Enterprise Act 2002 (c. 40)

(The document as of February, 2008)

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(b) if both of them are subsidiaries of the same body corporate.

(5) "Subsidiary" must be construed in accordance with section 736 of the Companies Act 1985 (c. 6).

Information

224 OFT

(1) The OFT may for any of the purposes mentioned in subsection (2) give notice to any person requiring the person to provide it with the information specified in the notice.

(2) The purposes are--

(a) to enable the OFT to exercise or to consider whether to exercise any function it has under this Part;

(b) to enable a designated enforcer to which section 225 does not apply to consider whether to exercise any function it has under this Part;

(d) to ascertain whether a person has complied with or is complying with an enforcement order, an interim enforcement order or an undertaking given under section 217(9), 218(10) or 219.

225 Other enforcers

(1) This section applies to--

(a) every general enforcer (other than the OFT);

(b) every designated enforcer which is a public body.

(2) An enforcer to which this section applies may for any of the purposes mentioned in subsection (3) give notice to any person requiring the person to provide the enforcer with the information specified in the notice.

(3) The purposes are--

(a) to enable the enforcer to exercise or to consider whether to exercise any function it has under this Part;

(b) to ascertain whether a person has complied with or is complying with an enforcement order or an interim enforcement order made on the application of the enforcer or an undertaking given under section 217(9) or 218(10) (as the case may be) following such an application or an undertaking given to the enforcer under section 219.

226 Notices: procedure

(1) This section applies to a notice given under section 224 or 225.

(2) The notice must--

(a) be in writing;

(b) specify the purpose for which the information is required.

(3) If the purpose is as mentioned in section 224(2)(a), (b) or (c) or 225(3)(a) the notice must specify the function concerned.

(4) A notice may specify the time within which and manner in which it is to be complied with.

(5) A notice may require the production of documents or any description of documents.

(6) An enforcer may take copies of any documents produced in compliance with such a requirement.

(7) A notice may be varied or revoked by a subsequent notice.

(8) But a notice must not require a person to provide any information or produce any document which he would be entitled to refuse to provide or produce--

(a) in proceedings in the High Court on the grounds of legal professional privilege;

(b) in proceedings in the Court of Session on the grounds of confidentiality of communications.

227 Notices: enforcement

(1) If a person fails to comply with a notice given under section 224 or 225 the enforcer who gave the notice may make an application under this section.

(2) If it appears to the court that the person to whom the notice was given has failed to comply with the notice the court may make an order under this section.

(3) An order under this section may require the person to whom the notice was given to do anything the court thinks it is reasonable for him to do for any of the purposes mentioned in section 224 or 225 (as the case may be) to ensure that the notice is complied with.

(4) An order under this section may require the person to meet all the costs or expenses of the application.

(5) If the person is a company or association the court in proceeding under subsection (4) may require any officer of the company or association who is responsible for the failure to meet the costs or expenses.

(6) The court is a court which may make an enforcement order.

(7) In subsection (5) an officer of a company is a person who is a director, manager, secretary or other similar officer of the company.

Miscellaneous

228 Evidence

(1) Proceedings under this Part are civil proceedings for the purposes of--

(a) section 11 of the Civil Evidence Act 1968 (c. 64) (convictions admissible as evidence in civil proceedings);

(b) section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 (c. 70) (corresponding provision in Scotland);

(c) section 7 of the Civil Evidence Act (Northern Ireland) 1971 (c. 36 (N.I.)) (corresponding provision in Northern Ireland).

(2) In proceedings under this Part any finding by a court in civil proceedings that an act or omission mentioned in section 211(2)(b), (c) or (d) or 212(1) has occurred--

(a) is admissible as evidence that the act or omission occurred;

(b) unless the contrary is proved, is sufficient evidence that the act or omission occurred.

(3) But subsection (2) does not apply to any finding--

(a) which has been reversed on appeal;

(b) which has been varied on appeal so as to negative it.

229 Advice and information

(1) As soon as is reasonably practicable after the passing of this Act the OFT must prepare and publish advice and information with a view to--

(a) explaining the provisions of this Part to persons who are likely to be affected by them, and

(b) indicating how the OFT expects such provisions to operate.

(2) The OFT may at any time publish revised or new advice or information.

(3) Advice or information published in pursuance of subsection (1)(b) may include advice or information about the factors which the OFT may take into account in considering how to exercise the functions conferred on it by this Part.

(4) Advice or information published by the OFT under this section is to be published in such form and in such manner as it considers appropriate.

(5) In preparing advice or information under this section the OFT must consult such persons as it thinks are representative of persons affected by this Part.

(6) If any proposed advice or information relates to a matter in respect of which another general enforcer or a designated enforcer may act the persons to be consulted must include that enforcer.

230 Notice to OFT of intended prosecution

(1) This section applies if a local weights and measures authority in England and Wales intends to start proceedings for an offence under an enactment or subordinate legislation specified by the Secretary of State by order for the purposes of this section.

(2) The authority must give the OFT--

(a) notice of its intention to start the proceedings;

(b) a summary of the evidence it intends to lead in respect of the charges.

(3) The authority must not start the proceedings until whichever is the earlier of the following--

(a) the end of the period of 14 days starting with the day on which the authority gives the notice;

(b) the day on which it is notified by the OFT that the OFT has received the notice and summary given under subsection (2).

(4) The authority must also notify the OFT of the outcome of the proceedings after they are finally determined.

(5) But such proceedings are not invalid by reason only of the failure of the authority to comply with this section.

(6) Subordinate legislation has the same meaning as in section 21(1) of the Interpretation Act 1978 (c. 30).

(7) An order under this section must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

231 Notice of convictions and judgments to OFT

(1) This section applies if--

(a) a person is convicted of an offence by or before a court in the United Kingdom, or

(b) a judgment is given against a person by a court in civil proceedings in the United Kingdom.

(2) The court may make arrangements to bring the conviction or judgment to the attention of the OFT if it appears to the court--

(a) having regard to the functions of the OFT under this Part or under the Estate Agents Act 1979 (c. 38) that it is expedient for the conviction or judgment to be brought to the attention of the OFT, and

(b) without such arrangements the conviction or judgment may not be brought to the attention of the OFT.

(3) For the purposes of subsection (2) it is immaterial that the proceedings have been finally disposed of by the court.

(4) Judgment includes an order or decree and references to the giving of the judgment must be construed accordingly.

Interpretation

232 Goods and services

(1) References in this Part to goods and services must be construed in accordance with this section.

(2) Goods include--

(a) buildings and other structures;

(b) ships, aircraft and hovercraft.

(3) The supply of goods includes--

(a) supply by way of sale, lease, hire or hire purchase;

(b) in relation to buildings and other structures, construction of them by one person for another.

(4) Goods or services which are supplied wholly or partly outside the United Kingdom must be taken to be supplied to or for a person in the United Kingdom if they are supplied in accordance with arrangements falling within subsection (5).

(5) Arrangements fall within this subsection if they are made by any means and--

(a) at the time the arrangements are made the person seeking the supply is in the United Kingdom, or

(b) at the time the goods or services are supplied (or ought to be supplied in accordance with the arrangements) the person responsible under the arrangements for effecting the supply is in or has a place of business in the United Kingdom.

233 Person supplying goods

(1) This section has effect for the purpose of references in this Part to a person supplying or seeking to supply goods under--

(a) a hire-purchase agreement;

(b) a credit-sale agreement;

(2) The references include references to a person who conducts any antecedent negotiations relating to the agreement.

(3) The following expressions must be construed in accordance with section 189 of the Consumer Credit Act 1974 (c. 39) --

(a) hire-purchase agreement;

(b) credit-sale agreement;

(d) antecedent negotiations.

234 Supply of services

(1) References in this Part to the supply of services must be construed in accordance with this section.

(2) The supply of services does not include the provision of services under a contract of service or of apprenticeship whether it is express or implied and (if it is express) whether it is oral or in writing.

(3) The supply of services includes--

(a) performing for gain or reward any activity other than the supply of goods;

(b) rendering services to order;

(4) The supply of services includes making arrangements for the use of computer software or for granting access to data stored in any form which is not readily accessible.

(5) The supply of services includes making arrangements by means of a relevant agreement (within the meaning of section 189(2) of the Broadcasting Act 1990 (c. 42)) for sharing the use of telecommunications apparatus.

(6) The supply of services includes permitting or making arrangements to permit the use of land in such circumstances as the Secretary of State specifies by order.

(7) The power to make an order under subsection (6) must be exercised by statutory instrument.

(8) But no such order may be made unless a draft of it has been laid before Parliament and approved by a resolution of each House.

235 Injunctions Directive

In this Part the Injunctions Directive is Directive 98/27/EC of the European Parliament and of the Council on injunctions for the protection of consumers' interests.

Crown

236 Crown

This Part binds the Crown.

Part 9 Information

Restrictions on disclosure

237 General restriction

(1) This section applies to specified information which relates to--

(a) the affairs of an individual;

(b) any business of an undertaking.

(2) Such information must not be disclosed--

(a) during the lifetime of the individual, or

(b) while the undertaking continues in existence,

unless the disclosure is permitted under this Part.

(3) But subsection (2) does not prevent the disclosure of any information if the information has on an earlier occasion been disclosed to the public in circumstances which do not contravene--

(a) that subsection;

(b) any other enactment or rule of law prohibiting or restricting the disclosure of the information.

(4) Nothing in this Part authorises a disclosure of information which contravenes the Data Protection Act 1998 (c. 29).

(5) Nothing in this Part affects the Competition Appeal Tribunal.

(6) This Part (except section 244) does not affect any power or duty to disclose information which exists apart from this Part.

238 Information

(1) Information is specified information if it comes to a public authority in connection with the exercise of any function it has under or by virtue of--

(a) Part 1, 3, 4, 6, 7 or 8;

(b) an enactment specified in Schedule 14;

(2) It is immaterial whether information comes to a public authority before or after the passing of this Act.

(3) Public authority (except in the expression "overseas public authority") must be construed in accordance with section 6 of the Human Rights Act 1998 (c. 42).

(4) In subsection (1) the reference to an enactment includes a reference to an enactment contained in--

(a) an Act of the Scottish Parliament;

(b) Northern Ireland legislation;

(5) The Secretary of State may by order amend Schedule 14.

(6) The power to make an order under subsection (5) includes power to add, vary or remove a reference to any provision of--

(a) an Act of the Scottish Parliament;

(b) Northern Ireland legislation.

(7) An order under this section must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(8) This section applies for the purposes of this Part.

Permitted disclosure

239 Consent

(1) This Part does not prohibit the disclosure by a public authority of information held by it to any other person if it obtains each required consent.

(2) If the information was obtained by the authority from a person who had the information lawfully and the authority knows the identity of that person the consent of that person is required.

(3) If the information relates to the affairs of an individual the consent of the individual is required.

(4) If the information relates to the business of an undertaking the consent of the person for the time being carrying on the business is required.

(5) For the purposes of subsection (4) consent may be given--

(a) in the case of a company by a director, secretary or other officer of the company;

(b) in the case of a partnership by a partner;

(c) in the case of an unincorporated body or association by a person concerned in the management or control of the body or association.

240 Community obligations

This Part does not prohibit the disclosure of information held by a public authority to another person if the disclosure is required for the purpose of a Community obligation.

241 Statutory functions

(1) A public authority which holds information to which section 237 applies may disclose that information for the purpose of facilitating the exercise by the authority of any function it has under or by virtue of this Act or any other enactment.

(2) If information is disclosed under subsection (1) so that it is not made available to the public it must not be further disclosed by a person to whom it is so disclosed other than with the agreement of the public authority for the purpose mentioned in that subsection.

(3) A public authority which holds information to which section 237 applies may disclose that information to any other person for the purpose of facilitating the exercise by that person of any function he has under or by virtue of--

(a) this Act;

(b) an enactment specified in Schedule 15;

(4) Information disclosed under subsection (3) must not be used by the person to whom it is disclosed for any purpose other than a purpose relating to a function mentioned in that subsection.

(5) In subsection (1) the reference to an enactment includes a reference to an enactment contained in--

(a) an Act of the Scottish Parliament;

(b) Northern Ireland legislation;

(6) The Secretary of State may by order amend Schedule 15.

(7) The power to make an order under subsection (6) includes power to add, vary or remove a reference to any provision of--

(a) an Act of the Scottish Parliament;

(b) Northern Ireland legislation.

(8) An order under this section must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

242 Criminal proceedings

(1) A public authority which holds information to which section 237 applies may disclose that information to any person--

(a) in connection with the investigation of any criminal offence in any part of the United Kingdom;

(b) for the purposes of any criminal proceedings there;

(2) Information disclosed under this section must not be used by the person to whom it is disclosed for any purpose other than that for which it is disclosed.

(3) A public authority must not make a disclosure under this section unless it is satisfied that the making of the disclosure is proportionate to what is sought to be achieved by it.

243 Overseas disclosures

(1) A public authority which holds information to which section 237 applies (the discloser) may disclose that information to an overseas public authority for the purpose mentioned in subsection (2).

(2) The purpose is facilitating the exercise by the overseas public authority of any function which it has relating to--

(a) carrying out investigations in connection with the enforcement of any relevant legislation by means of civil proceedings;

(b) bringing civil proceedings for the enforcement of such legislation or the conduct of such proceedings;

(d) bringing criminal proceedings or the conduct of such proceedings;

(e) deciding whether to start or bring to an end such investigations or proceedings.

(3) But subsection (1) does not apply to any of the following--

(a) information which is held by a person who is designated by virtue of section 213(4) as a designated enforcer for the purposes of Part 8;

(b) information which comes to a public authority in connection with an investigation under Part 4, 5 or 6 of the 1973 Act or under section 11 of the Competition Act 1980 (c. 21);

(d) information which comes to a public authority in connection with an investigation under Part 3 or 4 or section 174 of this Act.

(4) The Secretary of State may direct that a disclosure permitted by this section must not be made if he thinks that in connection with any matter in respect of which the disclosure could be made it is more appropriate--

(a) if any investigation is to be carried out, that it is carried out by an authority in the United Kingdom or in another specified country or territory;

(b) if any proceedings are to be brought, that they are brought in a court in the United Kingdom or in another specified country or territory.

(5) The Secretary of State must take such steps as he thinks are appropriate to bring a direction under subsection (4) to the attention of persons likely to be affected by it.

(6) In deciding whether to disclose information under this section a public authority must have regard in particular to the following considerations--

(a) whether the matter in respect of which the disclosure is sought is sufficiently serious to justify making the disclosure;

(b) whether the law of the country or territory to whose authority the disclosure would be made provides appropriate protection against self-incrimination in criminal proceedings;

(c) whether the law of that country or territory provides appropriate protection in relation to the storage and disclosure of personal data;

(d) whether there are arrangements in place for the provision of mutual assistance as between the United Kingdom and that country or territory in relation to the disclosure of information of the kind to which section 237 applies.

(7) Protection is appropriate if it provides protection in relation to the matter in question which corresponds to that so provided in any part of the United Kingdom.

(8) The Secretary of State may by order--

(a) modify the list of considerations in subsection (6);

(b) add to those considerations;

(9) An order under subsection (8) must be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(10) Information disclosed under this section--

(a) may be disclosed subject to the condition that it must not be further disclosed without the agreement of the discloser, and

(b) must not otherwise be used by the overseas public authority to which it is disclosed for any purpose other than that for which it is first disclosed.

(11) An overseas public authority is a person or body in any country or territory outside the United Kingdom which appears to the discloser to exercise functions of a public nature in relation to any of the matters mentioned in paragraphs (a) to (e) of subsection (2).

(12) Relevant legislation is--

(a) this Act, any enactment specified in Schedule 14 and such subordinate legislation as is specified by order for the purposes of section 238(1);

(b) any enactment or subordinate legislation specified in an order under section 211(2);

(d) legislation in any country or territory outside the United Kingdom which appears to the discloser to make provision corresponding to this Act or to any such enactment or subordinate legislation.

244 Specified information: considerations relevant to disclosure

(1) A public authority must have regard to the following considerations before disclosing any specified information (within the meaning of section 238(1)).

(2) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the authority thinks is contrary to the public interest.

(3) The second consideration is the need to exclude from disclosure (so far as practicable)--

(a) commercial information whose disclosure the authority thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or

(b) information relating to the private affairs of an individual whose disclosure the authority thinks might significantly harm the individual's interests.

(4) The third consideration is the extent to which the disclosure of the information mentioned in subsection (3)(a) or (b) is necessary for the purpose for which the authority is permitted to make the disclosure.

Offences

245 Offences

(1) A person commits an offence if he discloses information to which section 237 applies in contravention of section 237(2).

(2) A person commits an offence if he discloses information in contravention of a direction given under section 243(4).

(3) A person commits an offence if he uses information disclosed to him under this Part for a purpose which is not permitted under this Part.

(4) A person who commits an offence under this section is liable--

(a) on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding the statutory maximum or to both;

(b) on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both.

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