Clause 202 provides for the practicalities of giving notices. It sets out the permissible means for the CMA and other enforcers to give a notice: by delivering it to the person; by leaving it at the person’s address; by post; or by email.

Clause 203 empowers the CMA to make rules about procedural and other matters in connection with its direct enforcement functions. This clause expressly permits the CMA to delegate decision making for its direct enforcement functions to its board, panel and/or staff. The clause provides the CMA with a vital tool with which it can establish the technical details of a robust and predictable direct enforcement process that will achieve the stronger enforcement that we need without compromising fair process or certainty for traders.

Clause 204 requires that the CMA’s rules must be publicly consulted on, and given the approval of the Secretary of State through regulations, before coming into force. Public consultation will ensure that the views of all stakeholders, including consumer groups and traders, are adequately considered as rules are prepared. The Secretary of State also has the ongoing power to vary or revoke rules, which will ensure that the wider needs of the economy continue to be reflected in the operation of the direct enforcement regime. This clause ensures that the CMA’s discretion to make technical rules governing its direct enforcement functions is exercised in a balanced way that serves the needs of the economy.

Clause 205 requires the CMA to prepare and publish guidance about its general approach to the carrying out of its direct enforcement functions, and to keep under review the guidance, which it may update from time to time. The CMA is required to publicly consult, and obtain the Secretary of State’s approval, before issuing its first guidance.

Clause 206 provides that, for the purposes of the law of defamation, absolute privilege applies to anything done by the CMA in the exercise of its direct enforcement functions. There are strong precedents for that approach: judicial or tribunal proceedings are protected from defamation. There is also protection from defamation for the CMA’s direct enforcement regime for competition law and its merger and market investigation powers. Those suspected of infringing are not unfairly prejudiced by this clause, which merely reflects the long-standing principle that the exercise of regulatory and judicial functions should not give rise to defamation claims.

Clause 207 formally introduces schedule 16 and its contents within the body of the Bill. Schedule 16 makes numerous minor and consequential amendments to other legislation. This schedule is important to provide for the smooth functioning of the enforcement regimes and to ensure legislative consistency.

Government amendments 62 and 63 add a reference to chapters 3 and 4 of part 3 of the Bill to schedule 14 to the Enterprise Act 2002. These amendments will ensure legislative consistency.

Government Amendment 64 is a consequential amendment. It includes part 4 of the Bill in the list of enactments in respect of which investigatory powers under schedule 5 to the Consumer Rights Act 2015 are conferred.

Clause 208 introduces schedule 17, which makes transitional and saving provision in relation to the court-based and CMA direct enforcement regimes. Schedule 17 provides for the general rule that the new law will apply to conduct that takes place on or after the commencement date of chapters 3 and 4 of part 3 of the Bill. Conversely, as a general rule, the “old law”—that is, part 8 of the Enterprise Act 2002 and related provisions—will continue to apply to conduct that takes place before the commencement date of chapters 3 and 4 in part 3 of the Bill.

Schedule 17 also makes specific rules for continuing conduct that is essentially an act or omission that starts before the new law has commenced but is repeated or continues after the new law’s commencement. In such a scenario, as well as applying to the post-commencement conduct, the new law will apply to the pre-commencement conduct for the purpose of enabling enforcement action under part 3 of the Bill.

However, no requirements or penalties can be imposed on a person for the pre-commencement parts of the continuing conduct, unless such a requirement is already imposable under part 8 of the Enterprise Act 2002. Similarly, the court and the CMA will not be able to use their new powers to impose penalties for breaches of any undertakings given under part 8 of the 2002 Act.

Government amendment 65 specifies that schedule 5 to the Consumer Rights Act 2015, as it has effect before the commencement of the Bill, is a provision related to part 8 of the 2002 Act. Clause 209 sets out how

“supply of goods or digital content” should be interpreted. It makes it clear that for the purposes of this part of the Bill, supplying goods and digital content includes seeking to supply goods and digital content.

Clause 210 sets out how “supply of services” should be interpreted. It provides that the act of supplying or receiving services is not necessary to bring a person within scope of the Bill. Seeking to do so will satisfy references in the Bill to a person who supplies or receives goods or digital content. The clause also clarifies that the supply of services includes the broad category of

“performing for gain or reward any activity other than the supply of goods or digital content”.

That provision helps to ensure that the part 3 enforcement regimes have a sufficiently wide application in relation to services.

Clause 211 provides that accessories to an infringing commercial practice engaged in by a body corporate can be subject to enforcement action. This clause and clause 212 replace section 222 in part 8 of the Enterprise Act 2002. Clause 211 also sets out the conditions that must be satisfied for a person to be an accessory to a past or ongoing commercial practice by a body corporate. Where the infringer is a body corporate, an accessory to the infringing practice is a person who has a special relationship with the infringer and has consented or connived in the commercial practice. Enforcement against accessories is essential to facilitate enforcement against bodies with complex corporate structures and where directors, shareholders or other bodies corporate may direct or influence infringing practices.

Clause 212 defines what is meant by “special relationship” in the context of the preceding clause. A person has a special relationship with a body corporate in two scenarios: where they are a controller of the body corporate; or where they are an officer of the body corporate, such as a director, manager, secretary or similar, or where they purport to act in such a capacity. Taken as a whole, these detailed provisions reflect the starting position that those who either direct or influence the commission of infringing practices should be held liable for them.

Clause 213 defines enhanced consumer measures, or ECMs. The clause provides that there are three types of ECM: first, redress measures, which require payment of compensation or the making of some other form of redress; secondly, compliance measures, which require the taking of steps to prevent or reduce the risk of future infringement; and, thirdly, choice measures, which are intended to facilitate effective consumer choice. The clause establishes a common threshold for when redress measures can be used—namely, where affected consumers have suffered loss as a result of the infringing conduct or where they have been affected in any other way by the conduct. The result is that redress measures are not limited to consumers who have suffered a financial loss.

Clause 214 gives definitions or interpretative guidance for those words and terms. Many of the definitions are self-explanatory, but I draw hon. Members’ attention to the definition of “business”. The definition is non-exhaustive and widely drawn to capture any kind of gain or reward. As under the existing definition of “business” under part 8 of the Enterprise Act 2002, monetary payment is not a prerequisite, and so for example a service carried out in exchange for the consumer’s data or for reputational advantage would also qualify. The Government’s intent is to give part 3 of the Bill a wide scope, so that any infringing commercial practice that harms the collective interests of consumers may be enforced against.

Clause 215 acts as an interpretation aid. It lists certain important or technical words and expressions used in part 3 and refers the reader to the clause that defines or gives guidance on the interpretation of said word or expression.

I hope that the Committee accepts Government amendments 62 to 65, and I commend clauses 202 to 215 and schedules 16 and 17 to the Committee.