Part 7: Records and reports: restrictions

Contents: Section 27(1) of the Act enables the Regulations to disapply a requirement imposed by virtue of section 23(5) (records, Part 4 of these Regulations), section 24 (reports on qualifying defence contracts, Part 5 of these Regulations), section 25 (reports on overheads and forward planning etc, Part 6 of these Regulations) or section 26 (duty to report relevant events, circumstances and information) to the extent that compliance with the requirement would require a person to contravene a relevant restriction (which is defined at section 27(2)).
Part 7 prescribes those requirements which are disapplied to the extent that compliance with the requirement would require a person to contravene a relevant restriction. One of the relevant restrictions is an obligation of confidentiality, and Part 7 makes provision for the SSRO to investigate whether such an obligation has been entered into for genuine commercial reasons, and, if the SSRO finds that it has not been entered into for genuine commercial reasons, for the requirement to continue to apply.

46.

Disapplication of requirements to give information

Power conferred by: Section 27(1)

(1)

Any requirement imposed by—

  1. regulation 21 (examination of relevant records),
  2. Part 5 (reports on qualifying defence contracts),
  3. Part 6 (reports on overheads and forward planning etc), or
  4. section 26 (duty to report relevant events, circumstances and information),
shall not apply to the extent that compliance would require the person (“P”) which is subject to the requirement to contravene a relevant restriction.

(2)

A “relevant restriction” is—

  1. a prohibition or restriction imposed by an enactment; or
  2. an obligation of confidentiality owed by P to another person, unless that other person—
    1. is associated with P; or
    2. gives consent to P's complying with the requirement in question.

47.

Reference to SSRO to investigate obligation of confidentiality

Power conferred by: Section 27(3)

(1)

Where P intends not to comply (either in whole or in part) with a requirement listed in regulation 46(1)(b) to (d) because to do so would contravene a relevant restriction it must notify the Secretary of State.

(2)

A notice under paragraph (1) must be in writing and state—

  1. the requirement with which P intends not to comply; and
  2. the grounds on which P intends not to comply with the requirement.

(3)

If the Secretary of State reasonably suspects that an obligation of confidentiality has been entered into otherwise than for genuine commercial reasons, the Secretary of State may, within 40 working days of receiving the notice, refer the matter to the SSRO for investigation.

SSRO guidance: Determinations

(4)

Upon receipt of a reference under paragraph (3), the SSRO must investigate whether the obligation has been entered into for genuine commercial reasons.

(5)

If the SSRO finds that the obligation was entered into otherwise than for genuine commercial reasons, the requirement specified in the notice continues to apply.

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