PART IV continued
(1) Section 13 (reports on modification references) of the 1989 Act is amended as follows.
(2) In subsection (1)(c), for “conditions of the licence” there is substituted “relevant conditions”.
(3) In subsection (5)—
(a) in paragraph (a), for the words from “such” to “relates” there is substituted “a report on a reference under section 12(1), send a copy of it to the licence holder”; and
(b) in paragraph (b), for “publish the report” there is substituted “send another copy to the Council and publish that other copy”.
(4) After subsection (5) of that section there is inserted—
“(5A) Subject to subsection (6), the Authority shall—
(a) on receiving a report on a reference under section 12(1A), send a copy of it to the Secretary of State; and
(b) not less than 14 days after that copy is received by the Secretary of State—
(i) send another copy to the Council and to each relevant licence holder; and
(ii) not less than 24 hours after complying with sub-paragraph (i) above, publish the copy sent to the Council in such manner as it considers appropriate for bringing the report to the attention of persons likely to be affected by it.”
(5) In subsection (6) of that section, for the words from “paragraph (b)” to the end there is substituted “subsection (5) or (5A), direct the Authority to exclude that matter from the copy of the report, or (as the case may be) each copy of the report, to be sent and published as mentioned in paragraph (b) of that subsection.”
(1) Section 14 of the 1989 Act (modification following report) is amended as follows.
(2) In subsection (1), for “the conditions of the licence” and “the conditions of that licence” there is substituted “the relevant conditions”.
(3) After subsection (1) there is inserted—
“(1A) Where at any time it modifies under subsection (1) the standard conditions of licences of any type in consequence of a reference under section 12(1A), the Authority may make such incidental and consequential modifications as it considers necessary or expedient of any conditions of licences of that type granted before that time.”
(4) In subsection (4)(b) after “licence” there is inserted “or, as the case may be, the relevant licence holders”.
(5) After subsection (4) there is inserted—
“(5) After considering any representations or objections made in response to proposals set out in a notice under subsection (3), the Authority shall give notice to the Competition Commission—
(a) setting out the modifications it proposes to make to remedy or prevent the adverse effects specified in the report; and
(b) stating the reasons for making the modifications.
(6) The Authority shall include with the notice under subsection (5) a copy of any representations or objections received in relation to the notice under subsection (3).
(7) If the period of four weeks from the date on which the notice under subsection (5) is given elapses without a direction under section 14A(1)(a) having been given to it, the Authority shall—
(a) make the modifications set out in the notice; or
(b) if a direction under section 14A(1)(b) has been given, make the modifications which are not specified in the direction.
(8) The modification under subsection (1) of part of a standard condition of a particular licence in consequence of a reference under section 12(1) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
(9) Where the Authority modifies the standard conditions of licences of any type as mentioned in subsection (1A), the Authority—
(a) shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that type granted after that time; and
(b) shall publish the modifications made for those purposes in such manner as it considers appropriate.”
After section 14 of the 1989 Act (modification following report) there is inserted—
(1) The Competition Commission (in this section referred to as “the Commission”) may, within the period of four weeks after the date on which it is given a notice under section 14(5), direct the Authority—
(a) not to make the modifications set out in that notice; or
(b) not to make such of the modifications as may be specified in the direction;
and the Authority shall comply with any such direction.
(2) The Secretary of State may, within the period of four weeks after the date on which the Commission is given a notice under section 14(5) and on the application of the Commission, direct that the period for giving a direction under subsection (1) (and, accordingly, the period mentioned in section 14(7)) shall be extended by 14 days.
(3) The power to give a direction under subsection (1) may only be exercised in respect of such of the modifications set out in the notice under section 14(5)(a) as appear to the Commission not to be the modifications which are requisite for the purpose of remedying or preventing all or any of the adverse effects specified in the report as effects which could be remedied or prevented by modifications.
(4) If the Commission gives a direction under subsection (1), the Commission—
(a) shall give notice setting out the modifications proposed by the Authority, the terms of the direction and the reasons for giving it; and
(b) shall itself make such modifications of the relevant conditions as appear to it to be requisite for the purpose of remedying or preventing—
(i) if the direction was given under subsection (1)(a), the adverse effects specified in the report as effects which could be remedied or prevented by modifications;
(ii) if the direction was given under subsection (1)(b), such of those adverse effects as are not remedied or prevented by the modifications made by the Authority under section 14(7)(b).
(5) In exercising its function under subsection (4)(b) the Commission shall have regard to the matters to which the Authority is required to have regard when determining the conditions of a licence.
(6) Before making modifications under subsection (4)(b) the Commission shall give notice—
(a) stating that it proposes to make the modifications and setting them out;
(b) stating the reason why it proposes to make them;
(c) specifying the period (not being less than 28 days from the date of publication of the notice) within which representations or objections with respect to the proposed modifications may be made,
and shall consider any representations or objections which are duly made and not withdrawn.
(7) A notice under subsection (4)(a) or (6) shall be given—
(a) by publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing it to the attention of persons likely to be affected by the making of the modifications; and
(b) by serving a copy on the Authority and the holder of the licence in question or, as the case may be, the relevant licence holders.
(8) After making modifications under this section the Commission shall publish a notice stating that the modifications have been made and setting them out, with the reasons for making them.
(9) Where, in consequence of a reference under section 12(1A), the Commission modifies under subsection (4)(b) the standard conditions of licences of any type, the Authority may make such incidental and consequential modifications as it considers necessary or expedient of any conditions of licences of that type granted before that time.
(10) Where the Commission modifies the standard conditions of licences of any type as mentioned in subsection (9), the Authority—
(a) shall make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that type granted after that time; and
(b) shall publish the modifications made for those purposes in such manner as it considers appropriate.
(11) The modification under this section of part of a standard condition of a particular licence in consequence of a reference under section 12(1) shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
(12) The provisions mentioned in subsection (13) are to apply in relation to the exercise by the Commission of its functions under this section as if—
(a) in section 82(1) and (2) of the [1973 c. 41.] Fair Trading Act 1973 references to a report of the Commission under that Act were references to a notice under subsection (4)(a), (6) or (8) of this section;
(b) in section 85 of that Act references to an investigation on a reference made to the Commission were references to an investigation by the Commission for the purposes of the exercise of its functions under this section.
(13) The provisions are—
(a) section 82(1) and (2) of the [1973 c. 41.] Fair Trading Act 1973 (general provisions as to reports under that Act);
(b) section 85 of that Act (attendance of witnesses and production of documents);
(c) section 24 of the [1980 c. 21.] Competition Act 1980 (modification of provisions about the Competition Commission’s general functions); and
(d) Part II of Schedule 7 to the [1998 c. 41.] Competition Act 1998 (the Competition Commission’s general functions).
(14) This section does not apply to the modification of a licence following a report of the Commission made before the commencement of section 39 of the Utilities Act 2000.”
(1) Section 15 of the 1989 Act (modification of licences by order under enactments other than the 1989 Act) is amended as follows.
(2) In subsection (1), for “the conditions of a licence” there is substituted “the conditions of a particular licence, or the standard conditions of licences of any type mentioned in section 6(1),”.
(3) After subsection (2) there is inserted—
“(2A) The modification under subsection (1) of part of a standard condition of a particular licence shall not prevent any other part of the condition from continuing to be regarded as a standard condition for the purposes of this Part.
(2B) Where the Secretary of State modifies under subsection (1) the standard conditions of licences of any type—
(a) he shall also make (as nearly as may be) the same modifications of those conditions for the purposes of their incorporation in licences of that type granted after that time; and
(b) he may, after consultation with the Authority, make such incidental or consequential modifications as he considers necessary or expedient of any conditions of any licence of that type granted before that time.
(2C) Where at any time the Secretary of State modifies standard conditions under subsection (2B)(a) for the purposes of their incorporation in licences granted after that time, he shall publish those modifications in such manner as he considers appropriate.”
(4) In subsection (2)(a), after “transmission” there is inserted “, distribution”.
(5) In subsection (2)(b), for the words from “and” to the end of the paragraph there is substituted “and at least one of the two or more enterprises—
(i) which ceased to be distinct enterprises; or
(ii) in the application of that provision as it has effect by virtue of section 75(4)(e) of that Act, which would cease to be distinct enterprises,
was or, as the case may be, is engaged in the carrying on of activities authorised or regulated by a licence.”
After section 7 of the 1989 Act there is inserted—
(1) A licence—
(a) is capable of being transferred by the licence holder, with the consent of the Authority, in accordance with this section but subject to any term as to transfer contained in the licence;
(b) may include conditions which must be complied with before the licence can be transferred.
(2) A transfer may relate to the whole or any part of the licence.
(3) The reference in subsection (2) to part of a licence is a reference to a part of the activities authorised by the licence (whether described by reference to activities being carried on by the licence holder or to activities which he is authorised by the licence to carry on).
(4) Such consent may be given subject to compliance with such modification or other conditions as the Authority considers appropriate.
(5) In the case of a partial transfer, conditions imposed under subsection (4) may make as respects so much of the licence as is proposed to be retained by the transferor provision different from that made as respects so much of the licence as is proposed to be transferred.
(6) In deciding whether to give its consent to a proposed transfer, the Authority shall apply the same criteria as it would apply if the Authority were deciding whether—
(a) in the case of a general transfer, to grant a corresponding licence to the transferee; or
(b) in the case of a partial transfer—
(i) to grant to the transferee a licence corresponding to so much of the licence as is proposed to be transferred; and
(ii) to grant to the transferor a licence corresponding to so much of the licence as is proposed to be retained.
(7) The Authority shall give the Secretary of State not less than 28 days' notice of any proposal to impose a modification condition.
(8) If, before the expiry of the time specified in a notice under subsection (7), the Secretary of State directs the Authority not to impose the condition, the Authority shall comply with the direction.
(9) Before giving consent to the transfer of a licence, the Authority shall give notice—
(a) stating that it proposes to grant consent to the transfer;
(b) stating the reasons why it proposes to give consent; and
(c) specifying the time from the date of publication of the notice (not being less than two months) within which representations or objections with respect to the transfer may be made,
and shall consider any representations or objections that are duly made and not withdrawn.
(10) A notice under subsection (9) shall be given by publishing the notice in such manner as the Authority considers appropriate for bringing it to the attention of persons likely to be affected by the transfer.
(11) A purported transfer of a licence shall be void—
(a) if the licence is not capable of transfer or the Authority has not given its consent;
(b) if the purported transfer is in breach of a condition of the licence; or
(c) if there has, before the purported transfer, been a contravention of a condition subject to compliance with which the Authority’s consent is given.
(12) In this section—
“transfer” includes any form of transfer or assignment or, in Scotland, assignation;
“modification condition” means a condition requiring or otherwise providing for the making of modifications to the conditions of a licence.”
After section 49 of the 1989 Act (keeping of register) there is inserted—
(1) This section applies to the following decisions of the Authority or the Secretary of State, namely—
(a) the revocation of a licence;
(b) the modification of the conditions of a licence;
(c) the giving of any directions or consent in pursuance of a condition included in a licence by virtue of section 7(3)(a) or (b);
(d) the determination of a question referred in pursuance of a condition included in a licence by virtue of section 7(3)(c);
(e) the determination of a dispute referred under section 23(1);
(f) the making of a final order, the making or confirmation of a provisional order or the revocation of a final order or of a provisional order which has been confirmed.
(2) As soon as reasonably practicable after making such a decision the Authority or the Secretary of State shall publish a notice stating the reasons for the decision in such manner as it or he considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be interested.
(3) The Authority shall send a copy of a notice published in respect of a decision mentioned in paragraph (a), (b), (c), (d) or (f) of subsection (1) to the licence holder to whose licence, or to whom, the decision relates.
(4) In preparing a notice under subsection (2) the Authority or the Secretary of State shall have regard to the need for excluding, so far as that is practicable, any matter which relates to the affairs of a particular individual or body of persons (corporate or unincorporate), where it or he considers that publication of that matter would or might seriously and prejudicially affect the interests of that individual or body.
(5) This section does not apply to a decision resulting in any provision which the Secretary of State has under section 49(4) directed the Authority not to enter in the register required to be kept under that section.”
After section 56 of the 1989 Act there is inserted—
(1) The Secretary of State may by order provide—
(a) that specified activities are to become licensable activities; or
(b) that specified activities are to cease to be licensable activities.
(2) For the purposes of this Part activities are licensable activities if undertaking them without the authority of a licence or exemption constitutes an offence under section 4(1).
(3) An order under this section may make consequential, transitional, incidental or supplementary provision including—
(a) amendments (or repeals) in any provision of this Act or any other enactment; and
(b) provision modifying any standard conditions of licences or (in the case of an order under subsection (1)(a)) provision determining the conditions which are to be standard conditions for the purposes of licences authorising the undertaking of activities which are to become licensable activities.
(4) An order under this section may only provide for activities to become licensable activities if they are activities connected with the generation, transmission, distribution or supply of electricity.
(5) An order under this section providing for activities to become licensable activities may only be made on the application of the Authority made in accordance with section 56B.
(6) An order under this section providing for activities to cease to be licensable activities may be made either—
(a) on the application of the Authority made in accordance with section 56E; or
(b) following consultation by the Secretary of State in accordance with section 56F.
(7) An order under this section may provide that it is to remain in force only for a period specified in the order.
(8) An order shall not be made under this section unless a draft of the statutory instrument containing it has been laid before, and approved by a resolution of, each House of Parliament.
(1) If the Authority proposes to make an application for an order providing for activities to become licensable activities, it shall give notice—
(a) stating that it proposes to make an application for an order providing for the activities to become licensable activities;
(b) setting out the conditions which it would expect such an order to determine to be standard conditions for the purposes of licences authorising the undertaking of the activities and any other conditions which it would expect to be included in such licences; and
(c) specifying a reasonable period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made with respect to the proposal,
and shall consider any representations or objections which are duly made and not withdrawn.
(2) The notice shall be given by serving a copy on the Council and by publishing it in such manner as the Authority considers appropriate for bringing it to the attention of—
(a) persons appearing to it to be carrying on, or be intending to carry on, the activities; and
(b) any other persons appearing to it to be likely to be affected by an order providing for the activities to become licensable activities.
(3) If an objection has been duly made (and not withdrawn) by a person who is carrying on or intends to carry on the activities, the Authority shall make a reference to the Competition Commission under section 56C before making the application.
(4) In any other case where the Authority considers it appropriate to make a reference to the Commission under section 56C before making the application, the Authority may make such a reference.
(5) If a reference is made to the Commission, the application shall not be made unless the Commission has reported on the reference that the fact that the activities to which the application relates are not licensable activities operates, or may be expected to operate, against the public interest.
(6) The application shall set out—
(a) the activities which the Authority considers should become licensable activities; and
(b) the conditions which the Authority would expect to be determined to be standard conditions for the purposes of licences authorising the undertaking of the activities in question and any other conditions which it would expect to be included in such licences.
(1) A reference to the Competition Commission under this section shall require the Commission to investigate and report on whether the fact that the activities specified in the reference are not licensable activities operates, or may be expected to operate, against the public interest.
(2) The Authority may, at any time, by notice given to the Commission vary the reference by adding to the activities specified in the reference or by excluding from the reference some of the activities so specified; and on receipt of such notice the Commission shall give effect to the variation.
(3) The Authority shall specify in the reference, or a variation of the reference, for the purpose of assisting the Commission in carrying out the investigation on the reference—
(a) the conditions which the Authority would expect to be determined to be standard conditions for the purposes of licences authorising the undertaking of the activities specified in the reference and any other conditions which it would expect to be included in such licences; and
(b) any effects adverse to the public interest which, in its opinion, the fact that the activities so specified are not licensable activities has or may be expected to have.
(4) As soon as practicable after making the reference, or a variation of the reference, the Authority shall serve a copy of it on the Council and publish particulars of it in such manner as the Authority considers appropriate for bringing it to the attention of—
(a) persons appearing to the Authority to be carrying on, or be intending to carry on, the activities specified in it; and
(b) any other persons appearing to the Authority to be likely to be affected by it.
(5) The Authority shall, for the purpose of assisting the Commission in carrying out the investigation on the reference, give to the Commission—
(a) any information which is in its possession and which relates to matters falling within the scope of the investigation, and which is either requested by the Commission for that purpose or is information which in its opinion it would be appropriate for that purpose to give to the Commission without any such request; and
(b) any other assistance which the Commission may require, and which it is within its power to give, in relation to any such matters,
and the Commission shall take account of the information for the purpose of carrying out the investigation.
(6) In determining for the purposes of this section whether the fact that particular activities are not licensable activities operates, or may be expected to operate, against the public interest, the Commission shall have regard to—
(a) the matters referred to in section 3A;
(b) any social or environmental policies set out or referred to in guidance issued under section 3B; and
(c) any advice given by the Health and Safety Commission or the Secretary of State under section 3C (advice about health and safety in relation to electricity).
(7) The provisions mentioned in subsection (8) are to apply in relation to references under this section as if—
(a) the functions of the Commission in relation to those references were functions under the [1973 c. 41.] Fair Trading Act 1973;
(b) the expression “merger reference” included a reference under this section;
(c) in section 70 of the [1973 c. 41.] Fair Trading Act 1973—
(i) references to the Secretary of State were references to the Authority; and
(ii) the reference to three months were a reference to six months.
(8) The provisions are—
(a) sections 70 (time limit for report on merger), 85 (attendance of witnesses and production of documents) and 93B (false or misleading information) of the [1973 c. 41.] Fair Trading Act 1973;
(b) Part II of Schedule 7 to the [1998 c. 41.] Competition Act 1998 (performance of the Commission’s general functions); and
(c) section 24 of the [1980 c. 21.] Competition Act 1980 (modification of provisions about performance of such functions).
(1) In making a report on a reference under section 56C, the Competition Commission shall include in the report definite conclusions on whether the fact that the activities specified in the reference (or the reference as varied) are not licensable activities operates, or may be expected to operate, against the public interest.
(2) The Commission shall also include in the report such an account of its reasons for those conclusions as in its opinion is expedient for facilitating proper understanding of the questions raised by the reference and of its conclusions.
(3) Where the Commission concludes that the fact that particular activities are not licensable activities operates, or may be expected to operate, against the public interest, it shall specify in the report—
(a) the effects adverse to the public interest which that fact has or may be expected to have; and
(b) any modifications to the conditions specified in the reference in accordance with section 56C(3)(a) which they consider appropriate.
(4) Section 82 of the [1973 c. 41.] Fair Trading Act 1973 (general provisions as to reports) shall apply in relation to reports of the Commission on references under section 56C as it applies to reports of the Commission under that Act.
(5) A report of the Commission on a reference under section 56C shall be made to the Authority.
(6) On receiving the report, the Authority shall send a copy of it to the Secretary of State.
(7) Subject to subsection (8), the Authority shall, not less than 14 days after the copy is received by the Secretary of State, send another copy to the Council and publish that other copy in such manner as the Authority considers appropriate for bringing the report to the attention of persons likely to be affected by it.
(8) If it appears to the Secretary of State that the publication of any matter in the report would be against the public interest or the commercial interests of any person, he may, before the end of the period of 14 days mentioned in subsection (7), direct the Authority to exclude that matter from the copy of the report to be sent to the Council and published under that subsection.
(1) Before making an application for an order providing for activities to cease to be licensable activities, the Authority shall give notice—
(a) stating that it proposes to make an application for an order providing for the activities to cease to be licensable activities; and
(b) specifying a reasonable period (not being less than 28 days from the date of publication of the notice) within which representations or objections may be made with respect to the proposal,
and shall consider any representations or objections which are duly made and not withdrawn.
(2) The notice shall be given—
(a) by serving a copy on the Secretary of State and the Council; and
(b) by publishing it in such manner as the Authority considers appropriate for bringing it to the attention of persons appearing to the Authority to be likely to be affected by such an order.
(3) An application under this section shall set out—
(a) the activities which the Authority considers should cease to be licensable activities; and
(b) the Authority’s reasons for proposing that the order be made.