Part 2: Competition Chapter 3: Markets Section 139: Duty of CMA to monitor undertakings and orders
This section makes provision regarding the review of remedies by the CMA and for new powers for the CMA or the Secretary of State (as the case may be) to vary remedies accepted or imposed following a market investigation which are subsequently found to have been ineffective.
	Subsection (2) amends section 161(5) of the Enterprise Act 2002 to broaden the Secretary of State’s power to vary or revoke an order. Previously the Secretary of State had the power to vary or revoke an order only where the CMA advised that such variation or revocation was appropriate by reason of a change of circumstances. Section 161(5) is amended so that the Secretary of State has the power to vary or revoke an order following the receipt of advice from the CMA under either 162(3) (in relation to a change in circumstances) or section 162A(8).
	Subsection (3) amends section 162 of the Enterprise Act 2002 to repeal subsections (5) to (7). The heading before the section is also amended to reflect that the duty under the section is thereby limited to require the CMA to monitor the carrying out of remedies accepted or imposed at the end of a market investigation, as opposed to the effectiveness of those remedies.
	Subsection (4) inserts new section 162A of the Enterprise Act 2002 which imposes a separate duty on the CMA to monitor the effectiveness of undertakings and orders accepted or imposed under Part 4 of the Enterprise Act 2002 and makes provision for powers to amend remedies which are found to have been ineffective.
	New sections 162A(1) to (3) re-enact previous section 162, subsections (5) to (7) and require the CMA to keep the effectiveness of remedies under review and report its findings to the Secretary of State when requested to do so, and otherwise from time to time. A copy of that report must be given to the Secretary of State and published.
	The new sections 162A(4) to (6) provide a power for the CMA to vary undertakings accepted or orders imposed by it which are subsequently identified to be ineffective for the purpose of remedying, mitigating or preventing the adverse effect on competition, or any actual or potential detrimental effect on customers resulting from it which was identified in a market investigation.
	New section 162A(4) provides that the new power arises in relation to action taken by the CMA under section 138(2) Enterprise Act 2002, (that is undertakings accepted under section 159 or orders imposed under section 161), in relation to an adverse effect on competition identified in a report published by the CMA under section 136, subsection (1) within the preceding 10 years, where the CMA’s review under subsection 162A, paragraph (1) has concluded that the undertaking or order has been ineffective for the purpose of remedying, mitigating or preventing the adverse effect on competition, or detrimental effect on customers resulting from it. The power is not available where the CMA took action under section 138, subsection (2) less than 2 years ago, or took action under section 162A(5), less than 2 years ago. This provides a "cooling-off" period after undertakings are accepted or orders imposed (whether immediately following a market investigation reference, or after action taken under the new section 162A(5)), and a "long stop" of 10 years on the exercise of the power.
	New section 162A(5) provides that where the power arises, the CMA must take such action as it considers appropriate in relation to the variation or release of undertakings or orders, or replacement by new undertakings or orders.
	New section 162A(6) provides that where the CMA decides to take action under subsection (5), it must do so within 6 months of the date of publishing its decision to do so.
	New sections 162A(7) and (8) set out an obligation for the CMA to provide advice to the Secretary of State in relation to remedies accepted or imposed by the Secretary of State under either section 147 in relation to a restricted public interest reference, or section 147A in relation to a full public interest reference which it concludes have been ineffective for the purposes of remedying, mitigating or preventing the adverse effects they were intended to address.
	New section 162A(7) provides that the new obligation arises in relation to action taken by the Secretary of State under section 147(2) or section 147A(2) of the Enterprise Act 2002, (that is undertakings accepted under section 159 or orders imposed under section 161), in relation to an adverse effect on competition, or effect adverse to the public interest identified in a report prepared and published by the CMA and laid before each House of Parliament by the Secretary of State within the preceding 10 years, where the CMA’s review under subsection 162A(1) has concluded that the undertaking or order has been ineffective for the purpose of remedying, mitigating or preventing the adverse effect it was intended to address. The obligation does not arise where the Secretary of State took action under section 147(2) or section 147A(2) no less than 2 years prior. As under subsections (4) and (5), this provides a "cooling-off" period of 2 years after undertakings are accepted or orders imposed (whether immediately following a reference, or after action taken after advice provided under section 162A(8)), and a "long stop" of 10 years on the obligation to provide advice, and therefore the exercise of the expanded power of the Secretary of State to make variations following the receipt of such advice.
	Subsection (6) of section 138 amends section 169 (certain duties of relevant authorities to consult: Part 4) of the Enterprise Act 2002. Section 169 requires a relevant authority so far as practicable, to consult where it proposes to make a relevant decision if it considers such decisions are likely to have a substantial impact on the interests of any person. Section 169(6) sets out a list of "relevant decisions". Subsection (6) amends the list so this includes decisions by the CMA to take action under section 162A(5).
	Subsection (7) amends section 172 (further publicity requirements) of the Enterprise Act 2002 to include a decision made to take action under the new section 162A(5) power in the list of decisions which the CMA is required to publish. It further inserts a new section 172(11) into the Enterprise Act 2002 which requires the Secretary of State, where they have decided to take action to vary or revoke an order or undertaking following the receipt of advice from the CMA under either section 162(3) or section 162A(8), to lay details of the decision and reasons for it, and the CMA’s advice, before each House of Parliament, after the relevant variation action has been taken.
	Subsection (8) amends section 177 (excisions from reports: Part 4) of the Enterprise Act 2002 to make provision so that the Secretary of State may exclude a matter from the CMA’s advice before laying it before Parliament in accordance with the new section 172(11) obligation, where they consider that inclusion would be inappropriate. Depending on the nature of the public interest consideration, it may be that there is information within the advice that it would not be appropriate for this to be disclosed in a document which will be made public.