Energy Act 2023

• (a) a Minister of the Crown,

• (b) the Nuclear Decommissioning Authority established by section 1 of the Energy Act 2004,

• (c) the United Kingdom Atomic Energy Authority established by section 1 of the Atomic Energy Authority Act 1954,

• (d) a company which is wholly owned by the Crown, or

• (e) a nominee of a person falling within any of paragraphs (a) to (d).

• (7) A company designated as Great British Nuclear under this section is exempt from the requirement in section 59 of the Companies Act 2006 (requirement as to use of “limited” in company name).

• (8) In this section—

• “company” means a company registered under the Companies Act 2006;

• “Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975 (see section 8(1) of that Act).

Crown status

318

• (1) Great British Nuclear is not to be regarded as a servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown.

• (2) Great British Nuclear’s property is not to be regarded as property of, or property held on behalf of, the Crown.

Great British Nuclear’s objects

319

Great British Nuclear’s objects are to facilitate the design, construction, commissioning and operation of nuclear energy generation projects for the purpose of furthering any policies published by His Majesty's government.

Financial assistance and directions etc

Financial assistance

320

• (1) The Secretary of State may provide financial assistance—

• (a) to Great British Nuclear, or

• (b) to any other person to facilitate the design, construction, commissioning and operation of nuclear energy generation projects.

• (2) Financial assistance under this section may be provided in any form and in particular may be provided—

• (a) by way of grant, loan, guarantee or indemnity,

• (b) by the acquisition of shares or any other interest in, or securities of, a body corporate,

• (c) by the acquisition of any undertaking or of any assets,

• (d) pursuant to a contract, or

• (e) by incurring expenditure for the benefit of the person assisted.

• (3) Financial assistance under this section may be provided subject to such conditions as the Secretary of State considers appropriate, which may include—

• (a) conditions about repayment with or without interest or other return, or

• (b) conditions with which Great British Nuclear or any recipient of financial assistance under subsection (1)(b) must comply if the financial assistance is used for—

• (i) acquiring shares or any other interest in, or securities of, a body corporate, or

• (ii) participating in a partnership or joint venture.

• (4) The power to provide financial assistance under this section is in addition to (and does not limit or replace) any other power of a Minister of the Crown to provide financial assistance.

• (5) In this section—

• “Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975 (see section 8(1) of that Act);

• “partnership” means— a partnership within the meaning of the Partnership Act 1890, or a limited partnership within the meaning of the Limited Partnerships Act 1907.

Secretary of State directions and guidance

321

• (1) The Secretary of State may from time to time give Great British Nuclear directions or guidance.

• (2) Before giving a direction or issuing guidance the Secretary of State must consult Great British Nuclear and such other persons as the Secretary of State considers appropriate.

• (3) Directions may be general or particular in character.

• (4) Great British Nuclear must—

• (a) comply with any directions given to it under this section, and

• (b) have regard to any guidance given to it under this section.

• (5) The Secretary of State must—

• (a) publish and lay before Parliament any directions given to Great British Nuclear under this section, and

• (b) publish any guidance given to Great British Nuclear under this section.

Annual report and accounts

Annual report

322

• (1) Great British Nuclear must, after the end of each reporting year, send a report to the Secretary of State about the activities it has undertaken during that year.

• (2) The Secretary of State must lay a copy of the report before Parliament together with any comments that the Secretary of State considers appropriate.

• (3) In this section “reporting year”, in relation to Great British Nuclear, means a period of 12 months ending with 31 March (but does not include any period before its designation as Great British Nuclear).

Annual accounts

323

• (1) Great British Nuclear must send a copy of its accounts and reports for each financial year to the Secretary of State before the end of the period for filing those accounts and reports.

• (2) The Secretary of State must lay a copy of any accounts and reports received under subsection (1) before Parliament.

• (3) In this section—

• “accounts and reports”, in relation to Great British Nuclear, means the annual accounts and reports that Great British Nuclear’s directors must deliver to the registrar under section 441 of the Companies Act 2006;

• “financial year”, in relation to Great British Nuclear, means Great British Nuclear’s financial year determined in accordance with section 390 of the Companies Act 2006;

• “period for filing”, in relation to accounts and reports for a financial year, has the same meaning as in the Companies Acts (see section 442 of the Companies Act 2006);

• “the registrar” has the meaning given by section 1060(3) of the Companies Act 2006.

Transfers and pension arrangements etc

Transfer schemes

324

• (1) The Secretary of State may make one or more schemes for the transfer of property, rights and liabilities—

• (a) to a GBN body or a proposed GBN body from—

• (i) a former GBN body;

• (ii) a GBN body;

• (iii) a proposed GBN body;

• (iv) a Minister of the Crown or Crown body;

• (v) a designated BNFL body;

• (vi) an NDA body;

• (vii) a UKAEA body;

• (viii) a nominee of a person falling within any of sub-paragraphs (i) to (vii);

• (b) to a former GBN body, a Minister of the Crown or Crown body, a designated BNFL body or a public body from—

• (i) a former GBN body;

• (ii) a GBN body.

• (2) The things that may be transferred under a transfer scheme include—

• (a) rights and liabilities relating to a contract of employment;

• (b) property, rights and liabilities that could not otherwise be transferred;

• (c) property acquired, and rights and liabilities arising, after the making of the scheme;

• (d) criminal liabilities.

• (3) A transfer scheme may—

• (a) create rights, or impose liabilities, in relation to property, rights or liabilities transferred;

• (b) make provision about the continuing effect of things done by a transferor in respect of anything transferred;

• (c) make provision about the continuation of things (including legal proceedings) in the process of being done by, on behalf of or in relation to a transferor in respect of anything transferred;

• (d) make provision for references to a transferor in an instrument or other document in respect of anything transferred to be treated as references to the transferee;

• (e) make provision for shared ownership or use of the property;

• (f) make provision for apportioning property, rights or liabilities;

• (g) require a transferor, an associate of a transferor, or a transferee, to enter into any agreement of any kind, or for a purpose, specified in or determined in accordance with the scheme;

• (h) make provision for transferring property, rights and liabilities irrespective of any requirement for consent that would otherwise apply;

• (i) make provision for preventing a right of pre-emption, right of reverter, right of forfeiture, right to compensation or other similar right from arising or becoming exercisable as a result of the transfer of property, rights or liabilities;

• (j) make provision for dispensing with any formality in relation to the transfer of property, rights or liabilities by the scheme;

• (k) make provision for reimbursing any person in respect of expenditure reasonably incurred by the person in connection with the making of a transfer scheme;

• (l) make provision that has the same or similar effect to the TUPE regulations;

• (m) make other consequential, supplementary, incidental or transitional provision.

• (4) A transfer scheme may provide—

• (a) for modifications by agreement;

• (b) for modifications to have effect from the date when the original scheme came into effect.

• (5) A transfer scheme may make provision requiring a transferor to provide such co-operation to a transferee as the transferee may reasonably require in connection with the implementation of the scheme.

• (6) The co-operation that may be required by virtue of subsection (5) includes, in particular, co-operation in relation to—

• (a) the provision of information;

• (b) consultation with representatives of employees transferred by the scheme.

• (7) Any requirement imposed on a person by a transfer scheme is enforceable by the Secretary of State in civil proceedings—

• (a) for an injunction,

• (b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988, or

• (c) for any other appropriate remedy or relief.

• (8) Before making a transfer scheme, the Secretary of State must consult—

• (a) the transferor (or, if there is more than one transferor, the transferors), and

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

• (9) Subsection (8) may be satisfied by consultation before the passing of this Act (as well as by consultation after that time).

• (10) The making of a transfer scheme is not a trigger event for the purposes of the National Security and Investment Act 2021.

• (11) In this section—

• “associate” has the meaning given by section 1152 of the Companies Act 2006;

• “company” means a company registered under the Companies Act 2006;

• “Crown body” means any body corporate in which a Minister of the Crown holds, directly or indirectly, any shares or other interest;

• “designated BNFL body” means a company designated for the purposes of Schedule 7 to the Energy Act 2004 or any body corporate in which a company designated for those purposes holds, directly or indirectly, any shares or other interest;

• “former GBN body” means— a company formerly designated as Great British Nuclear, or any body corporate in which a company formerly designated as Great British Nuclear— holds, directly or indirectly, any shares or other interest, and held, directly or indirectly, any shares or other interest, at a time at which it was designated as Great British Nuclear;

• “GBN body” means Great British Nuclear or any body corporate in which Great British Nuclear holds, directly or indirectly, any shares or other interest;

• “information” includes documents;

• “Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975 (see section 8(1) of that Act);

• “NDA company” means the Nuclear Decommissioning Authority (established by section 1 of the Energy Act 2004) or any body corporate in which the Nuclear Decommissioning Authority holds, directly or indirectly, any shares or other interest;

• “proposed GBN body” means a company that the Secretary of State proposes to designate as Great British Nuclear or any body corporate in which a company proposed to be designated for those purposes holds, directly or indirectly, any shares or other interest;

• “public body” means a body established by an enactment (within the meaning of Part 1 of this Act) or any body corporate in which a body established by an enactment holds, directly or indirectly, any shares or other interest;

• “the TUPE regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246);

• “UKAEA body” means the United Kingdom Atomic Energy Authority (established by section 1 of the Atomic Energy Authority Act 1954) or any body corporate in which the United Kingdom Atomic Energy Authority holds, directly or indirectly, any shares or other interest.

Transfer schemes: compensation

325

• (1) A scheme under section 324 may provide for a transferor or any person who has suffered loss or damage in consequence of the scheme to be entitled to compensation from the Secretary of State or a transferee under the scheme, in accordance with provision made by or under the scheme.

• (2) Where a person is entitled to compensation, the amount of compensation is to be the amount—

• (a) agreed by the Secretary of State and the person, or

• (b) in the absence of such agreement, determined by an independent valuer.

• (3) An independent valuer appointed for the purposes of subsection (2) must be appointed—

• (a) by the Secretary of State and the person, or

• (b) in the absence of such agreement, by the Secretary of State on behalf of both the Secretary of State and the person.

• (4) The Secretary of State may by regulations make provision about compensation under this section that corresponds or is similar to any provision about compensation that may be made by the Secretary of State by regulations under paragraph 8(4) of Schedule 9.

• (5) Regulations under this section are subject to the negative procedure.

Transfer schemes: taxation

326

• (1) The Treasury may by regulations make provision varying the way in which a relevant tax has effect in relation to—

• (a) anything transferred under a scheme under section 324, or

• (b) anything done for the purposes of, or in relation to, a transfer under such a scheme.

• (2) The provision that may be made under subsection (1)(a) includes, in particular, provision for—

• (a) a tax provision not to apply, or to apply with modifications, in relation to anything transferred;

• (b) anything transferred to be treated in a specified way for the purposes of a tax provision;

• (c) the Secretary of State to be required or permitted to determine, or to specify the method for determining, anything that needs to be determined for the purposes of any tax provision so far as relating to anything transferred.

• (3) The provision that may be made under subsection (1)(b) includes, in particular, provision for—

• (a) a tax provision not to apply, or to apply with modifications, in relation to anything done for the purposes of, or in relation to, the transfer;

• (b) anything done for the purposes of, or in relation to, the transfer to have or not have a specified consequence or be treated in a specified way;

• (c) the Secretary of State to be required or permitted to determine, or to specify the method for determining, anything that needs to be determined for the purposes of any tax provision so far as relating to anything done for the purposes of, or in relation to, the transfer.

• (4) In this section—

• (a) “relevant tax” means income tax, corporation tax, capital gains tax, stamp duty, stamp duty reserve tax, stamp duty land tax or value added tax;

• (b) “tax provision” means any provision—

• (i) about a relevant tax, and

• (ii) made by an enactment (within the meaning of Part 1 of this Act);

• (c) references to the transfer of a property include the grant of the lease.

• (5) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of the House of Commons.

Transfer schemes: provision of information or assistance

327

• (1) The Secretary of State may direct a person within subsection (2) to provide the Secretary of State with such specified information or assistance as the Secretary of State may reasonably require in connection with the making of a scheme under section 324.

• (2) A person is within this subsection if—

• (a) property, rights or liabilities are likely to be transferred from or to the person by such a scheme, or

• (b) the person is a body corporate that is likely to be transferred under such a scheme.

• (3) Paragraph 12(4), (6), (7) and (8) of Schedule 9 apply to a direction under this section as they apply to a direction under sub-paragraph (1) of that paragraph.

• (4) In this section—

• “assistance” includes assistance provided in a country or territory other than the United Kingdom;

• “information” includes documents;

• “specified” means specified in the direction.

Reimbursement and compensation in connection with designation

328

The Secretary of State may reimburse a person in respect of expenditure reasonably incurred by the person in preparation for or in connection with the designation of a company under section 317 (other than any expenditure incurred in connection with the making of a scheme under section 324).

Pension arrangements in connection with Great British Nuclear

329

• (1) The Secretary of State may by regulations make provision about pension arrangements in relation to Great British Nuclear that corresponds or is similar to any provision about pension arrangements in relation to the ISOP that may be made by the Secretary of State by regulations under paragraph 2 or 3 of Schedule 10 (see paragraph 4 of that Schedule for restrictions on how the power to make regulations under paragraph 2 or 3 of that Schedule may be exercised).

• (2) Before making regulations under subsection (1) that make provision corresponding or similar to the provision that may be made by regulations under paragraph 2(1) of Schedule 10, the Secretary of State must carry out a consultation corresponding to the consultation required by paragraph 2(5) of that Schedule.

• (3) Before making regulations under subsection (1) that make provision corresponding or similar to the provision that may be made by regulations under paragraph 3(1) of Schedule 10, the Secretary of State must carry out a consultation corresponding to the consultation required by paragraph 3(4) of that Schedule.

• (4) Subsections (2) and (3) may be satisfied by consultation before the passing of this Act (as well as by consultation after that time).

• (5) The Secretary of State may direct a person within subsection (6) to provide the Secretary of State with specified pensions information or such specified assistance as the Secretary of State may reasonably require in preparation for or in connection with the exercise of the power conferred on the Secretary of State by subsection (1).

• (6) The following persons are within this subsection—

• (a) the trustee of a qualifying pension scheme;

• (b) any person who exercises functions on behalf of a person within paragraph (a);

• (c) any person who is or has been an employer of a qualifying member of a qualifying pension scheme.

• (7) Sub-paragraphs (5) to (7) of paragraph 5 of Schedule 10 apply to a direction given under subsection (5) as they apply to a direction given under sub-paragraph (1) of that paragraph.

• (8) The exercise of the power conferred on the Secretary of State by subsection (1) is not a trigger event for the purposes of the National Security and Investment Act 2021.

• (9) In this section—

• “pensions information” means information that— relates to pensions or other benefits under a qualifying pension scheme, or relates to the administration of a qualifying pension scheme in respect of pensions or other benefits under the scheme;

• “qualifying member”, in relation to a qualifying pension scheme, means a person who is or has been a member (as defined by section 124(1) of the Pensions Act 1995) of the scheme;

• “qualifying pension scheme” means a pension scheme that provides for the payment of pensions or other benefits to or in respect of employees or former employees of— a transferor in relation to a transfer scheme under section 324, or an associate (as defined by section 1152 of the Companies Act 2006) of such a transferor;

• “specified” means specified in the direction.

• (10) Regulations under this section are subject to the negative procedure.

Part 15 — General

Power to make consequential provision

330

• (1) The Secretary of State may by regulations make such provision as the Secretary of State considers appropriate in consequence of or in connection with—

• (a) this Act, other than sections 205 to 208, or

• (b) any provision made under this Act.

• (2) The power to make regulations under subsection (1) may (among other things) be exercised by amending, repealing or revoking—

• (a) provision made by or under this Act or by or under primary legislation passed before, or in the same Session as, this Act;

• (b) retained direct EU legislation.

• (3) In this section, “primary legislation” means—

• (a) an Act,

• (b) an Act or Measure of Senedd Cymru,

• (c) an Act of the Scottish Parliament, or

• (d) Northern Ireland legislation.

• (4) Subject to subsection (5), regulations under subsection (1) are subject to the negative procedure.

• (5) Where regulations under subsection (1) amend or repeal provision made by primary legislation, the regulations are subject to the affirmative procedure.

Regulations

331

• (1) Regulations under this Act made by the Secretary of State, the Treasury or the GEMA are to be made by statutory instrument.

• (2) Regulations under this Act may make—

• (a) different provision for different purposes or different areas;

• (b) supplementary, incidental, consequential, transitional or saving provision.

• (3) Where regulations under this Act are subject to the affirmative procedure, they may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.

• (4) Where regulations under this Act are subject to the negative procedure, the statutory instrument containing them is subject to annulment in pursuance of a resolution of either House of Parliament.

• (5) Where regulations under this Act are subject to the made affirmative procedure, the statutory instrument containing them must be laid before Parliament after being made.

• (6) Regulations under this Act contained in a statutory instrument laid before Parliament under subsection (5) cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, the instrument is approved by a resolution of each House of Parliament.

• (7) In calculating the period of 28 days, no account is to be taken of any whole days that fall within a period during which—

• (a) Parliament is dissolved or prorogued, or

• (b) either House of Parliament is adjourned for more than four days.

• (8) If regulations cease to have effect as a result of subsection (6), that does not—

• (a) affect the validity of anything previously done under the regulations, or

• (b) prevent the making of new regulations.

• (9) Any provision that may be included in regulations under this Act subject to the negative procedure may be made by regulations subject to the affirmative procedure or the made affirmative procedure.

• (10) Any provision that may be included in regulations under this Act subject to the made affirmative procedure may be made by regulations subject to the affirmative procedure.

General definitions

332

In this Act—

• “the affirmative procedure” and “the negative procedure” are to be construed in accordance with section 331(3) and (4) respectively and “the made affirmative procedure” is to be construed in accordance with section 331(5);

• “the GEMA” means the Gas and Electricity Markets Authority.

Extent

333

• (1) The following provisions extend to England and Wales, Scotland and Northern Ireland, subject to subsection (5)—

• (a) Part 1, except Chapter 4;

• (b) Part 2;

• (c) Chapter 1 of Part 4;

• (d) Chapter 3 of Part 4, except sections 155 and 159;

• (e) section 204;

• (f) Chapter 1 of Part 8, except sections 223 and 224;

• (g) Parts 10, 11, 12 and 13;

• (h) Chapter 1 of Part 14;

• (i) section 309;

• (j) Chapter 3 of Part 14;

• (k) this Part.

• (2) The following provisions extend to England and Wales and Scotland only, subject to subsection (5)—

• (a) Chapter 4 of Part 1;

• (b) Part 3;

• (c) Chapter 2 of Part 4;

• (d) section 155;

• (e) section 159;

• (f) Parts 5 and 6;

• (g) Part 7, except section 204;

• (h) section 223;

• (i) Part 9;

• (j) Chapter 2 of Part 14, except section 309;

• (k) Chapter 4 of ​Part 14​.

• (3) Chapter 2 of Part 8 extends to England and Wales only, subject to subsection (5).

• (4) Section 224 extends to Scotland only.

• (5) Any amendment, repeal or revocation has the same extent as the provision amended, repealed or revoked, subject to subsection (6).

• (6) Paragraph 4 of Schedule 5 extends to England and Wales, Scotland and Northern Ireland.

Commencement

334

• (1) The provisions of this Act come into force on such day or days as the Secretary of State may by regulations appoint, subject to subsections (2) to (4).

• (2) The following provisions come into force on the day on which this Act is passed—

• (a) in Chapter 1 of Part 2—

• (i) section 56;

• (ii) sections 57 and 58, so far as relating to hydrogen production revenue support contracts and a hydrogen production counterparty;

• (iii) sections 65 and 66;

• (iv) section 81(1) to (3), so far as relating to a designation under section 65;

• (v) section 83, so far as relating to hydrogen production revenue support contracts and a hydrogen production counterparty;

• (vi) sections 85 and 88, so far as relating to the exercise of any power that comes into force in accordance with this paragraph,

and in this paragraph “hydrogen production revenue support contract” and “hydrogen production counterparty” have the same meaning as in that Chapter;

• (b) section 129;

• (c) Chapter 1 of Part 4;

• (d) section 154;

• (e) section 157;

• (f) section 158;

• (g) section 159;

• (h) in Part 5—

• (i) sections 169 and 170;

• (ii) section 174 (including Schedule 9) and section 175 (including Schedule 10);

• (iii) section 178(2) and (3), so far as relating to other provisions in force by virtue of this paragraph;

• (iv) sections 180 and 181;

• (i) section 203 (including Schedule 15);

• (j) section 204 (including Schedule 16);

• (k) section 215;

• (l) Part 8;

• (m) Part 11, except sections 264 and 265;

• (n) sections 307, 308 and 309;

• (o) Chapters 3 and 4 of Part 14;

• (p) this Part.

• (3) The following provisions come into force at the end of the period of 2 months beginning with the day on which this Act is passed—

• (a) Part 1;

• (b) Chapters 1 to 3, 5 and 6 of Part 2, so far as not already in force by virtue of subsection (2);

• (c) Part 3;

• (d) section 153;

• (e) section 155;

• (f) section 160;

• (f) section 202;

• (g) sections 211 to 214;

• (h) Part 10;

• (i) sections 264 and 265;

• (j) Chapter 1 of Part 13;

• (k) section 306.

• (4) Section 305 (including Schedule 22) comes into force on the day on which the Convention on Supplementary Compensation for Nuclear Damage comes into force in respect of the United Kingdom.

• (5) The Secretary of State must publish a notice of the date of that day as soon as possible afterwards.

• (6) Regulations under subsection (1) may appoint different days for different purposes or areas.

• (7) The Secretary of State may by regulations make transitional, transitory or saving provision in connection with the coming into force of any provision of this Act.

Short title

335

This Act may be cited as the Energy Act 2023.

Schedule 1

1

• (1) Sections 7 to 12 are to have effect with the following modifications until the end of the interim period.

• (2) In this Schedule “the interim period” means the period beginning when this Schedule comes into force and ending with whatever day the Secretary of State specifies by regulations.

• (3) Regulations under this paragraph are subject to the negative procedure.

2

In section 7 (power to grant licences)—

• (a) in subsection (1) for “economic regulator” substitute “Secretary of State”;

• (b) after subsection (2) insert—

(3) As soon as practicable after granting a licence, the Secretary of State must send a copy of the licence to the economic regulator.

`

3

In section 9 (procedure for licence applications)—

• (a) in subsection (1), in the words before paragraph (a), for “Secretary of State, or the economic regulator with the approval of the Secretary of State,” substitute “Secretary of State”;

• (b) in subsection (4), for “economic regulator”, in each place it occurs, substitute “Secretary of State”;

• (c) for subsection (5) substitute—

(5) A notice under subsection (4) must be given by— (a) sending a copy of the notice to the economic regulator and any appropriate devolved authority, and (b) publishing the notice in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons likely to be affected by the grant of the licence.

• (d) after subsection (10) insert—

(10A) For the purposes of subsection (5), the “appropriate devolved authorities” are— (a) the Scottish Ministers, if provision granting the licence in question would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament; (b) the Welsh Ministers, if provision granting the licence in question would be within the legislative competence of Senedd Cymru if it were contained in an Act of the Senedd (ignoring any requirement for the consent of a Minister of the Crown imposed under Schedule 7B to the Government of Wales Act 2006); (c) the Department for the Economy in Northern Ireland, if provision granting the licence in question— (i) would be within the legislative competence of the Northern Ireland Assembly if it were contained in an Act of that Assembly, and (ii) would not, if it were contained in a Bill in the Northern Ireland Assembly, result in the Bill requiring the consent of the Secretary of State under section 8 of the Northern Ireland Act 1998.

4

In section 12 (standard conditions of licences)—

• (a) in subsection (7)(b) omit “and the Secretary of State”;

• (b) omit subsection (9).

Schedule 2

Application for permission to bring appeal

1

• (1) An application for permission to bring an appeal may be made—

• (a) only by sending a notice to the CMA requesting the permission, and

• (b) only by a person entitled under section 20 to bring the appeal if permission is granted.

• (2) Where the economic regulator publishes a decision to modify the conditions of any licence under section 13(8), any application for permission to appeal is not to be made after the end of 20 working days beginning with the first working day after the day on which the decision is published.

• (3) An application for permission to appeal must be accompanied by all such information as may be required by appeal rules.

• (4) Appeal rules may require information contained in an application for permission to appeal to be verified by a statement of truth.

• (5) A person who applies for permission to bring an appeal in accordance with this paragraph is referred to in this Schedule as the appellant.

• (6) The appellant must send the economic regulator—

• (a) a copy of the application for permission to appeal at the same time as it is sent to the CMA, and

• (b) such other information as may be required by appeal rules.

• (7) The CMA’s decision whether to grant permission to appeal is to be taken by an authorised member of the CMA.

• (8) Before the authorised member decides whether to grant permission under this paragraph, the economic regulator must be given an opportunity to make representations or observations, in accordance with paragraph 3(2).

• (9) The CMA’s decision on an application for permission must be made—

• (a) where the economic regulator makes representations or observations in accordance with paragraph 3(2), before the end of 10 working days beginning with the first working day after the day on which those representations or observations are received;

• (b) in any other case, before the end of 14 working days beginning with the first working day after the day on which the application for permission is received.

• (10) The grant of permission may be made subject to conditions, which may include—

• (a) conditions which limit the matters that are to be considered on the appeal in question,

• (b) conditions for the purpose of expediting the determination of the appeal, and

• (c) conditions requiring that appeal to be considered together with other appeals (including appeals relating to different matters or decisions and appeals brought by different persons).

• (11) Where a decision is made to grant or to refuse an application for permission, an authorised member of the CMA must notify the decision, giving reasons—

• (a) to the appellant, and

• (b) to the economic regulator.

• (12) A decision of the CMA under this paragraph must be published, in such manner as an authorised member of the CMA considers appropriate, as soon as reasonably practicable after it is made.

• (13) Section 25(2) applies to the publication of a decision under sub-paragraph (12) as it does to the publication of a decision under section 25.

Suspension of decision

2

• (1) The CMA may direct that, pending the determination of an appeal against a decision of the economic regulator—

• (a) the decision is not to have effect, or

• (b) the decision is not to have effect to such extent as may be specified in the direction.

• (2) The power to give a direction under this paragraph is exercisable only where—

• (a) an application for its exercise has been made by the appellant at the same time that the appellant made an application (in accordance with paragraph 1) for permission to bring an appeal against a decision of the economic regulator;

• (b) the economic regulator has been given an opportunity of making representations or observations, in accordance with paragraph 3(2);

• (c) a person bringing the appeal who falls within section 20(2)(a) or (b) would incur significant costs if the decision were to have effect before the determination of the appeal, and

• (d) the balance of convenience does not otherwise require effect to be given to the decision pending that determination.

• (3) The CMA’s decision on an application for a direction under this paragraph must be made—

• (a) where the economic regulator makes representations or observations in accordance with paragraph 3(2) before the end of 10 working days beginning with the first working day after the day on which those representations or observations are received;

• (b) in any other case, before the end of 14 working days beginning with the first working day following the day on which the application under sub-paragraph (2)(a) is received.

• (4) The appellant must send the economic regulator a copy of the application for a direction under this paragraph at the same time as it is sent to the CMA.

• (5) The CMA’s decision whether to give a direction is to be taken by an authorised member of the CMA.

• (6) A direction under this paragraph must be—

• (a) given by an authorised member of the CMA, and

• (b) published, in such manner as an authorised member of the CMA considers appropriate, as soon as reasonably practicable after it is given.

• (7) Section 25(2) applies to the publication of a direction under sub-paragraph (6) as it does to the publication of a decision under section 25.

Time limit for representations and observations by the economic regulator

3

• (1) Sub-paragraph (2) applies where the economic regulator wishes to make representations or observations to the CMA in relation to—

• (a) an application for permission to bring an appeal under paragraph 1;

• (b) an application for a direction under paragraph 2.

• (2) The economic regulator must make the representations or observations in writing before the end of 10 working days beginning with the first working day after the day on which it received a copy of the application under paragraph 1(6) or 2(4) as the case may be.

• (3) Sub-paragraph (4) applies where an application for permission to bring an appeal has been granted and the economic regulator wishes to make representations or observations to the CMA in relation to—

• (a) the economic regulator’s reasons for the decision in relation to which the appeal is being brought, or

• (b) any grounds on which that appeal is being brought against that decision.

• (4) The economic regulator must make the representations or observations in writing before the end of 15 working days beginning with the first working day after the day on which permission to bring the appeal was granted.

• (5) The economic regulator must send a copy of the representations and observations it makes under this paragraph to the appellant.

Other

4

• (1) A group constituted by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013 for the purpose of carrying out functions of the CMA with respect to an appeal under section 20 must consist of three members of the CMA panel.

• (2) A decision of the group is effective if, and only if—

• (a) all the members of the group are present when it is made, and

• (b) at least two members of the group are in favour of the decision.

Matters to be considered on appeal

5

• (1) The CMA, if it thinks it necessary to do so for the purpose of securing the determination of an appeal within the period provided for by section 24, may disregard—

• (a) any or all matters raised by an appellant that were not raised by that appellant at the time of the relevant application, and

• (b) any or all matters raised by the economic regulator that were not contained in representations or observations made for the purposes of the appeal in accordance with paragraph 3.

• (2) In this paragraph “relevant application” means an application under paragraph 1 or 2.

Production of documents

6

• (1) For the purposes of this Schedule, the CMA may by notice require—

• (a) a person to produce to the CMA the documents specified or otherwise identified in the notice;

• (b) any person who carries on a business to supply to the CMA such estimates, forecasts, returns or other information as may be specified or described in the notice in relation to that business.

• (2) The power to require the production of a document, or the supply of any estimate, forecast, return or other information, is a power to require its production or, as the case may be, supply—

• (a) at the time and place specified in the notice, and

• (b) in a legible form.

• (3) No person is to be compelled under this paragraph to produce a document or supply an estimate, forecast, return or other information that the person could not be compelled to produce in civil proceedings in the High Court or Court of Session.

• (4) An authorised member of the CMA may, for the purpose of the exercise of the functions of the CMA, make arrangements for copies to be taken of a document produced or an estimate, forecast, return or other information supplied under this paragraph.

• (5) A notice for the purposes of this paragraph—

• (a) may be issued on the CMA’s behalf by an authorised member of the CMA;

• (b) must include information about the possible consequences of not complying with the notice (as set out in paragraph 10).

Oral hearings

7

• (1) For the purposes of this Schedule an oral hearing may be held, and evidence may be taken on oath—

• (a) by a person considering an application for permission to bring an appeal under paragraph 1,

• (b) by a person considering an application for a direction under paragraph 2, or

• (c) by a group with the function of determining an appeal;

and, for that purpose, such a person or group may administer oaths.

• (2) The CMA may by notice require a person—

• (a) to attend at a time and place specified in the notice, and

• (b) at that time and place, to give evidence to a person or group mentioned in sub-paragraph (1).

• (3) At any oral hearing the person or group conducting the hearing may require—

• (a) the appellant, or the economic regulator, if present at the hearing to give evidence or to make representations or observations, or

• (b) a person attending the hearing as a representative of the appellant or of the economic regulator to make representations or observations.

• (4) A person who gives oral evidence at the hearing may be cross-examined by or on behalf of any party to the appeal.

• (5) If the appellant, the economic regulator, or the economic regulator’s representative is not present at a hearing—

• (a) there is no requirement to give notice to that person under sub-paragraph (2), and

• (b) the person or group conducting the hearing may determine the application or appeal without hearing that person’s evidence, representations or observations.

• (6) No person is to be compelled under this paragraph to give evidence which that person could not be compelled to give in civil proceedings in the High Court or Court of Session.

• (7) Where a person is required under this paragraph to attend at a place more than 10 miles from that person’s place of residence, an authorised member of the CMA must arrange for that person to be paid the necessary expenses of attendance.

• (8) A notice for the purposes of this paragraph may be issued on the CMA’s behalf by an authorised member of the CMA.

Written statements

8

• (1) The CMA may by notice require a person to produce a written statement with respect to a matter specified in the notice to—

• (a) a person who is considering, or is to consider, an application for a direction under paragraph 2, or

• (b) a group with the function of determining an appeal.

• (2) The power to require the production of a written statement includes power—

• (a) to specify the time and place at which it is to be produced, and

• (b) to require it to be verified by a statement of truth, and a statement required to be so verified must be disregarded unless it is so verified.

• (3) No person is to be compelled under this paragraph to produce a written statement with respect to any matter about which that person could not be compelled to give evidence in civil proceedings in the High Court or Court of Session.

• (4) A notice for the purposes of this paragraph may be issued on the CMA’s behalf by an authorised member of the CMA.

Expert advice

9

Where permission to bring an appeal is granted under paragraph 1 the CMA may commission expert advice with respect to any matter raised by a party to that appeal.

Defaults in relation to evidence

10

• (1) If a person (“the defaulter”)—

• (a) fails to comply with a notice issued or other requirement imposed under paragraph 6, 7 or 8,

• (b) in complying with a notice under paragraph 8, makes a statement that is false in any material particular, or

• (c) in providing information verified in accordance with a statement of truth required by appeal rules, provides information that is false in a material particular,

an authorised member of the CMA may certify the failure, or the fact that such a false statement has been made or such false information has been given, to the High Court or the Court of Session.

• (2) The High Court or Court of Session may inquire into a matter certified to it under this paragraph, and if, after having heard—

• (a) any witness against or on behalf of the defaulter, and

• (b) any statement in that defaulter’s defence,

it is satisfied that the defaulter did, without reasonable excuse, fail to comply with the notice or other requirement, or made the false statement, or gave the false information, that court may punish that defaulter as if the person had been guilty of contempt of court.

• (3) Where the High Court or Court of Session has power under this paragraph to punish a body corporate for contempt of court, it may so punish any director or other officer of that body (either instead of or as well as punishing the body).

• (4) A person who wilfully alters, suppresses or destroys a document which that person has been required to produce under paragraph 6 is guilty of an offence and is to be liable—

• (a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);

• (b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);

• (c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum (or both);

• (d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine (or both).

Costs or expenses

11

• (1) A group that determines an appeal must make an order requiring the payment to the CMA of the costs or expenses incurred by the CMA in connection with the appeal.

• (2) An order under sub-paragraph (1) must require those costs or expenses to be paid—

• (a) where the appeal is allowed in full, by the economic regulator;

• (b) where the appeal is dismissed in full, by the appellant;

• (c) where the appeal is partially allowed, by one or more parties in such proportions as the CMA considers appropriate in all the circumstances.

• (3) The group that determines an appeal may also make such order as it thinks fit for requiring a party to the appeal to make payments to another party in respect of costs or expenses reasonably incurred by that other party in connection with the appeal.

• (4) A person who is required by an order under this paragraph to pay a sum to another person must comply with the order before the end of 28 days beginning with the day after the making of the order.

• (5) Sums required to be paid by an order under this paragraph but not paid within the period mentioned in sub-paragraph (4) are to bear interest at such rate as may be determined in accordance with provision contained in the order.

• (6) Any costs or expenses payable by virtue of an order under this paragraph and any interest that has not been paid may be recovered as a civil debt by the person in whose favour that order is made.

Appeal rules

12

• (1) The CMA Board may make rules of procedure regulating the conduct and disposal of appeals under section 20.

• (2) Those rules may include provision supplementing the provisions of this Schedule in relation to any application, notice, hearing, power or requirement for which this Schedule provides, and that provision may, in particular, impose time limits or other restrictions on—

• (a) the taking of evidence at an oral hearing, or

• (b) the making of representations or observations at such a hearing.

• (3) The CMA Board must publish rules made under this paragraph in such manner as it considers appropriate for the purpose of bringing them to the attention of those likely to be affected by them.

• (4) Before making rules under this paragraph, the CMA Board must consult such persons as it considers appropriate.

• (5) Rules under this paragraph may make different provision for different cases.

Interpretation of Schedule

13

• (1) In this Schedule—

• “appeal” means an appeal under section 20;

• “appeal rules” means rules of procedure under paragraph 12;

• “authorised member of the CMA”—in relation to a power exercisable in connection with an appeal in respect of which a group has been constituted by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, means a member of that group who has been authorised by the chair of the CMA to exercise that power;in relation to a power exercisable in connection with an application for permission to bring an appeal, or otherwise in connection with an appeal in respect of which a group has not been so constituted by the chair of the CMA, means—any member of the CMA Board who is also a member of the CMA panel, orany member of the CMA panel authorised by the Secretary of State (whether generally or specifically) to exercise the power in question;

• “CMA Board” and “CMA panel” have the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013;

• “statement of truth”, in relation to the production of a statement or provision of information by a person, means a statement that the person believes the facts stated in the statement or information to be true;

• “working day” means any day other than—Saturday or Sunday;Christmas Day or Good Friday;a day which is a bank holiday in England and Wales or Scotland under the Banking and Financial Dealings Act 1971.

• (2) References in this Schedule to a party to an appeal are references to—

• (a) the appellant, or

• (b) the economic regulator.

Schedule 3

Orders for securing compliance with certain provisions

1

• (1) Where the economic regulator is satisfied that a licence holder is contravening, or is likely to contravene, any relevant condition or requirement, the economic regulator must make an order (a “final order”) containing such provision as appears to the economic regulator to be necessary for the purpose of securing compliance with that condition or requirement (but this sub-paragraph does not apply if the economic regulator is required by sub-paragraph (2) to make a provisional order in respect of the contravention or likely contravention).

• (2) Where it appears to the economic regulator—

• (a) that a licence holder is contravening, or is likely to contravene, any relevant condition or requirement, and

• (b) that it is appropriate to make an order under this sub-paragraph,

the economic regulator must (instead of taking steps towards the making of a final order) make an order (a “provisional order”) containing such provision as appears to the economic regulator to be necessary for the purpose of securing compliance with that condition or requirement.

• (3) In determining for the purposes of sub-paragraph (2)(b) whether it is appropriate to make a provisional order, the economic regulator must have regard, in particular, to the extent to which any person is likely to sustain loss or damage in consequence of anything that is likely to be done (or omitted to be done) in contravention of the relevant condition or requirement before a final order may be made.

• (4) The economic regulator must confirm a provisional order, with or without modifications, if—

• (a) the economic regulator is satisfied that the licence holder is contravening, or is likely to contravene, any relevant condition or requirement, and

• (b) the provision made by the order (with any modifications) is necessary for the purpose of securing compliance with that condition or requirement.

• (5) If a provisional order is not previously confirmed under sub-paragraph (4), it is to cease to have effect at the end of such period (not exceeding three months) as is determined by or under the order.

• (6) Sub-paragraphs (1) to (4) are subject to sub-paragraphs (7) to (9) and paragraph 2.

• (7) The economic regulator—

• (a) must, before making a final order or making or confirming a provisional order, consider whether it would be more appropriate to proceed under the Competition Act 1998 (see section 37);

• (b) must not make a final order, or make or confirm a provisional order, if the economic regulator considers that it would be more appropriate to proceed under that Act.

• (8) The economic regulator may not make a final order or make or confirm a provisional order if the economic regulator is satisfied that the duties imposed on the economic regulator by section 1 preclude the making or, as the case may be, the confirmation of the order.

• (9) The economic regulator is not required to make a final order or make or confirm a provisional order if it is satisfied—

• (a) that the licence holder has agreed to take and is taking all such steps as appear to the economic regulator to be for the time being appropriate for the purpose of securing or facilitating compliance with the condition or requirement in question, or

• (b) that the contraventions were, or the apprehended contraventions are, of a trivial nature.

• (10) Where the economic regulator decides that it would be more appropriate to proceed under the Competition Act 1998 or is satisfied as mentioned in sub-paragraphs (8) and (9), the economic regulator must—

• (a) give notice to the licence holder that the economic regulator has so decided or is so satisfied, and

• (b) publish a copy of the notice in such manner as the economic regulator considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them.

• (11) A final or provisional order—

• (a) must require the licence holder (according to the circumstances of the case) to do, or not to do, such things as are specified in the order or are of a description so specified,

• (b) must take effect at such time as is determined by or under the order, which must be the earliest practicable time, and

• (c) may be revoked at any time by the economic regulator.

• (12) In this Schedule—

• “final order” means an order under sub-paragraph (1);

• “provisional order” means an order under sub-paragraph (2);

• “relevant condition”, in relation to a licence holder, means any condition of any licence (as defined in section 7) held by that person;

• “relevant requirement”, in relation to a licence holder, means any requirement imposed on the licence holder by or under this Part.

Procedural requirements

2

• (1) Before making a final order or confirming a provisional order, the economic regulator must give notice—

• (a) stating that the economic regulator proposes to make or confirm the order and setting out its effect,

• (b) stating—

• (i) the relevant condition or requirement,

• (ii) the acts or omissions which, in the economic regulator’s opinion, constitute or would constitute contraventions of it, and

• (iii) the other facts which, in the economic regulator’s opinion, justify the making or confirmation of the order, and

• (c) specifying the time (which must not be less than 21 days from the date of publication of the notice) within which representations or objections to the proposed order or confirmation of the order may be made,

and must consider any representations or objections which are duly made and not withdrawn.

• (2) A notice under sub-paragraph (1) is given—

• (a) by publishing the notice in such manner as the economic regulator considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them, and

• (b) by sending a copy of the notice, and a copy of the proposed order or of the order proposed to be confirmed, to the licence holder.

• (3) The economic regulator must not make a final order with modifications, or confirm a provisional order with modifications, except with the consent of the licence holder or after complying with the requirements of sub-paragraph (4).

• (4) The requirements are that the economic regulator must—

• (a) give to the licence holder such notice as the economic regulator considers necessary of the economic regulator’s proposal to make or confirm the order with modifications,

• (b) specify the time (which must not be less than 21 days from the date of the service of the notice) within which representations or objections to the proposed modifications may be made, and

• (c) consider any representations or objections which are duly made and not withdrawn.

• (5) Where the economic regulator decides to proceed under the Competition Act 1998 in a case falling within paragraph 1(7)(b), the economic regulator must—

• (a) inform the licence holder concerned of that decision, and

• (b) publish the notice in a manner that the economic regulator thinks appropriate for bringing the notice to the attention of persons likely to be affected by the decision.

• (6) Before revoking a final order or a provisional order which has been confirmed, the economic regulator must give notice—

• (a) stating that the economic regulator proposes to revoke the order and setting out its effect, and

• (b) specifying the time (which must not be less than 28 days) from the date of publication of the notice within which representations or objections to the proposed revocation may be made,

and must consider any representations or objections which are duly made and not withdrawn.

• (7) A notice under sub-paragraph (6) is given—

• (a) by publishing the notice in such manner as the economic regulator considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them, and

• (b) by sending a copy of the notice to the licence holder.

• (8) As soon as practicable after a final order is made or a provisional order is made or confirmed, the economic regulator must—

• (a) serve a copy of the order on the licence holder, and

• (b) publish such a copy in such manner as the economic regulator considers appropriate for the purpose of bringing the order to the attention of persons likely to be affected by it.

Validity and effect of orders

3