Office of Public Sector Information
(1) In the [1973 c. 41.] Fair Trading Act 1973, after section 56 there shall be inserted—
(1) The Director may propose that the Secretary of State accept undertakings in lieu of the Director making a monopoly reference if—
(a) he considers that a monopoly situation exists and that there are facts relating to the monopoly situation which may now or in future operate against the public interest,
(b) he intends, apart from the question of undertakings being accepted in lieu, to make a monopoly reference with respect to the existence of the monopoly situation and that the reference should be a monopoly reference not limited to the facts, and
(c) he considers that undertakings offered to be given by particular persons would be sufficient to deal with such of the relevant adverse effects of the monopoly situation as he thinks need to be dealt with.
(2) A proposal under this section shall include—
(a) a statement of the terms of the proposed undertakings and the persons by whom they are proposed to be given,
(b) a statement of the facts relating to the monopoly situation which the Director considers may now or in future operate against the public interest, and
(c) a statement of the effects identified by the Director as the relevant adverse effects of the monopoly situation.
(3) For the purposes of the law relating to defamation, absolute privilege shall attach to anything included in a proposal under this section pursuant to subsection (2)(b) or (c) of this section.
(4) In this section, references to the relevant adverse effects of a monopoly situation are to the particular effects, adverse to the public interest, which the facts relating to the monopoly situation may now or in future have.
(1) The Director may only make a proposal under section 56A of this Act if—
(a) the first or second condition is met, and
(b) the third condition is met.
(2) The first condition is that the Director has published in an appropriate manner a notice containing—
(a) each of the matters mentioned in subsection (5) of this section, and
(b) the invitation mentioned in subsection (6) of this section.
(3) The second condition is that the Director has published in an appropriate manner—
(a) a notice containing the matters mentioned in paragraphs (a) and (b) of subsection (5) of this section, and
(b) a notice containing—
(i) the matters mentioned in paragraphs (c), (d), (e) and (f) of that subsection, and
(ii) the invitation mentioned in subsection (6) of this section.
(4) The third condition is that the Director has considered any representations made to him in accordance with the notice under this section which contains the invitation mentioned in subsection (6) of this section.
(5) The matters referred to above are—
(a) the identity of the person or persons in whose favour the Director considers the monopoly situation exists,
(b) the terms of the proposed monopoly reference,
(c) the facts relating to the monopoly situation which the Director considers may now or in future operate against the public interest,
(d) the effects identified by the Director as the particular effects, adverse to the public interest, which the facts relating to the monopoly situation may now or in future have,
(e) the terms of the undertakings which the Director is, at the time of the notice, considering proposing the Secretary of State accept in lieu of the Director making the proposed monopoly reference (“the potential undertakings”), and
(f) the identity of the persons by whom the potential undertakings would be given.
(6) The invitation referred to above is an invitation to make representations to the Director, within such time as he may specify, about the potential undertakings being the subject of a proposal under section 56A of this Act.
(7) For the purposes of the law relating to defamation, absolute privilege shall attach to anything contained in a notice published under this section.
(8) In this section, references to an appropriate manner, in relation to the publication of a notice by the Director, are to such manner as he considers most suitable for the purpose of bringing the notice to the attention of persons who, in his opinion, are likely to be interested in it.
(1) The Director shall—
(a) in formulating the statement required by section 56A(2)(b) or (c) of this Act, and
(b) in publishing a notice under section 56B of this Act containing the matters mentioned in subsection (5)(c) and (d) of that section,
have regard to the need for excluding, so far as practicable, any matter to which subsection (2) or (3) of this section applies.
(2) This subsection applies to any matter which relates to the private affairs of an individual, where publication of that matter would or might, in the opinion of the Director, seriously and prejudicially affect the interests of that individual.
(3) This subsection applies to any matter which relates specifically to the affairs of a particular body of persons, whether corporate or unincorporate, where publication of that matter would or might, in the opinion of the Director, seriously and prejudicially affect the interests of that body, unless in his opinion the inclusion of that matter relating specifically to that body is necessary for the purposes of the statement or notice, as the case may be.
(1) Where the Secretary of State accepts a proposal under section 56A of this Act, then, within the period of twelve months from the date of acceptance of the undertakings to which the proposal relates, no monopoly reference may be made in the same, or substantially the same, terms as those published by the Director under section 56B of this Act preparatory to making the proposal.
(2) Subsection (1) of this section shall not prevent a reference being made if the Director—
(a) considers that any of the undertakings has been breached, or needs to be varied or superseded, and
(b) has given notice of that fact to the person responsible for giving the undertaking.
(3) The Secretary of State shall send to the Director a copy of every undertaking accepted pursuant to a proposal under section 56A of this Act.
(4) For the purposes of subsection (1) of this section, the Secretary of State shall be treated as accepting a proposal under section 56A of this Act if he accepts the undertakings to which the proposal relates, either in the form in which they were proposed or with such modifications as he thinks fit; and references in this Act to an undertaking accepted pursuant to a proposal under that section shall be construed accordingly.
(1) The Director shall keep the carrying out of an undertaking to which this section applies under review, and from time to time consider whether, by reason of any change of circumstances, the undertaking is no longer appropriate and either—
(a) one or more of the parties to it can be released from it, or
(b) it needs to be varied or to be superseded by a new undertaking.
(2) If it appears to the Director—
(a) that any one or more of the parties to an undertaking to which this section applies can be released from it,
(b) that such an undertaking needs to be varied or to be superseded by a new undertaking, or
(c) that there has been any failure to carry out such an undertaking,
he shall give to the Secretary of State such advice as he may think proper in the circumstances.
(3) Where the Director advises the Secretary of State under subsection (2) of this section that an undertaking needs to be varied or to be superseded by a new undertaking, he shall propose the terms of variation or, as the case may be, the new undertaking.
(4) The Director shall, if the Secretary of State so requests, give him advice with respect to the release, variation or superseding of an undertaking to which this section applies.
(5) In this section, references to an undertaking to which this section applies are to an undertaking accepted—
(a) pursuant to a proposal under section 56A of this Act, or
(b) under section 56F of this Act.
(1) The Secretary of State may only—
(a) accept a new undertaking in place of an undertaking to which this section applies,
(b) release a person from such an undertaking, or
(c) agree to the variation of such an undertaking,
after considering the advice of the Director on the subject.
(2) The Secretary of State shall send to the Director—
(a) a copy of every undertaking accepted under this section,
(b) particulars of every variation of an undertaking agreed under this section, and
(c) particulars of every release of a person from an undertaking under this section.
(3) In this section, references to an undertaking to which this section applies are to an undertaking accepted—
(a) pursuant to a proposal under section 56A of this Act, or
(b) under this section.
(1) The Secretary of State shall arrange for the publication in such manner as he considers appropriate of—
(a) every undertaking accepted—
(i) pursuant to a proposal under section 56A of this Act, or
(ii) under section 56F of this Act, and
(b) every variation or release under that section.
(2) Where the Secretary of State accepts undertakings pursuant to a proposal under section 56A of this Act, he shall arrange for the statements included in the proposal under subsection (2)(b) and (c) of that section to be published in such manner as he considers appropriate.
(3) If it appears to the Secretary of State that the publication of any matter contained in a statement which falls to be published under subsection (2) of this section would be against the public interest, he shall exclude that matter from the statement as published under that subsection.
(4) Without prejudice to subsection (3) of this section, if the Secretary of State considers that it would not be in the public interest to disclose—
(a) any matter contained in a statement which falls to be published under subsection (2) of this section relating to the private affairs of an individual whose interests would, in the opinion of the Secretary of State, be seriously and prejudicially affected by the publication of that matter, or
(b) any matter contained in such a statement relating specifically to the affairs of a particular person whose interests would, in the opinion of the Secretary of State, be seriously and prejudicially affected by the publication of that matter,
the Secretary of State shall exclude that matter from the statement as published under subsection (2) of this section.”
(2) Schedule 2 to this Act (sectoral regulators) shall have effect.
(1) Section 57 of the [1973 c. 41.] Fair Trading Act 1973 shall be amended as follows.
(2) In subsection (1) (which defines “newspaper proprietor” and explains references to the newspapers of a newspaper proprietor) for the words from the beginning of paragraph (b) to the end of the subsection there shall be substituted—
“(b) “newspaper proprietor” includes (in addition to an actual proprietor of a newspaper) any member of a group of persons of which another member is an actual proprietor of a newspaper.
(1A) In this Part of this Act, any reference to the newspapers of a newspaper proprietor (“NP”) is to—
(a) all newspapers of which NP is an actual proprietor, and
(b) all newspapers of which a member of a group of persons of which NP is a member is an actual proprietor.”
(3) In subsection (2) (definition of “transfer of a newspaper or of newspaper assets”) in paragraph (a), for “, a newspaper proprietor in relation to a newspaper;” there shall be substituted “—
(i) an actual proprietor of a newspaper, or
(ii) a person with a primary or secondary controlling interest in an actual proprietor of a newspaper;”.
(4) In subsection (4) (definition of “controlling interest”) before “controlling” there shall be inserted “primary”.
(5) After that subsection there shall be inserted—
“(5) For the purposes of this section a person (“A”) has a secondary controlling interest in a body corporate (“B”) if, without having a primary controlling interest in B—
(a) A has a primary controlling interest in a body corporate which has a primary controlling interest in B, or
(b) A is connected to B by a chain of any number of other bodies corporate, in the first of which A has a primary controlling interest, in the second of which the first has a primary controlling interest, and so on, the last such body corporate having a primary controlling interest in B.
(6) For the purposes of this section a group of persons consists of any number of persons of whom the first is—
(a) a person other than a body corporate, or
(b) a body corporate in which no other person has a primary controlling interest,
and the others are the bodies corporate in which the first has a primary or secondary controlling interest.
(7) In determining for the purposes of subsection (6)(b) of this section whether a body corporate (“X”) is one in which another person has a primary controlling interest, there shall be disregarded any body corporate in which X has a primary or secondary controlling interest.”
(6) Subsections (1) to (5) above shall be deemed always to have had effect.
(7) Section 8 of the [1965 c. 50.] Monopolies and Mergers Act 1965 shall be deemed never to have applied to a transaction to which it would not have applied had there been in force at the time of the transaction amendments of that Act corresponding to the amendments of the [1973 c. 41.] Fair Trading Act 1973 made by this section.
(1) In section 75G of the Fair Trading Act 1973 (acceptance of undertakings) subsections (2) and (3) (under which undertakings are limited to divestment matters) shall cease to have effect.
(2) In section 75K of that Act (order of Secretary of State where undertaking not fulfilled) in subsection (2) (powers which he may exercise by order) for “powers specified in paragraphs 9A and 12 to 12C and Part II of Schedule 8 to this Act” there shall be substituted “relevant powers”.
(3) In that section, there shall be inserted at the end—
“(6) In subsection (2) of this section, “the relevant powers” means—
(a) in relation to an undertaking to which subsection (7) of this section applies (“a divestment undertaking”), the powers specified in paragraphs 9A and 12 to 12C and Part II of Schedule 8 to this Act, and
(b) in relation to an undertaking which is not a divestment undertaking, the powers specified in that Schedule.
(7) This subsection applies to an undertaking which provides for—
(a) the division of a business by the sale of any part of the undertaking or assets or otherwise (for which purpose all the activities carried on by way of business by any one person or by any two or more interconnected bodies corporate may be treated as a single business),
(b) the division of a group of interconnected bodies corporate, or
(c) the separation, by the sale of any part of the undertaking or assets concerned or other means, of enterprises which are under common control otherwise than by reason of their being enterprises of interconnected bodies corporate.
(8) Schedule 8 to this Act shall, to such extent as is necessary for the purpose of giving effect to subsection (2) of this section, have effect as if, in paragraph 1 of that Schedule, after “section 73” there were inserted “or section 75K”.”
(1) In the [1976 c. 34.] Restrictive Trade Practices Act 1976, after section 27 there shall be inserted—
(1) For the purposes of this Act, a non-notifiable agreement is one which—
(a) is subject to registration under this Act,
(b) is, and has always been, of a description specified for the purposes of this section by order made by the Secretary of State,
(c) is not, and has never been, a price-fixing agreement, and
(d) is not an agreement in respect of which the Director has entered or filed particulars under section 1(2)(b) above.
(2) Without prejudice to the generality of paragraph (b) of subsection (1) above, an order under that paragraph may frame a description by reference—
(a) to the size of the businesses of the parties to an agreement, whether expressed by reference to turnover, as defined in the order, or to market share, as so defined, or in any other manner, or
(b) to exemption under, or any steps taken or decision given under or for the purpose of, any directly applicable Community provision (including any such provision as it has effect from time to time).
(3) In subsection (1)(c) above, the reference to a price-fixing agreement is to an agreement to which this Act applies by virtue of—
(a) a restriction in respect of any of the matters set out in section 6(1)(a) or (b) or 11(2)(a) above, or
(b) an information provision in respect of any of the matters set out in section 7(1)(a) or (b) or 12(2)(a) above.
(4) An order under subsection (1)(b) above shall be made by statutory instrument and may contain such transitional provisions as the Secretary of State considers appropriate.”
(2) In section 42(1) of that Act (statutory instruments subject to negative resolution procedure) in paragraph (a) (orders) after “18(5)” there shall be inserted “, 27A(1)(b)”.
(3) In section 43(1) of that Act (interpretation) there shall be inserted at the appropriate place—
““non-notifiable agreement” has the meaning given by section 27A(1) above;”.
(4) Schedule 3 to this Act (which modifies the 1976 Act in relation to non-notifiable agreements) shall have effect.
In section 23(3) of the [1976 c. 34.] Restrictive Trade Practices Act 1976 (certain categories of information to be entered or filed in a special section of the register of agreements) for paragraph (b) there shall be substituted—
“(b) particulars containing information whose publication would, in the Secretary of State’s opinion, substantially damage the legitimate business interests of any person, not being information whose publication is, in the Secretary of State’s opinion, in the public interest.”
(1) In section 5 of the [1980 c. 21.] Competition Act 1980 (grounds for competition reference) for subsection (1)(a) there shall be substituted—
“(a) there are reasonable grounds for believing that any person is pursuing, or has pursued, a course of conduct which constitutes an anti-competitive practice,”.
(2) In consequence of subsection (1) above, that Act shall be amended as mentioned in subsections (3) to (6) below.
(3) In section 3 of that Act (preliminary investigation by Director General of Fair Trading of possible anti-competitive practice) subsections (2) to (6), (9) and (10) (which provide for the formal constitution, carrying out and discontinuation of an investigation and the publication by the Director of a report following completion of an investigation) shall cease to have effect.
(4) In section 4 of that Act (undertakings) for subsections (1) to (3) there shall be substituted—
“(1) Where it appears to the Director—
(a) that there are reasonable grounds for believing that any person is pursuing, or has pursued, a course of conduct which constitutes an anti-competitive practice,
(b) that the practice may operate, now or in future, or have operated, against the public interest, and
(c) that an undertaking offered to be given to the Director by that person, or by a person associated with that person, would remedy or prevent effects adverse to the public interest which the practice may now or in future have,
he may, at any time before making a reference under section 5(1)(a) below in relation to the course of conduct in question, accept the undertaking by giving notice to the person by whom it is offered.
(2) The Director may not accept an undertaking under subsection (1) above unless he has—
(a) arranged for the publication of an appropriate notice, and
(b) considered any representations made to him in accordance with the notice.
(3) Publication under subsection (2)(a) above shall be in such manner as the Director considers most suitable for bringing the notice to the attention of persons who, in his opinion, would, if the course of conduct in question were the subject of a reference under section 5(1)(a) below, be affected by the reference or be likely to have an interest in it.
(3A) In subsection (2)(a) above, the reference to an appropriate notice is to a notice which—
(a) states that the Director is proposing to exercise his power under subsection (1) above,
(b) identifies the course of conduct whose pursuit prompts the exercise of that power,
(c) identifies the person who the Director believes is pursuing, or has pursued, that course of conduct,
(d) identifies the goods or services in relation to which the Director believes that person is pursuing, or has pursued, that course of conduct,
(e) specifies the effects which the Director has identified as effects adverse to the public interest which that course of conduct may now or in future have,
(f) sets out the terms of the undertaking which the Director is proposing to accept,
(g) identifies the person by whom the undertaking is to be given, and
(h) specifies a deadline for the making to the Director of representations about what he proposes to do.
(3B) Once the Director has considered any representations made to him in accordance with a notice under paragraph (a) of subsection (2) above, that subsection shall not apply to the acceptance of a modified version of the undertaking set out in the notice.”
(5) In that section, at the end there shall be inserted—
“(10) Subsection (6) of section 2 above shall apply for the purposes of this section as it applies for the purposes of that.”
(6) In section 6 of that Act (scope of competition references) for subsections (3) and (4) there shall be substituted—
“(3) Where the Director has accepted an undertaking under section 4 above with respect to the pursuit by any person of a course of conduct in relation to any goods or services, the Director may not, while the undertaking is in force, make a competition reference by virtue of section 5(1)(a) above with respect to the pursuit by that person of that course of conduct in relation to those goods or services.”
(7) Schedule 4 to this Act (which makes provision about sectoral regulators and with respect to transition) shall have effect.
(1) Schedule 5 to this Act (which amends the [1985 c. 6] Companies Act 1985 for the purpose of facilitating the striking off of non-trading private companies registered in Great Britain) shall have effect.
(2) Schedule 6 to this Act (which amends the [.S.I. 1986/1032 (N.I. 6).] Companies (Northern Ireland) Order 1986 for the purpose of facilitating the striking off of non-trading companies registered in Northern Ireland) shall have effect.
Section 43 of the Weights and Measures Act 1985 (which provides for the gas comprised in any foam on beer or cider to be disregarded for certain purposes) shall cease to have effect.
In section 7 of the [1986 c. 53.] Building Societies Act 1986 (power to raise funds) after subsection (2) there shall be inserted—
“(2A) In the case of deferred shares, the power to raise funds by the issue of shares includes the issue of shares at a premium.
(2B) If a building society issues deferred shares at a premium, whether for cash or otherwise, a sum equal to the aggregate amount or value of the premiums on those shares shall be transferred to the society’s reserves.”
(1) The Building Societies Act 1986 shall be amended as follows.
(2) In section 10 (advances secured on land), after subsection (4) there shall be inserted—
“(4A) The power to make an advance secured on land includes power to make an advance which is secured as mentioned in subsection (1) above by virtue of security granted otherwise than by the borrower (in this Act referred to as “an advance secured on third party land”).”
(3) In section 11, in subsection (2) (definition of class 1 advances)—
(a) in paragraph (b), at the beginning there shall be inserted “where the advance is not an advance secured on third party land,”,
(b) after that paragraph, there shall be inserted—
“(ba) where the advance is an advance secured on third party land—
(i) the borrower intends that the advance will be used for the purpose of acquiring land for the residential use of himself or a dependant of his of a prescribed description; and
(ii) the land on which the advance is secured is for the residential use of the mortgagor or a dependant of his of a prescribed description;”, and
(c) in paragraph (c), for the words from “mortgage debt” to “land)” there shall be substituted “outstanding amount secured by a mortgage of the land in favour of the society)”.
(4) In subsection (3) of that section (when requirement as to use of land for residential purposes to be treated as satisfied) the words from “the requirement” to the end shall become paragraph (a) and at the end there shall be inserted—
“(b) the requirement in subsection (2)(ba)(i) above shall be treated as satisfied if the borrower intends that no less than 40 per cent. of the area of the land will be for the residential use of himself or a dependant of his of a prescribed description; and
(c) the requirement in subsection (2)(ba)(ii) above shall be treated as satisfied if no less than 40 per cent. of the area of the land is used for residential purposes by the mortgagor or a dependant of his of a prescribed description.”
(5) In subsection (4) of that section (definition of class 2 advances) in paragraph (c), for the words from “mortgage debt” to “land)” there shall be substituted “outstanding amount secured by a mortgage of the land)”.
(6) In section 12 (class 1 and class 2 advances: supplementary provisions) after subsection (5) there shall be inserted—
“(5A) Subsection (5) above shall also apply as respects advances secured on third party land which is to any extent used for the residential use of mortgagors or persons who are dependants of theirs for the purposes of section 11(2).”
(7) In section 12(10) (reclassification of class 1 and class 2 advances following a material change of circumstances)—
(a) in paragraph (c), there shall be inserted at the beginning “in the case of an advance which is not an advance secured on third party land”, and
(b) for “or” at the end of that paragraph there shall be substituted—
“(ca) in the case of an advance which is an advance secured on third party land—
(i) is satisfied on notice given to it by the borrower that there has been a change in the use of the land acquired with the advance, or
(ii) is satisfied on notice given to it by the mortgagor that there has been a change in the use of the land on which the advance is secured, or”.
Deregulation and Contracting Out Act 1994