Amendments proposed to the Enterprise Bill - continued House of Commons

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Ms Secretary Hewitt

390

*Page     316,     line     42     [Schedule     25],      leave out from beginning to end of line 2 on page 317.


   

Ms Secretary Hewitt

391

*Page     317,     line     9     [Schedule     25],     at end insert—

'Copyright, Designs and Patents Act 1988 (c. 48)

15A (1) The Copyright, Designs and Patents Act 1988 is amended as follows.

    (2) In section 144 (powers exercisable in consequence of report of Commission) 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 or (as the case may be) the Competition Commission under section 12(5) of the Competition Act 1980 or section 40(2), 54(2), 65(6), 72(2), 80(2), 132(2), 141(2) or 154(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) consists of or includes—

(a) conditions in licences granted by the owner of copyright in a work restricting the use of the work by the licensee or the right of the copyright owner to grant other licences; or

(b) a refusal of a copyright 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 copyright 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), 154(4)(a), 155(3)(a) and 158(1) of, and paragraphs 5, 10 and 11 of Schedule 7 to, the Act of 2002 shall be construed accordingly."

    (3) In section 144(3)—

    (a)   for "A Minister" there is substituted "The Secretary of State or (as the case may be) the Competition Commission";

    (b)   after "he" there is inserted "or it".'.


   

Ms Secretary Hewitt

392

*Page     318,     line     38     [Schedule     25],     at end insert—

    '(f)   paragraph 8 (exemption from monopoly provisions) shall cease to have effect.'.


   

Ms Secretary Hewitt

393

*Page     322,     line     47     [Schedule     25],     at end insert ';

    (ii) sub-paragraphs (7) and (7A) shall cease to have effect;

    (da)    after paragraph 4 there is inserted—

"Further provision about references under paragraph 4

    4A (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 references under paragraph 4 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)(ii) shall, in its application by virtue of sub-paragraph (1), have effect as if for the words from "the latest" to the end there were substituted "the day on which the report of the Commission on the reference concerned is published.";

    (db)    in paragraph 5—

    (i) for "Director" (in each place) there is substituted "OFT";

    (ii) sub-paragraph (5) shall cease to have effect;

    (iii) after sub-paragraph (5) there is inserted—

     "(5A) For the purposes of paragraph 6, 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.

    (5B) If a member of a group so constituted disagrees with any conclusions contained in a report made on a reference under paragraph 4 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.

    (5C) 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 4.

    (5D) In making any report on a reference under paragraph 4 the Competition Commission must have regard to the following considerations before disclosing any information.

    (5E) 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.

    (5F) 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.

    (5G) The third consideration is the extent to which the disclosure of the information mentioned in sub-paragraph (5F)(a) or (b) is necessary for the purposes of the report.".'


   

Ms Secretary Hewitt

394

*Page     323,     line     1     [Schedule     25],     leave out 'paragraphs 5 and' and insert 'paragraph 6'.

   

Ms Secretary Hewitt

395

*Page     323,     [Schedule     25],     leave out line 11 and insert—

    '(iii) sub-paragraphs (3) and (4) shall cease to have effect;

    (ga)   after paragraph 8 there is inserted—

"Enforcement

     8A (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 8(1).

    (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 8(1).

    (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 or Northern Ireland, means the High Court, and

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

    8B (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 8(1).

    (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.

False or misleading information

     8C (1) A person commits an offence if—

    (a)   he supplies any information to the OFT or the Competition Commission in connection with any of their functions under this Schedule;

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

    (c)   he knows that it is false or misleading in a material respect or is reckless as to whether it is false or misleading in a material respect.

    (2) A person commits an offence if he—

    (a)   supplies any information to another person which he knows to be false or misleading in a material respect; or

    (b)   recklessly supplies any information to another person which is false or misleading in a material respect;

    knowing that the information is to be used for the purpose of supplying information to the OFT or the Competition Commission in connection with any of their functions under this Schedule.

    (3) A person who commits an offence under sub-paragraph (1) or (2) 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.".'


   

Ms Secretary Hewitt

396

*Page     325,     line     16     [Schedule     25],     at end insert—

'Osteopaths Act 1993 (c. 21)

     25A (1) The Osteopaths Act 1993 is amended as follows.

    (2) In section 33(2) (competition and anti-competitive practices)—

    (a)   for the words from the beginning to "orders)" there is substituted "Schedule 8 to the Enterprise Act 2002 (provision that may be contained in enforcement orders)";

    (b)   for "a competition" there is substituted "an enforcement".

    (3) After section 33(2) there is inserted—

    "(2A)   The references to anything permitted by Schedule 8 to the Enterprise Act 2002 in sections 154(4)(a), 155(3)(a) and 158(1) of that Act shall be construed accordingly."

    (4) In section 33(3), for "A competition" there is substituted "An enforcement".

    (5) For section 33(4) there is substituted—

    "(4)   In this section "an enforcement order" means an order under—

(a) section 154 of the Enterprise Act 2002 (orders following failure to fulfil final undertakings); or

(b) section 155 of that Act (final orders following market investigation reports).".

    (6) For section 33(5) there is substituted—

    "(5)   For the purposes of an enforcement order section 83(3) of the Enterprise Act 2002 as applied by section 158(2)(a) of that Act (power to apply orders to existing agreements) shall have effect in relation to a regulatory provision as it has effect in relation to an agreement."'.

 
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Prepared 13 Jun 2002