 114 of that Act (including, in particular, provisions relating to offences and the making of orders), shall, for the purposes of the application of those sections by virtue of subsection (1) or (4) above, have effect in relation to those sections as applied by those subsections.
(6) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections."

(2C) In section 14 (reports on licence modification references)— (a) after subsection (1) there is inserted— (1A) For the purposes of sections 15 to 15B below, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998. (1B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 13 above as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing."; (b) for subsection (3) there is substituted— (3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 13 above. (3A) In making any report on a reference under section 13 above the Competition Commission must have regard to the following considerations before disclosing any information. (3B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. (3C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(3D) The third consideration is the extent to which the disclosure of the information mentioned in subsection (3C)(a) or (b) above is necessary for the purposes of the report. (2D) In section 15C (provisions supplementary to Commission's power to veto modifications following report), for subsections (1) and (2) there is substituted— (1) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under section 15A(4) or 15B(3) above. (2) In giving any notice under section 15A(4) or 15B(3) above, the Competition Commission must have regard to the following considerations before disclosing any information. 1193 (2A) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. (2B) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(2C) The third consideration is the extent to which the disclosure of the information mentioned in subsection (2B)(a) or (b) above is necessary for the purposes of the notice. (2D) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2E) and (2F) below, for the purposes of any investigation by the Competition Commission for the purposes of the exercise of its functions under section 15A or 15B above, as they apply for the purposes of any investigation on references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(2E) Section 107 shall, in its application by virtue of subsection (2D) above, have effect as if—

(a) subsection (2) were omitted;
(b) in subsection (4), for the words "the publication of the report of the Commission on the reference concerned" there were substituted "the sending of a copy to the Regulator under section 15B(5) of the Railways Act 1993 of the modifications made by the Commission in connection with the reference concerned or, if no direction has been given by the Commission under section 15A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest 1194 day on which it was possible to give such a direction within the permitted period"; and
(c) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(2F) Section 108(5)(b) shall, in its application by virtue of subsection (2D) above, have effect as if for sub-paragraph (ii) there were substituted— (ii) if earlier, the day on which a copy of the modifications made by the Commission in connection with the reference concerned is sent to the Regulator under section 15B(5) of the Railways Act 1993 or, if no direction is given by the Commission under section 15A(1) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.". (2G) Section 114 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with the exercise of its functions under section 15A and 15B above as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words "the OFT," and "or the Secretary of State" were omitted. (2H) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 114 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (2D) or (2G) above, have effect in relation to those sections as applied by virtue of those subsections. (2I) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections."

§ Page 365, line 42, at end insert— (7A) In section 74(7) (annual and other reports of the Regulator), for "Section 125(1) of the 1973 Act (annual and other reports)" there is substituted "Paragraph 12A(1) of Schedule 7 to the Competition Act 1998 (annual reports of the Competition Commission)".

§ Page 366, line 11, at end insert— (10) In Schedule 4A (review of access charges by Regulator)— (a) for paragraph 10 there is substituted—

§ "References under paragraph 9: time limits

§ 10(1) Every reference under paragraph 9 above shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.

§ (2) A report of the Competition Commission on a reference under paragraph 9 above shall not have effect (and no action shall be taken in relation to it under paragraph 12 below) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Regulator under sub-paragraph (3) below.

§ (3) The Regulator may, if he has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.

§ (4) No more than one extension is possible under sub-paragraph (3) above in relation to the same reference.

§ (5) The Regulator shall, in the case of an extension made by him under sub-paragraph (3) above—

(a) publish that extension in such manner as he considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by him under paragraph (a) above to the persons on whom a copy of the review notice was served.

§ References under paragraph 9: application of Enterprise Act 2002

§ 10A (1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in sub-paragraphs (2) and (3) below, for the purposes of references under paragraph 9 above as they apply for the purposes of references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

§ (2) Section 107 shall, in its application by virtue of sub-paragraph (1) above, have effect as if—

(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

§ (3) Section 108(5)(b)(ii) shall, in its application by virtue of sub-paragraph (1) above, have effect as if—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.

§ (4) Section 114 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with references under paragraph 9 above as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words "the OFT," and "or the Secretary of State" were omitted.

§ (5) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 114 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of sub-paragraph (1) or (4) above, have effect in relation to those sections as applied by virtue of those sub-paragraphs.

§ (6) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those sub-paragraphs."; (b) in paragraph 11— (i) after sub-paragraph (4) there is inserted— (4A) For the purposes of paragraphs 12 to 14 below, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998. (4B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under paragraph 9 above as the 1196 conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing."; (ii) for sub-paragraph (5) there is substituted— (5) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under paragraph 9 above. (5A) In making any report on a reference under paragraph 9 above the Competition Commission must have regard to the following considerations before disclosing any information. (5B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. (5C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(5D) The third consideration is the extent to which the disclosure of the information mentioned in sub-paragraph (5C)(a) or (b) above is necessary for the purposes of the report."; (c) in paragraph 15, for sub-paragraphs (1) and (2) there is substituted— (1) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under paragraph 13(4) or 14(3) above. (2) In giving any notice under paragraph 13(4) or 14(3) above, the Competition Commission must have regard to the following considerations before disclosing any information (2A) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. (2B) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(2C) The third consideration is the extent to which the disclosure of the information mentioned in sub-paragraph (2B)(a) or (b) above is necessary for the purposes of the notice. (2D) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in sub-paragraphs (2E) and (2F) below, in relation to any 1197 investigation by the Competition Commission for the purposes of the exercise of its functions under paragraph 13 or 14 above, as they apply for the purposes of any investigation on references under that Part—

(a) section 106 (attendance of witnesses and production of documents, etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111; (appeals in relation to penalties)
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(2E) Section 107 shall, in its application by virtue of sub-paragraph (2D) above, have effect as if—

(a) subsection (2) were omitted;
(b) in subsection (4), for the words "the publication of the report of the Commission on the reference concerned" there were substituted "the sending of a copy to the Regulator under paragraph 14 of Schedule 4A to the Railways Act 1993 of the relevant changes made by the Commission in connection with the reference concerned or, if no direction has been given by the Commission under paragraph 13(1) of that Schedule to that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period"; and
(c) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(2F) Section 108(5)(b) shall, in its application by virtue of sub-paragraph (2D) above, have effect as if for sub-paragraph (ii) there were substituted— (ii) if earlier, the day on which a copy of the relevant changes made by the Commission in connection with the reference concerned is sent to the Regulator under paragraph 14 of Schedule 4A to the Railways Act 1993 or, if no direction is given by the Commission under paragraph 13(1) of that Schedule to that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.". (2G) Section 114 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with the exercise of its functions under paragraph 13 or 14 above as it applies in relation to its functions under 1198 Part 3 of that Act but as if, in subsections (1)(a) and (2), the words "the OFT," and "or the Secretary of State" were omitted. (2H) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 114 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of sub-paragraph (2D) or (2G) above, have effect in relation to those sections as applied by virtue of those sub-paragraphs. (2I) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those sub-paragraphs.""'

§ Page 367, line 2, at end insert— (1A) In Article 35 (supplementary provisions relating to references to the Commission), paragraphs (3) and (3A) shall cease to have effect. (1B) After Article 35 there is inserted—

§ "35A REFERENCES UNDER ARTICLE 34: TIME LIMITS

(1) Every reference under Article 34 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Commission on a reference under Article 34 shall not have effect (and no action shall be taken in relation to it under Article 37) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the CAA under paragraph (3).
(3) The CAA may, if it has received representations on the subject from the Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under paragraph (3) in relation to the same reference.
(5) The CAA shall, in the case of an extension made by it under paragraph (3)—

(a) publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by it under sub-paragraph (a) to the airport operator concerned and the Department.

§ 35B REFERENCES UNDER ARTICLE 34: POWERS OF INVESTIGATION

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs (2) and (3), for the purposes of references under Article 34 as they apply for the purposes of references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(2) Section 107 shall, in its application by virtue of paragraph (1), have effect as if—

(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(3) Section 108(5)(b)(ii) shall, in its application by virtue of paragraph (1), have effect as if—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.

(4) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 113 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (1), have effect in relation to those sections as applied by virtue of that paragraph.
(5) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph."

(1C) In Article 36 (reports on references)— (a) after paragraph (2) there is inserted— (2A) For the purposes of Article 37(2), a conclusion contained in a report of the Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998. (2B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under Article 34 as the conclusions of the Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing."; (b) for paragraph (4) there is substituted— (4) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Commission on a reference under Article 34. (4A) In making any report on a reference under Article 34 the Commission must have regard to the following considerations before disclosing any information. (4B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Commission thinks is contrary to the public interest. (4C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Commission thinks might significantly harm the individual's interests.

(4D) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (4C)(a) or (b) is necessary for the purposes of the report."

§ Page 367, line 40, at end insert— (1A) In Article 15 (licence modification references to Commission)—

(a) paragraphs (9) and (9A) shall cease to have effect;
(b) in paragraph (10), after "Articles" there is inserted"15A,".

1200 (1B) After Article 15 there is inserted—

§ "15A REFERENCES UNDER ARTICLE 15: TIME LIMITS

(1) Every reference under Article 15 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Competition Commission on a reference under Article 15 shall not have effect (and no action shall be taken in relation to it under Article 17) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Director under paragraph (3).
(3) The Director may, if he has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under paragraph (3) in relation to the same reference.
(5) The Director shall, in the case of an extension made by him under paragraph (3)—

(a) publish that extension in such manner as he considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by him under sub-paragraph (a) to the holder of the licence or, as the case may be, the relevant licence holders.

§ 15B REFERENCES UNDER ARTICLE 15: POWERS OF INVESTIGATION

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in paragraphs (2) and (3), for the purposes of references under Article 15 as they apply for the purposes of references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(2) Section 107 shall, in its application by virtue of paragraph (1), have effect as if—

(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(3) Section 108(5)(b)(ii) shall, in its application by virtue of paragraph (1), have effect as if—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.

(4) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 113 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of paragraph (1), have effect in relation to those sections as applied by virtue of that paragraph.
(5) Accordingly, corresponding provisions of this Order shall not have effect in relation to those sections as applied by virtue of that paragraph."

1201 (1C) In Article 16 (reports on licence modification references)— (a) after paragraph (1) there is inserted— (1A) For the purposes of Article 17, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998. (1B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under Article 15 as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing."; (b) for paragraph (3) there is substituted— (3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under Article 15. (3A) In making any report on a reference under Article 15 the Competition Commission must have regard to the following considerations before disclosing any information. (3B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. (3C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(3D) The third consideration is the extent to which the disclosure of the information mentioned in paragraph (3C)(a) or (b) is necessary for the purposes of the report."

§ Page 368, line 26, at end insert— (1A) In section 3(4)(b) (excluded agreements), for "the Fair Trading Act 1973" there is substituted "the Enterprise Act 2002".

§ Page 371, line 24, after "(regulators)" insert "—

(a) in subsection (1), for the words from "any person" to the end of the subsection there is substituted "—

(a) the Director General of Telecommunications;
(b) the Gas and Electricity Markets Authority;
(c) the Director General of Electricity Supply for Northern Ireland;
(d) the Director General of Water Services;
(e) the Rail Regulator;
(f) the Director General of Gas for Northern Ireland; and
(g) the Civil Aviation Authority.";

(b)"

§ Page 373, line 27, leave out from "enterprises" to end of line 35 and insert "of the kind to which that section applies"

1202

§ Page 376, line 29, at end insert "; (b) after paragraph 2 there is inserted—

§ "Investigations under section 162: application of Enterprise Act 2002

§ 2A (1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in sub-paragraphs (2) and (3), for the purposes of any investigation by the Commission under section 162 of this Act as they apply for the purposes of references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

§ (2) Section 107 shall, in its application by virtue of sub- paragraph (1), have effect as if—

(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

§ (3) Section 108(5)(b) shall, in its application by virtue of sub-paragraph (1), have effect as if for sub-paragraph (ii) there were substituted— (ii) if earlier, the day on which the report of the Commission on the investigation concerned is made or, if the Commission decides not to make a report, the day on which the Commission makes the statement required by section 162(3) of the Financial Services and Markets Act 2000.

§ (4) Section 114 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions; of the Commission in connection with an investigation under section 162 of this Act as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words "the OFT," and "or the Secretary of State" were omitted.

§ (6) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those sub-paragraphs.

§ Section 162: modification of Schedule 7 to the Competition Act 1998

§ 2B For the purposes of its application in relation to the function of the Commission of deciding in accordance with section 162(2) of this Act not to make a report, paragraph 15(7) of Schedule 7 to the Competition Act 1998 (power of the Chairman to act on his own while a group is being constituted) has effect as if, after paragraph (a), there were inserted "; or (aa) in the case of an investigation under section 162 of the Financial Services and Markets Act 2000, decide not to make a report in accordance with subsection (2) of that section (decision not to make a report where no useful purpose would be served).

§ Reports under section 162: further provision

§ 2C (1) For the purposes of section 163 of this Act, a conclusion contained in a report of the Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the investigation concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.

1203

§ (2) If a member of a group so constituted disagrees with any conclusions contained in a report made under section 162 of this Act as the conclusions of the Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.

§ (3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Commission under section 162.";

§ (c) paragraph 3 (applied provisions) shall cease to have effect."

§ Page 376, line 43, at end insert— (1A) After section 15 (licence modification references to Commission) there is inserted—

§ "15A REFERENCES UNDER SECTION 15: TIME LIMITS

(1) Every reference under section 15 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Competition Commission on a reference under section 15 shall not have effect (and no action shall be taken in relation to it under section 17) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the Commission under subsection (3).
(3) The Commission may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under subsection (3) in relation to the same reference.
(5) The Commission shall, in the case of an extension made by it under subsection (3)—

(a) publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by it under paragraph (a) to the licence holder and the Secretary of State.

§ 15B REFERENCES UNDER SECTION 15: APPLICATION OF ENTERPRISE ACT 2002

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3), for the purposes of references under section 15 as they apply for the purposes of references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(2) Section 107 shall, in its application by virtue of subsection (1), have effect as if—

(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(3) Section 108(5)(b)(ii) shall, in its application by virtue of subsection (1), have effect as if—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.

(4) Section 114 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with references under section 15 as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words "the OFT," and "or the Secretary of State" were omitted.
(5) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 114 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) or (4), have effect in relation to those sections as applied by virtue of those subsections.
(6) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections."

(1B) After section 16 (reports on licence modification references), there is inserted—

§ "16A REPORTS ON REFERENCES UNDER SECTION 15: FURTHER PROVISION

(1) For the purposes of sections 17 and 18, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998.
(2) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 15 as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing.
(3) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 15.
(4) In making any report on a reference under section 15 the Competition Commission must have regard to the following considerations before disclosing any information.
(5) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest
(6) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(7) The third consideration is the extent to which the disclosure of the information mentioned in subsection (6)(a) or (b) is necessary for the purposes of the report."

(1C) After section 19 (procedural requirements in relation to modification) there is inserted—

§ "19A SECTIONS 18 AND 19: FURTHER PROVISION (1) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under section 19(6) or (8). (2) In giving any notice under section 19(6) or (8), the Competition Commission must have regard to the following considerations before disclosing any information. (3) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. 1205 (4) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(5) The third consideration is the extent to which the disclosure of the information mentioned in subsection (4)(a) or (b) is necessary for the purposes of the notice. (6) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (7) and (8), in relation to any investigation by the Competition Commission for the purposes of the exercise of its functions under section 18 as they apply for the purposes of any investigation on references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(7) Section 107 shall, in its application by virtue of subsection (6), have effect as if—

(a) subsection (2) were omitted;
(b) in subsection (4), for the words from "the publication" to "reference concerned" there were substituted "the sending of a copy to the Secretary of State under section 19(11) of the Postal Services Act 2000 of the modifications made by the Competition Commission in connection with the reference concerned or, if no direction has been given by the Competition Commission under section 18(2) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period"; and
(c) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(8) Section 108(5)(b) shall, in its application by virtue of subsection (6), have effect as if for sub-paragraph (ii) there were substituted— (ii) if earlier, the day on which a copy of the modifications made by the Competition Commission in connection with the reference concerned is sent to the Secretary of State under section 19(11) of the Postal Services Act 2000 or, if no direction is given by the Competition Commission under section 18(2) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.". (9) Section 114 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with the exercise of its functions under section 18 as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words "the OFT," and "or the Secretary of State" were omitted. (10) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 114 of that Act (including, in particular, provisions relating to offences and the making of 1206 orders) shall, for the purposes of the application of those sections by virtue of subsection (6) or (9), have effect in relation to those sections as applied by virtue of those subsections. (11) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections. (1D) Section 20 (application of competition legislation to references, etc.) shall cease to have effect.

§ Page 377, line 10, at end insert— (1A) In section 5(9) (annual and other reports of the Authority), for "Section 125(1) of the Fair Trading Act 1973 (annual and other reports)" there is substituted "Paragraph 12A(1) of Schedule 7 to the Competition Act 1998 (annual reports of the Competition Commission)".

§ Page 377, line 22, at end insert— (1A) In section 12 (licence modification references to Commission), subsections (9), (10) and (11) shall cease to have effect. (1B) After section 12 there is inserted—

§ "12A REFERENCES UNDER SECTION 12: TIME LIMITS

(1) Every reference under section 12 shall specify a period (not longer than six months beginning with the date of the reference) within which a report on the reference is to be made.
(2) A report of the Competition Commission on a reference under section 12 shall not have effect (and no action shall be taken in relation to it under section 14) unless the report is made before the end of the period specified in the reference or such further period (if any) as may be allowed by the CAA under subsection (3).
(3) The CAA may, if it has received representations on the subject from the Competition Commission and is satisfied that there are special reasons why the report cannot be made within the period specified in the reference, extend that period by no more than six months.
(4) No more than one extension is possible under subsection (3) in relation to the same reference.
(5) The CAA shall, in the case of an extension made by it under subsection (3)—

(a) publish that extension in such manner as it considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by it; and
(b) send a copy of what has been published by it under paragraph (a) to the licence holder and the Secretary of State.

§ 12B References under section 12: application of Enterprise Act 2002

(1) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (2) and (3), for the purposes of references under section 12 as they apply for the purposes of references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(2) Section 107 shall, in its application by virtue of subsection (1), have effect as if—

(a) subsection (2) were omitted; and
(b) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(3) Section 108(5)(b)(ii) shall, in its application by virtue of subsection (1), have effect as if—

(a) for the words "published (or, in the case of a report under section 49 or 64, given)" there were substituted "made";
(b) for the words "published (or given)", in both places where they appear, there were substituted "made"; and
(c) the words "by this Part" were omitted.

(4) Section 114 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with references under section 12 as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words "the OFT," and "or the Secretary of State" were omitted.
(5) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 114 of that Act (including, in particular, provisions relating to offences and the making of orders) shall, for the purposes of the application of those sections by virtue of subsection (1) or (4), have effect in relation to those sections as applied by virtue of those subsections.
(6) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections."

(1C) In section 13 (reports on licence modification references)— (a) after subsection (1) there is inserted— (1A) For the purposes of sections 14 to 17, a conclusion contained in a report of the Competition Commission is to be disregarded if the conclusion is not that of at least two-thirds of the members of the group constituted in connection with the reference concerned in pursuance of paragraph 15 of Schedule 7 to the Competition Act 1998. (1B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under section 12 as the conclusions of the Competition Commission, the report shall, if the member so wishes, include a statement of his disagreement and of his reasons for disagreeing."; (b) for subsection (2) there is substituted— (2) For the purposes of the law relating to defamation, absolute privilege attaches to any report made by the Competition Commission on a reference under section 12. (2A) In making any report on a reference under section 12 the Competition Commission must have regard to the following considerations before disclosing any information. (2B) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. (2C) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(2D) The third consideration is the extent to which the disclosure of the information mentioned in subsection (2C)(a) or (b) is necessary for the purposes of the report. 1208 (1D) For section 18 (provisions supplementary to exercise by Commission of functions under sections 15 and 16) there is substituted—

§ "18 SECTIONS 15 AND 16: GENERAL (1) For the purposes of the law relating to defamation, absolute privilege attaches to any notice under section 15(4) or 16(4) or (6). (2) In publishing or serving any notice under section 15(4) or 16(4) or (6), the Competition Commission must have regard to the following considerations before disclosing any information. (3) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the Competition Commission thinks is contrary to the public interest. (4) The second consideration is the need to exclude from disclosure (so far as practicable)—

(a) commercial information whose disclosure the Competition Commission thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the Competition Commission thinks might significantly harm the individual's interests.

(5) The third consideration is the extent to which the disclosure of the information mentioned in subsection (4)(a) or (b) is necessary for the purposes of the notice. (6) The following sections of Part 3 of the Enterprise Act 2002 shall apply, with the modifications mentioned in subsections (7) and (8), for the purposes of any investigation by the Competition Commission for the purposes of the exercise of its functions under section 15 or 16, as they apply for the purposes of any investigation on references under that Part—

(a) section 106 (attendance of witnesses and production of documents etc.);
(b) section 107 (enforcement of powers under section 106: general);
(c) section 108 (penalties);
(d) section 109 (penalties: main procedural requirements);
(e) section 110 (payments and interest by instalments);
(f) section 111 (appeals in relation to penalties);
(g) section 112 (recovery of penalties); and
(h) section 113 (statement of policy).

(7) Section 107 shall, in its application by virtue of subsection (6), have effect as if—

(a) subsection (2) were omitted;
(b) in subsection (4), for the words "the publication of the report of the Commission on the reference concerned" there were substituted "the publication by the Commission of a notice under section 16(6) of the Transport Act 2000 in connection with the reference concerned or, if no direction has been given by the Commission under section 15(2) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which it was possible to give such a direction within the permitted period"; and
(c) in subsection (9) the words from "or section" to "section 64(3))" were omitted.

(8) Section 108(5)(b) shall, in its application by virtue of subsection (6), have effect as if for sub-paragraph (ii) there were substituted— (ii) if earlier, the day on which a notice is published by the Commission under section 16(6) of the Transport Act 2000 in connection with the 1209 reference concerned or, if no direction is given by the Commission under section 15(2) of that Act in connection with the reference concerned and within the period permitted for that purpose, the latest day on which such a direction may be given within the permitted period.". (9) Section 114 of the Enterprise Act 2002 (false or misleading information) shall apply in relation to functions of the Competition Commission in connection with the exercise of its functions under section 15 or 16 as it applies in relation to its functions under Part 3 of that Act but as if, in subsections (1)(a) and (2), the words "the OFT," and "or the Secretary of State" were omitted. (10) Provisions of Part 3 of the Enterprise Act 2002 which have effect for the purposes of sections 106 to 114 of that Act (including, in particular, provisions relating to offences and the making of orders.) shall, for the purposes of the application of those sections by virtue of subsection (6) or (9), have effect in relation to those sections as applied by virtue of those subsections. (11) Accordingly, corresponding provisions of this Act shall not have effect in relation to those sections as applied by virtue of those subsections."

§ The noble Lord said: My Lords, I have spoken at various times, which I could list, to Amendments Nos. 291 to 345. I commend the amendments to the House. I beg to move Amendments Nos. 291 to 325 en bloc.

§ On Question, amendments agreed to.

§ Schedule 26 [Repeals and revocations]:

§ Lord McIntosh of Haringey moved Amendments Nos. 326 to 343:

§ Page 380, line 9, at end insert—

"Section 161(2)."

§ Page 380, line 22, at end insert—

"Section 26(2)."

§ Page 381, line 9, in column 2 at beginning insert—

"In section 44, subsections (3) and (3A)."

§ Page 381, line 11, in column 2 at beginning insert—

	"In section 24, subsections (7) and (7A).
	In section 26A, subsections (12) and (13)."

§ Page 381, line 12, at end insert— 1210

"In section 41E, subsections (7) and (8)."

§ Page 382, line 33, in column 2 at beginning insert—

	"In section 12, subsections; (8) and (8A).
	In section 14A, subsections (12) and (13)."

§ Page 382, line 37, at end insert—

"In section 56C, subsections (7) and (8)."

§ Page 382, line 42, leave out "paragraph" and insert "paragraphs 4(5) and"

§ Page 382, line 45, in column 2 at beginning insert—

"Section 46(3)."

§ Page 382, line 47, at end insert—

"Section 192."

§ Page 383, line 15, in column 2 at beginning insert—

"In section 14, subsections (7) and (7A)."

§ Page 383, line 28, in column 2 at beginning insert—

"Article 15(8) and (8A)."

§ Page 383, line 36, at end insert—

"Section 13(8) and (8A)."

§ Page 384, line 10, in column 2 at beginning insert—

"Article 35(3) and (3A)."

§ Page 384, line 22, in column 2 at beginning insert—

"Article 15(9) and (9A)."

§ Page 385, line 50, at end insert—

"In Schedule 14, paragraph 3."

§ Page 386, line 11, leave out column 2 and insert—

"Section 20."

§ Page 386, line 14, in column 2 at beginning insert—

"Section 12(9), (10) and (11)."

§ On Question, amendments agreed to.

§ Clause 275 [Extent]:

§ Lord McIntosh of Haringey moved Amendments Nos. 344 and 345:

§ Page 194, line 6, leave out "248" and insert "251"

§ Page 194, line 7, leave out "247" and insert "250"

§ On Question, amendments agreed to.

§ House adjourned at eighteen minutes past nine o'clock.