Small Business, Enterprise and Employment Bill

House of Lords, 3 March 2015.

Report (1st Day)

Lord Mendelsohn (Labour)

My Lords, I shall speak also to Amendment 2, which is consequential to Amendment 1. I also ask the House to note the register of interests, which lists my interests in small businesses as an owner, worker and occupier and in other connections.

These amendments provide that companies must produce a quarterly statement that lists all the payments to suppliers which have been paid more than 30 days after the suppliers’ agreed payment terms without a formal query having been made. The amendments also confirm that in all those instances interest equalling the Bank of England rate, which is the base rate, plus 8% has been paid to compensate the supplier. Where interest has not yet been paid, it sets out a payment plan to ensure that compensation is promptly paid. The obligation is on the payer to pay. Finally, we are seeking assurances from the relevant auditor that the company is maintaining accurate and honest financial records and statements.

We are pleased that the Government have attempted to address late payments but unconvinced that their current approach is sufficient. The central thrust of government policy is to change the culture of late payments and to believe that that culture change will lead to a significant and speedy change in what has become current business practice. This is achieved principally through the Prompt Payment Code.

We support the measures in the Bill requiring large unlisted companies to publish information about payment performance and practices and to strengthen the Prompt Payment Code, which commits signatories to pay within agreed and clearly defined terms. However, late payment legislation already provides for a maximum 30-day period in which to quibble after receipt. Many shareholders are unsure that the additional legislation will achieve any real change. Small companies fear that they will be pressured into not levelling their potential claims or will be squeezed in other ways. One reason why we suggested in Committee that dates be introduced—and I see that the Government have responded to that in the Prompt Payment Code, which is to be welcomed—is that we already have a statement of dates. We were also encouraged that the Minister, at our urging, wrote to the FTSE 350 companies to suggest that they become members of the Prompt Payment Code. Our concern was, as expressed in the letter, that this was really about reputation, corporate social responsibility and obligations, which are all important in dealing with culture changes, but insufficient. This approach is not enough.

Our approach is to ensure that payments are made by placing the onus on the person paying and not the person chasing; it is not fair for the smaller supplier to be coerced or pressured or even to have to face potential consequences to make sure that they are paid on time. We asked for our alternative approach to be considered in the consultations on the duty to report and enforcement, which we believe were drawn too narrowly. As Henry Ford always said, if he had asked his customers what they wanted, he would have designed a faster horse. We do not need a faster horse; we need to invent something that is relevant, like the motor car, which deals with the problem.

Why do we believe that an alternative approach is essential? There are a number of reasons. The first is the sheer scale of the problem. In 2008, there was £18.6 billion outstanding in late payments; in 2014, according to many reports, the number had grown to £46.1 billion. In Committee, we had a number of

estimates in excess of £50 billion and, today, estimates say that we are moving very close to going through the £60 billion mark. That is an extraordinary growth. Since the 2011 EU directive on late payments, which became law in this country in 2013, other reports that we have received suggest that the number has got even higher, even quicker. So these large rises have taken place even during the time when we have said that we are dealing with the problem. I fear that the large problem of late payments will not be addressed by the Prompt Payment Code, which has been co-signed by 1,700 firms. It needs a much more fundamental attack, and we argue that contracts should be void if they specify more than 60 days in the terms.

Although the Prompt Payment Code is of course a good thing, there are considerable limits to it; so the measures to strengthen it are positive. However, policy is too reliant on it. As I said, the code has approximately 1,700 signatories, made up of companies and public authorities. The number of large businesses—defined as those with more than 250 employees—stands at 7,000, so 1,700 signatories sounds like a jolly good number. However, companies employing between 50 and 250 employees add another 32,000, while those employing between 10 and 49 add another 195,000, with micro-businesses increasing the number by more than 5 million. Micro-businesses, which employ fewer than nine people, are included in this code. Out of a universe that is now in excess of 5 million companies, we have 1,700 signatories. I do not believe that this will ever grow sufficiently large to change the culture. Given that the code also includes public authorities, it is very hard to see how it can gain that scale.

Moreover, the stated intention of the code is to ensure that it remains a gold standard. If it is a standard for some to aspire to, that inherently means that others will not meet the standard and will therefore be excluded—and the culture will not inherently be transferred to them. To be perfectly honest, for those companies that see it as a badge of honour, you are dealing with suppliers that may think that the badge of honour is an important consideration; but I suspect that whether they have a serviceable need that a business addresses, or a route to market, is probably far more significant.

It is also the case that some of the signatories are part of the problem. There have been significant news reports about a number of the people currently on the code in terms of their extended payments and late payments. The changes to the payment code which have been suggested—reducing the number of days and having the means to remove people from the code—have certainly not yet been adopted by all the members of the code. They are being written to, but all the responses have not come through.

I therefore suggest that the code is limited not only in its design but even in addressing its own recommendations on how to change the culture. I think I have been diligent in trying to make sure that I got to know as much as possible about the Prompt Payment Code. I looked at its website. As I say, we support the Prompt Payment Code. I appreciate that it

identifies that co-signatories undertake to pay suppliers on time, give clear guidance to suppliers and encourage good practice.

I looked at those things. I looked at the clear guidance to suppliers because I thought that that was very relevant. It says that you must provide,

“suppliers with clear and easily accessible guidance on payment procedures”,

and that you may click to see the “Treating Suppliers Fairly” guide. Naturally, I clicked to see the guide. When I did, I was taken to the site of the organisation that runs the code, the Chartered Institute of Credit Management, and it says:

“We can’t seem to find the relevant information, you may be able to find the information you require using the menu above”.

I could not find it in the menu. I put it into the search mechanism and came back with two results:

“Business leaders believe late payment can be overcome”;

and,

“Credit managers urge Sir Alan to act promptly on late payments”.

That related to a statement made by my noble friend Lord Sugar in 2009, in his previous job as the enterprise champion, to address late payments. I do not think I need to say any more about the way in which this has been adopted.

We are relying on a code. Other countries in Europe have relied on legislation and have had much more success. We have a problem in that there is no evidence that the code will be able to address the ever increasing sophistication of the extended payment problems and the mechanisms used by companies. It is insufficient in its own right.

Finally, I shall give another reason why I think it insufficient to rely on a code. We all agree that growth in the economy is essential, that supporting small businesses is essential and that cash flow and the velocity of money in the economy are very important. As a measure to help trigger a more dynamic UK domestic economy, this is essential. Overseas suppliers who rely on letters of credit with guaranteed bank payments are better served than UK businesses as matters currently stand.

It was reported at the weekend that the Groceries Code Adjudicator was in receipt of complaints that Lidl has now extended its payment terms to 120 days. It was reported that that was in great contrast to the 30 days that it uses to pay in its home market of Germany. It is time to get serious in tackling late payments and in not placing UK small business behind others. We accept and support the code, but it is insufficient. We need to move much more in establishing that the payers need to pay on time and that late payments need to come down, since these take place on an enormous scale and are a huge drag on our economy. I beg to move.

Lord Lea of Crondall (Labour)

My Lords, I support this amendment and will take the illustration of the insurance industry. There are special features connected with the insurance industry. Hence, it has its own legislation. However, the Minister dealing with what was then the Insurance Bill, the noble Lord, Lord

Newby, indicated that other steps and avenues would be pursued to see that the insurance industry could be brought within the scope of some statutory obligations on late payment.

The history of this, briefly, in the insurance industry is as follows. Lloyds of London has unilaterally been able to veto a strong recommendation from the Law Commission which was accepted by everybody else in the industry, including all the main insurance companies, that there be such a statutory duty in that sector so it could be brought into line.

Evidence from other sectors, including overseas parts of the industry, shows that the present arrangement, whereby London has no such guarantees against late payment, is doing serious reputational damage to that major industry. However, the rubric has it that one actor in that industry, namely Lloyds of London, which represents maybe 25% of the industry, which we all agree is not insignificant, can cast such a veto in its own interests against public policy, government legislation, simply by stating—this is the astonishing point—that it finds such a clause, recommended strongly and unanimously by the Law Commission, “controversial”. In other words, to deem a clause such as that to be controversial means that the Bill would fall.

Therefore, in Committee, some noble Lords who supported the amendment generally did not want to take that risk. However, the Minister in that context, in seeking the withdrawal of the amendment, undertook to pursue the issue on the basis that it was not going to be left there and that other means—other legislation—would be explored and pursued. This amendment is a good exemplar of how that commitment should be honoured.

Baroness Harding of Winscombe (Conservative)

My Lords, I rise to speak against these amendments. I must first declare an interest because I run a large public company, TalkTalk, which would clearly be subject to this legislation.

I agree with the Government’s prompt payment proposals, and it is worth us pausing to recognise how robust they are and how tough a reporting requirement this will be. To report quarterly in detail on your payment performance and policies is more detailed than the report I have to make on the financial performance of my company. I have an obligation to report in full on a half-yearly basis. I would not underestimate the power of transparency—of having to report this publicly and clearly. We see this in a whole range of compliance areas in business. Having to explain publicly to your customers as much as to your suppliers what you are doing acts as a strong brake on bad behaviour and is the beginning of the culture change in payment policy that I am sure that all sides of the House want to see.

I am not persuaded, however, by the Opposition’s amendments. There is a real danger that we try to overcomplicate and second-guess how businesses will wish to negotiate with each other. There are also a lot of unintended consequences—I am sure that they are genuinely unintended—in the Opposition’s amendments that will simply lead businesses to avoid the provisions and will create the very problem that they are seeking to avoid, which is the negotiation of much longer

payment terms that meet all the requirements of a much more tightly defined code but actually do not enable small businesses to be paid faster.

It is therefore important that we support the Bill and the improvement in publicising and shining a light on poor payment policies and performance. But we in this House must not think that we can create culture change by specifying in ever more precise detail what businesses can and cannot do. That would have the opposite effect on the culture that we are trying to change.

Lord Mitchell (Labour)

My Lords, I start by coming back at what the noble Baroness, Lady Harding, has just mentioned. I know that she runs an exceptionally good company; I do not know what TalkTalk’s payment terms are, but I bet that they are good and that it pays on time.

However, there are many people out there, including many large companies, whose behaviour is quite disgusting. We have seen in the past few months egregious examples of big customers stuffing their suppliers. I will give a few examples. Diageo, the owner of Guinness and Johnny Walker, recently informed its suppliers that it would extend its payment terms from 60 to 90 days. AB InBev, owner of Budweiser, Stella and Boddingtons, has extended its terms of payment to 120 days. Heinz has doubled its payment terms—I wanted to say from Heinz 57 but it is not quite that—from 45 to 97 days, and the list goes on to include Monsoon, GlaxoSmithKline and Debenhams, to name just a few more. It is a common theme. These companies put the squeeze on their suppliers for two reasons. First, they want to accumulate as much cash as they can. That is understandable as they want to boost their balance sheets. More perniciously, they do it simply because they can. It is bullying.

Many of us have run small businesses and we know all too well the perils of cash flow management. We know what it is like to sweat while waiting for our big customer to make the payment. That is what keeps us up at night and what this amendment aims to rectify. According to the Institute of Directors, two-thirds of its members with fewer than 250 employees suffer from late payments. It is estimated that payments delayed over and above the contractual terms total—well, in my notes I have £40 billion but my noble friend Lord Mendelsohn says £60 billion. Whatever it is, it is a very large number. It is not just the supplier who suffers; it goes to the supplier’s own suppliers and to all the families who work with these companies that are now at risk. It permeates everything.

In this amendment we seek to introduce a radical change. Where a late payment occurs, an automatic interest rate penalty will kick in at the Bank of England base rate plus 8%. I can promise that if there is an outstanding payment with interest rates clicking up at 10% or 11%, it will gain everybody’s attention and will be paid.

I should like to make one more comment. Later this afternoon we are going to be addressing the issue of government schemes to improve finance for small business. I have no doubt that the best way to improve SME finances quickly and effectively would be to improve cash flows.

Lord Stoneham of Droxford (Liberal Democrat)

My Lords, I support the thinking of both the previous speakers because there is a problem with late payment. I know that the noble Lord, Lord Mitchell, has a lot of business experience of this, particularly working with small businesses—and the noble Baroness, Lady Harding, also has a lot of experience in the business world. The argument here is really that the Bill is a move forward. It is trying to open up the issue of what terms companies are offering and attempting to make sure that they are properly reported.

However, the Labour amendment is unduly prescriptive and there will be a lot of unintended consequences if companies are forced down from their current credit terms of 60 or 90 days to 30 days. There would be the bureaucracy of quarterly payments and quarterly reporting and the information that would have to be provided on what is in those quarterly reports. We have to be clear that this is a very prescriptive amendment, which to be properly considered would need a great deal of consultation with business, particularly small businesses, on its consequences—because they could be quite dramatic.

I suspect that first there would be a big jump in the number of invoices being queried; that would be bound to happen. This would inevitably damage the legislation’s attempt to make companies more accountable and for the first time properly report publicly what they are doing—instead of having the information just drift out as a result of complaints from suppliers. People will be able to see what companies are doing, and the companies can be held accountable. It seems that that is the first stage. If there are consequences we want to look at, it would be better to deal with them gradually, so that we get genuine improvement on payment terms, rather than setting up a very bureaucratic and prescriptive solution that could damage a lot of companies and even deter business.

Lord Cope of Berkeley (Conservative)

My Lords, I also have doubts about the terms of the amendment, both for the reasons that my noble friend has just given and because we have to consider who is laying down the payment terms. The amendment refers to the supplier’s payment terms as though the supplier—the small business that we are thinking of—is able to say that it wants payment within a certain time. However, in the instances that the noble Lord, Lord Mitchell, gave just now of large companies extending the terms in which they make payments, it is of course the customer who lays down the terms. If you do not like those terms—the extension to a larger number of days—then you do not supply. A big company in a powerful position in its market will be able to lay down its terms and that will drive a coach and horses through the amendment. Therefore, I do not think that this is the solution.

I do not for a moment say that there is no problem—of course there is. I entirely accept what was said earlier and in Committee about the difficulties of late payment, and these are not new difficulties; we have had them for years. I think that the amendment to the existing law proposed in the Bill is a step forward. I would like to see that come into law rather than the more prescriptive version suggested by the Opposition.

Baroness Neville-Rolfe (Conservative)

My Lords, I thank the noble Lord, Lord Mendelsohn, for his amendments on the important matter of late payment and for the general support that he has given to the Bill’s provisions. I also thank him for his diligence and interest. I am grateful, too, to the noble Lord, Lord Lea, to my noble friend Lady Harding, and the noble Lord, Lord Mitchell, with their business experience, to my noble friend Lord Cope and to my noble friend Lord Stoneham for his perceptive and practical comments about the risk of unintended consequences—gleaned, I think, from his very careful study and attendance every day in Committee.

Before turning to the amendments, I want to reassure the House about the Government’s unwavering commitment to tackling late payment. The measures we are taking forward in the Bill form part of a comprehensive package of measures to bring an end to the UK’s late payment culture. The Government are absolutely clear that large companies should lead by example and pay their small suppliers within 30 days. We need to shake up corporate culture to drive home our message—that it is not fair and not right to pay your suppliers late or use unfair payment terms.

That is why we are taking action in the Bill to require the UK’s larger companies to report on their payment practices, and we have already consulted on the detail of what this might look like. We proposed that companies report quarterly against a comprehensive set of metrics, including the proportion of invoices paid beyond 30, 60, 90 and 120 days and the average time taken overall to pay invoices. Therefore, there is a real incentive to show that you pay promptly and on time, and an opportunity for companies to explain if payment is late. It is a strong brake on bad behaviour, as my noble friend Lady Harding suggested.

This reporting will be rigorously monitored, with a company director required to sign it off, and breaches will be sanctionable by a criminal offence. Importantly, we will require companies to make this information public, so there will also be the power of transparency. The new reporting requirements will mean that poor payment practices are exposed, and it is this transparency that will drive a fundamental change in corporate behaviour. I also highlight that on Monday the Government published a summary of responses to our consultation. While the Government are still considering the evidence received, I am pleased that a clear majority of stakeholders agreed with our overall approach, although there were concerns about some aspects, including our very rigorous reporting requirements.

Last week, my right honourable friend Matthew Hancock MP also announced significant changes to the Prompt Payment Code. I know that the noble Lord, Lord Mendelsohn, and others have encouraged us to strengthen this, and the code will now promote 30-day payment terms as standard and enforce maximum 60-day terms. The change will be rigorously enforced by the new code compliance board, which will include people from business representative bodies who will investigate challenges made against signatories to the code by their suppliers. The compliance board will remove signatories found to be in breach of the code’s

principles and standards. This will shine further light on poor payment practices. The Government are also seeking views on how to provide business representatives bodies with additional legal powers to challenge grossly unfair contractual terms or practices, which will build on existing protections for small businesses.

The noble Lord, Lord Mendelsohn, highlighted the issue of Lidl. The Government are clear that large companies including Lidl, which is a leading German supermarket chain, should lead by example and pay their small suppliers within 30 days. It is neither fair nor right to use unduly long payment terms. As I said earlier, we are already taking action in the Bill to require such companies to report on their payment practices through very tough requirements, including the detailed metrics that I have already described.

The noble Lord, Lord Lea, talked about the situation in the insurance industry and I will certainly look at the points that he raised. The noble Lord, Lord Mitchell, gave us a list of companies reported to be squeezing suppliers. This is further evidence, frankly, of the need for change and the action we are taking in this Bill and in the regulations made under it. He mentioned Diageo, which is already being investigated by the Prompt Payment Code administrator. The Government are being tough for small business, and we will take the necessary steps to stamp out poor practices.

I turn to the specific amendments. I recognise the strength of feeling that has been expressed and I am pleased to say I have been persuaded by some of the noble Lord’s arguments. I can confirm today that we will table amendments at Third Reading to insert the word “performance” into Clause 3, which was a concern that the noble Lord pressed in Committee to which we have listened. I also commit that we will use this power to require companies to report on the amount of interest owed on late payment because we agree that this will help to exert the necessary pressure on companies to make sure that their suppliers are fairly compensated. We will make express reference in the Bill to interest owed and paid. We will introduce amendments on both these points at Third Reading.

I now turn to the proposal to require companies to prepare a compensation plan on each instance that they fail to pay late payment interest. I am afraid that, on this point, I continue to believe that introducing this measure would lead to unintended and undesirable consequences. For example, businesses could lengthen their payment terms to avoid accidently having to pay out. If they do get caught by the requirement, there could be debates about whether payment plans provided cover for delaying tactics. While we are committed to tackling late payment, we are equally committed to trying to incentivise prompt payment with as little bureaucracy as possible. The discussions that we had with stakeholders indicated support for this view. These discussions reinforced the findings from our 2012 consultation that introducing further penalties would not tackle the problem of late payment. Instead, respondents called for greater transparency on payment practices, which this Bill delivers.

The noble Lord gave us some interesting feedback on the website. He will be glad to hear that BIS has just awarded the Chartered Institute of Credit

Management £50,000 to improve that very website, so he is on the money. The improved website will go live later this month and I can only thank him for identifying this issue and sharing it with the House. I shall take it away and ensure that it is addressed urgently.

It is clear that the noble Lord and I are united in our mission to tackle late payment, but we must make sure that any interventions will work to the benefit of the very small businesses that we seek to protect.

I turn to the question of ensuring the report’s accuracy. Our consultation proposed that the reporting frequency be quarterly, as companies’ ability to pay or practices in paying trade creditors can change quickly. Therefore, we are not proposing that companies report in their annual report. Instead, we propose that the report should be signed off by the company’s director, with breaches sanctionable by criminal penalties, using the power in the Bill to mandate reporting. The summary of responses we have published shows broad support for this proposal. Respondents clearly feel that these measures would suffice to ensure the report’s accuracy and I therefore do not agree that we should require further assurances from an auditor.

I am grateful to noble Lords for their significant contribution to the scrutiny of these provisions. We have considered very carefully the proposals set out in the amendment and I hope that, with my commitment to bring back some changes at Third Reading, the noble Lord will feel able to withdraw the amendment.

Lord Mendelsohn (Labour)

I thank the Minister for her extensive response to these amendments. I shall go through a few issues and then come back to them. In general, I thank the Minister for her very constructive and open approach throughout to these issues and to making improvements to the Bill. We share a great interest in and concern for helping to develop small businesses and doing what we can for them.

I am very grateful to the noble Baroness, Lady Harding. I had the great pleasure of talking about her, and our close connection, when she made her maiden speech. She is a remarkable business figure and I will address a number of the issues that she raised. The criticism has been made that we are trying to change culture through legislation. That is not our approach; it is the Government’s. The noble Baroness talked about the limitations of this. I have no doubt there are benefits to it, which I support, but I do not find myself on the same side of the argument as her on that one. We are adding duties and obligations because we have come to the conclusion that that is the way to address the size and scale of the problem. It is certainly true that legislation rarely changes the heart but, as the phrase goes, it can restrain the heartless. There are times when you have to use legislation as a lever to make things happen. I agree that the reporting requirements are an obligation, but they are a necessary one, and I hope that her support for them is heard by many other people in business.

I do not think that the issue of how customers and suppliers contract with each other comes up until the next set of amendments. They are slightly more complex so I will address that issue then. I want to say to the

noble Baroness that I have become a bit of a junkie on the website. I am grateful that it is to get a £50,000 refresh, and perhaps even an app. Having looked through the Prompt Payment Code, I noticed that TalkTalk is not a signatory to it. We are talking about changing the culture, but if someone sitting in this House does not yet have a sense of how that culture should change, it is an issue when we come to address business at large. It is my feeling that culture change is insufficient in and of itself.

The noble Lord, Lord Stoneham, talked about being overly prescriptive, and he raised those concerns in Committee. I listened carefully to what he said and I have done my research on it. I felt at the time that the point was insufficient because of the scale of the problem and the way it is growing. When we look at how other countries with far less significant economic problems, or even problems in how to deal with this issue, we can see that they are the ones that have been infinitely more prescriptive. We can look at Ireland, while legislation in Germany passed just last year shows how that country has moved forward. It is only by being more prescriptive that we get clarity and avoid unintended consequences, which are more likely to arise in circumstances where a variety of alternative payment terms or arrangements are allowed to be put in place.

The noble Lord, Lord Cope, raised similar issues in Committee. Again, I listened carefully to him and I decided to take my cue from the GOV.UK website on the question of how we look at the dates. The website explains when a payment becomes late. It states:

“If you haven’t already agreed when the money will be paid, the law says the payment is late after 30 days for public authorities and business transactions after either: the customer gets the invoice”,

or,

“you deliver the goods or provide the service”.

That is how we reach the point where this can be tested.

I am grateful to the Minister and we are encouraged by some of the changes that have been made. We feel that the areas of performance and being able to identify the interest payments are useful steps. However, I am bound to say that my noble friend Lord Mitchell made a powerful speech, going through yet again those companies that have good records in a variety of areas but allow themselves to do what has become far too natural and far too easy in the context of the UK. We stand out from others because we are not as strong as we should be on dealing with prompt payment and people who get into late payments. The prize is there. We are talking about close to £60 billion, so putting even a small proportion of that sum into the economy will have a huge accelerating impact. We on this side think that being on the side of small businesses means getting more money racing through the economy. The need to increase employment prospects requires us to press the amendments and push to see whether we can get the economy moving by getting these late payments to small businesses sorted out much sooner than would otherwise be the case. Therefore, I wish to test the opinion of the House.

Lord Mendelsohn (Labour)

My Lords, I will also speak to Amendment 4. Our amendments deal with an entirely connected element of late payment and other sorts of payment practices. Amendment 3 addresses concerns about companies exceeding payment agreements, discounting for prompt payment and retrospective discounting. This proposed new clause gives the Secretary of State new regulation-making powers to impose,

“a limit on the number of days after receipt of a supplier’s invoice a company can seek to challenge that invoice”,

and to prohibit companies from,

“seeking to change the payment terms of a supplier company unilaterally”,

or requiring supplier companies to pay to join that company’s list of suppliers or remain on it. Amendment 3 takes forward some fairly straightforward measures on what I would describe as abuses but on which I think there is a fair degree of consensus. Amendment 4 is perhaps slightly more exotic. It makes provision for the Secretary of State to,

“make regulations prohibiting the practice of a company seeking to reverse fixed payments and apply retrospective rebates and charges to a supplier company”.

Companies looking to extend their payment terms still could be on the right side of a prompt payment code if they use a variety of other practices to provide extended payment and credit terms to themselves. They can also add unfair terms using the asymmetry of power and information. Across much of the rest of the Bill the Government’s proposals have done a somewhat reasonable job to start addressing that issue, which afflicts small businesses, but companies can still change terms unfairly or even force unfair terms on weaker companies. “Pay to stay” must be the most egregious such practice but it is certainly not the only one. A weak approach to late payments coupled with no action on unfair practices or terms will mean that

small businesses are unlikely to gain much from this Bill, which will seriously affect their cash flow or make their ability to fund and finance themselves not as strong as we really need with our current economy.

I have also witnessed at first hand the inventiveness of large companies to obfuscate and stop meeting their obligations on other payments. I have even had the misfortune with one particularly large supplier of meeting someone called “supplier disputes resolution”; this really means that they are a lawyer from the legal team, there to cause more problems rather than resolve anything.

I must thank the many small businesses and their advisers and representatives who are providing us with information on this. They have told us strongly, chiming with my own experience, of just some of the wariness that they feel is associated with raising the problems of poor practices of other companies, and of the nature of some of the pressures that they are under. These problems could include larger companies withholding payments, imposing fines or even creating retrospective payments or charges.

One has only to talk to small businesses for a short period to understand the iconic nature of the Premier Foods controversy, where it was forcing suppliers to pay to stay on its supplier list, which is perhaps one of the more appalling practices. Others force businesses to pay to go on the supplier list, which distorts competition and tries to use market power against smaller companies. Our measures will ensure that the problems of late payments are not transferred to other practices. The amendments also have the benefit of addressing legitimately some of the terrible and detrimental practices that small businesses suffer from large companies which exceed their agreements and act retrospectively, leading to tremendously bad consequences for other companies.

Withholding payments or arranging debits on control invoices can be caused by disputes or by issues about quality. These should rightly be raised prior to any unilateral fine, debit, discount or withholding of payment, and swiftly resolved between the parties. We agree with the Government that when there are disputes the most important thing is to resolve them as swiftly as possible. These amendments give the Secretary of State new regulation-making powers to address these issues.

There are cases where businesses retrospectively, at the end of the year, impose cuts to meet the previously agreed supplier prices to meet their margins, with no regard for the established contract. This is levelled against many plcs. Recently, we saw Debenhams unilaterally conducting a 2.5% discount on supplier prices as a last-minute attempt to boost its failing profit margins. Sending retrospective debit notes is on the basis of investments made to provide benefits to suppliers—very supposed benefits indeed. This is not to say that they do not make for a plausible argument; but the manner in which these can be applied and that they rarely have any performance-reporting, a direct correlation to those benefits or even requirement of proof that they were spent on this show the ways in which companies also impose egregious practices.

The contract terms, conditions and price negotiations are really up to the parties. Commercial terms, such as marketing discounts, early-payment discounts, stock write-downs, rebates and charging for central distribution costs appear to affect more the long-term performance of the companies operating them, and distort their price negotiations. But those are within the gift of companies if they decide to use those sorts of practices and the matter is clearly up to them. These terms can be entered into by parties, but it should not be possible to impose them retrospectively or coercively by means of threats or market power.

I am looking forward to the Minister’s response to these amendments. In Committee, the Government understood some of the concerns and they have not been deaf to the many stories that they have heard about the application of practices of this sort and the problems they create. They also seemed to acknowledge that their initial responses were not sufficient. In Committee, their view was that in practice requests for changes of payment terms are not imposed unilaterally and that they are made with the agreement of both parties, even if the smaller party may feel that it has no option other than to agree. We patently know that that is not the case. We have seen many examples of where changes have been made unilaterally.

The late payment directive is explicit that unfair contractual terms and practices are not acceptable. I spent some time looking at the late payment directive, which I was assured had significant UK participation in its drafting. I have to confess that it is rather good. It talks about the way in which these sorts of changes are not acceptable and should not be acceptable and says that, even in circumstances when they are imposed on the smaller party, they should not be.

The Government argue that concern about doing something about “pay to stay” may have the unintended consequence of stopping supplier lists, which may be a good thing. We agree with them. This is not meant to stop supplier lists. It is important for companies to be able to manage supplier lists. The problem is the terms on which people join those lists. We suggest amendments which give the Secretary of State the ability to make those changes. We are not being prescriptive. We are broad in defining what they can address. It remains for future consultations, regulations and other things to implement them. What we are trying to get at is clear. It is also clear that we are doing something, which is not too prescriptive. I know that some noble Lords have concerns about that. In many ways we have taken, perhaps for the first time, the argument that the Government presented in Committee that “may” cannot become “must”—so rather than “must” we have said “may”. It is important for the Government to understand that these are some of the issues they should address. Given the scale and size of the problem, we can identify late payments, as opposed to poor and extended payment terms, as somewhere where we need action to help small businesses. I beg to move.

Lord Mitchell (Labour)

My Lords, “pay to stay” and retrospective terms are examples of thuggish behaviour which large companies use to beat up their suppliers. I listened to what the noble Lord, Lord Cope, said on the previous amendment about suppliers having a

choice about whether they want to supply large companies. I do not think it is quite that simple. The companies we are talking about—major supermarkets and the like—have tremendous power, and suppliers have no option but to supply them, so this is not a contest of equals but of David and Goliath, and in this case Goliath usually wins.

As my noble friend Lord Mendelsohn said, just before Christmas Premier Foods, the maker of Mr Kipling cakes and Hovis bread, told suppliers that they could lose their contracts unless they made cash payments to remain suppliers. That time, it misjudged the mood. The press took up against it, and very quickly it backed down. Perhaps that is a good example of shaming some of these companies about what they do. However, the practice still exists and our amendment gives the Secretary of State power to prohibit a company requiring a supplier to make a payment in order to join that company’s list of suppliers.

Even worse is the ability of companies to alter the terms of payments unilaterally. I have seen it personally in a family business and with suppliers to big retailers. A supplier fulfils all the terms of the contract and he waits and waits for a payment that never comes. Eventually the company contacts the supplier and says that payment could be made in a couple of days if only the supplier could accept a hefty discount. This is odious behaviour and in this amendment we seek to contain it.

Baroness Neville-Rolfe (Conservative)

I thank noble Lords for tabling these amendments on unfair practices and the noble Lord, Lord Mendelsohn, for sharing his experience, including points of agreement. Unfair payment terms and practices hit small businesses the hardest and are simply unacceptable. I consequently have considerable sympathy with the intention behind these amendments.

Our intention is to drive a fundamental shift in payment culture—a paradigm shift in UK corporate behaviour to stamp out poor payment practices. Obviously, the key question is how we achieve this. One option is to seek to tackle each and every harmful practice as we spot it, but I suggest that this is futile. As the previous debate suggested, if businesses want to exert undue pressure on their suppliers, they are likely to find ways to do so. Because banning individual practices only tackles the symptoms, it will not drive a change in underlying corporate culture. We are doing something different and using a new transparency to drive change in corporate behaviour. The power of the new reporting requirement should not be dismissed. It will subject companies’ payment practices to full public scrutiny, thereby allowing poorer-performing companies to be named and shamed. In so doing, it will exert significant pressure on companies to move away from unfair practices.

The noble Lord, Lord Mendelsohn, mentioned the case of Premier Foods, which I believe shows that transparency can successfully lead to swift change in practices. Following public scrutiny of its “pay to stay” practice, which the noble Lord, Lord Mendelsohn, rightly described as egregious, Premier Foods moved quickly to simplify its controversial supplier list scheme. The Government are clear that large companies should

not be using their economic power to place further strains on already hard-pressed small businesses. The Secretary of State has already asked the Competition and Markets Authority to consider the available evidence on “pay to stay” clauses, which I hope will be welcome to the noble Lords, Lord Mendelsohn and Lord Mitchell. The new reporting requirement will also elevate poor payment practices to become a boardroom issue. We have proposed that a company director signs off the report to ensure it is taken seriously at the very top.

We have tested this proposition with stakeholders, and most have shown little appetite for greater regulation on specific practices. Businesses in the UK value the freedom of contract that has been built up over hundreds of years but they strongly agree with the Government that increased transparency will help us to take significant steps to address the current imbalance in economic power which noble Lords have described so graphically. That is why we must focus our efforts on getting transparency right by putting in place a comprehensive, robust reporting requirement for all the UK’s larger companies. Clause 3 is already drafted sufficiently widely to allow the Government to require reporting on the subject of these amendments through secondary legislation.

I turn briefly to the detail of the amendments. Late payment legislation already sets a maximum 30-day period to quibble after the receipt of relevant goods and services. We sought views on this issue during our recent consultation. There continues to be little appetite for legislation. Our stakeholders tell us that they are reluctant to use current avenues to challenge due to fears of damaging relations with customers—a point which has already been made. We also heard concerns that the change, as proposed, could result in unintended consequences, with companies starting to dispute more invoices as a means of gaining time to review them. Our stakeholders have instead called for increased transparency on dispute resolution processes. The Government will therefore require companies to report on these as part of the mandatory reporting requirement.

We also consulted on unilateral changes to payment terms. As a matter of contract law, unilateral changes cannot be imposed on a contracting party after the contract has been agreed. However, in reality, smaller companies, as has been said, may feel that they have no option other than to agree when such changes to an existing contract are proposed by bigger companies. A ban as proposed would not prevent this practice, as it would not prevent bigger companies from seeking changes and would not address the reasons why smaller companies feel unable to resist such changes—while effectively rewriting the core principles of contract law. Instead, therefore, our stakeholders supported increased transparency to shine a light on poor behaviour. I again propose to mandate reporting on this in our reporting requirement.

Charging suppliers to join or remain on supplier lists and seeking to reverse fixed payment and apply retrospective discounts and charges are deeply concerning practices. Although we could put in place a blanket prohibition on these practices, they are but two of the ways in which larger companies can seek unreasonable

commercial advantage from smaller suppliers. Our stakeholders believe that bans on specific practices would be easy to sidestep.

Once again, increased transparency will help address the economic imbalance involved. Our stakeholders support increased transparency on the use of “pay to stay” clauses. I can commit to requiring companies to report on these practices in the reporting requirement. We also commit to holding further discussions with stakeholders to discuss whether reporting on other practices mentioned, such as retrospective discounts or charges, should be mandated in the prompt payment report—which, of course, we have the power to do. I hope the noble Lord agrees that I have sought to address his concerns through the medium of transparency and, on that basis, will feel able to withdraw his amendment.

Lord Mendelsohn (Labour)

I thank the Minister for that reply, although I have to say that I remain extremely concerned about part of the approach. I know that the Minister shares a great deal of the concerns about this and that she is a very practical person who has looked at different ways to deal with it. Talking about transparency, culture and the possibility that there will be attempts to sidestep this is rather similar to closing the door after the horse has bolted. We are in that situation now. The Minister says that doing something more prescriptive will obviate what she is trying to do on culture, but I happen to think that it will work, while her approach will not.

I will give the example of a good friend of mine—perhaps they will not be after I have raised this—who is a senior member of a company that uses a method called central distribution charges, which is effectively “pay to stay” by another means. It uses it in the UK, but not in Germany, France or Italy. In the end, that is because it is not allowed to use it, as it is not a proper term. My concern is that we can say, “They will sidestep it”, but we are in that situation now.

Companies come to all sorts of arrangements. We hear great stories from companies such as Next, Dunelm or John Lewis, where the price you pay is the price you pay, but there are far too few of them. Many others use a variety of measures to ensure that they meet a margin way in excess of what they have agreed the contract should deliver. That is our concern. It is wrong to say we can do this using the means of the reporting mechanism, because there are other contract terms you can use to sidestep the reporting mechanisms that we have. A much better and more effective way of doing this and stopping every such method is to create the architecture and a framework to look at what you can stop.

A very famous online company has a 40 to 50-day payment period. At 90 days they send fines, which you then have to contest. There is no individual you can speak to—it has to be done online. Eventually, you will get your payment terms, possibly within 180 days. They extend it through a variety of mechanisms which would not be covered by the existing provisions or by the transparency arrangements. Those are the problems which we are still some way from meaningfully addressing. It is very important for us to consider how we go

further on these asymmetries and poor practices and to look at the sorts of things which others, using more prescriptive means, have been able to address through legislation or regulation.

There is a strong case for these amendments. I am conscious that the Minister has made some progress, if it is somewhat glacial compared to what I would prefer. However, on the basis that we can get the Government to take these matters seriously and that they are prepared to deal with the most egregious examples and to start dealing with where companies and poor practice ends up, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4 not moved.

Amendment 5

Moved by Lord Stevenson of Balmacara

5: After Clause 3, insert the following new Clause—

“Payment practices: retention of monies

(1) The Secretary of State may by regulations impose requirements on certain companies to publish information about their policies, practices and performance in holding, safeguarding and releasing sums withheld by, or on behalf of, a payer from monies which would otherwise be due under a contract, the effect of which would provide the payer with security for the current and future performance by the payee of any or all of the payee’s obligations under the contract (“retention monies”).

(2) The regulations under subsection (1) may prescribe—

(a) the companies or type of companies to which the regulations apply;

(b) the information required to be published;

(c) the intervals at which, and format and manner in which, publication must take place; and

(d) the type of description of contractual provision to which the regulations apply.

(3) The restrictions on regulations in section 3(3) shall apply to regulations made under subsection (1) of this section.

(4) The Secretary of State shall arrange a review of the operation of the type of contractual provisions mentioned in subsection (1) after a period of 18 months following the coming into force of the first regulations made under subsection (1), and shall lay a copy of the report of the review before each House of Parliament.

(5) The review provided for under subsection (4) may make recommendations for requirements and obligations to be imposed upon certain types or descriptions of companies in relation to the practice of retaining monies as described in subsection (1).

(6) After public consultation, the Secretary of State may by regulations impose such requirements and obligations on prescribed companies as were recommended by the review, in whole or in part and with such amendments as the Secretary of State believes to be required in order to—

(a) ensure that the practice of withholding retention monies does not give rise to unfair treatment of payees;

(b) provide assurance that retention monies are held securely; and

(c) ensure that the position of a payee company from whom retention monies are being withheld is protected when a payer company becomes insolvent.”

Lord Stevenson of Balmacara (Labour)

My Lords, Amendment 5 is in my name and that of my noble friend Lord Mendelsohn. I declare an interest in that my wife is a practising solicitor who deals with

construction contracts. When we raised this issue in Committee I made the following points. Recent research shows that about £3 billion is outstanding within the construction industry, and only in that industry, by way of cash retentions; that the practice unfairly enhances the working capital of the party deducting them; and that most of those who retained moneys openly accepted that they added cash retentions to their working capital or actually reinvested them. The effect is that bodies that are commissioning work are also in effect borrowing from the small firms that are carrying out the work. This is counterproductive to good economic activity at a time when such firms are also having major problems in accessing finance.

The key issue is that cash retentions are being deducted from payments already earned. However, there is no statutory protection for the retained moneys that will ensure that they will in fact be available for release if, in the event, there are no uncompleted remedial works that need to be done. There is a good case for any retention funds to be kept separate from working capital, perhaps within an escrow account—as is now used for government contracts—or a separate trust account.

When the Minister responded to the debate, as well as outlining the new but still rather patchy approach to payments being adopted by the Government, she agreed that there were a number of issues of concern with the payment culture in the construction industry. But she said that the current statutory framework governing contractual terms on payment—which was introduced in 2011—with a prohibition on “pay-when-paid” clauses and a right to adjudication, would be sufficient to see out this unfortunate practice. She added that since 2014, the Government have been working with the industry to implement a payment charter that contains 11 commitments, including one specifically aimed at removing the need for retentions, with the intention of moving by 2025 to a position where retentions are no longer necessary.

The noble Baroness pointed out that the powers being taken in the Bill would be sufficient to gather the information needed for a review of current policy, and I take that point. But she was a little unconvincing about why it will take 10 years to gather the information about this issue, even if there were a need to go wider than just the construction industry. If this amendment is accepted, it would have far-reaching benefits for small businesses throughout the construction industry. They would not have to wait another 10 years before this practice is outlawed—but even if they did have to wait that long there is surely a case, which I have outlined above, for action now to require the use of escrow accounts for this type of payment. I beg to move.

Baroness Neville-Rolfe (Conservative)

My Lords, I thank the noble Lord for this amendment and for providing the opportunity for us to look again at the important matter of retention payments. Following Committee we have been busy. We have consulted with stakeholders on payment terms, and it is clear that the practice of retentions is an issue, as we suspected, largely confined to the construction sector. As with other payment issues in construction, issues with retentions go to the

heart of the industry’s business models. These models are driven by a broad and diverse range of customers—and, of course, there is an extensive reliance on subcontracting. The work is project based and frequently short term, with no ongoing relationships. Typically, low levels of capitalisation mean that the industry is heavily reliant on cash flow.

On the amendment, government is already able to include a new obligation to report on retention practices through the powers in the Bill. Since Committee, we have held a round table with key construction representative bodies to discuss how this might be done. We are following that up with a series of bilateral discussions to make sure that we get it right. The amendment would also require government to undertake a review of the practice of retentions. Following debate in Committee, we have held discussions with a wide range of stakeholders in the construction industry, and we found that there were a range of opinions. A proper assessment across the industry of the costs and benefits of the retention system will be vital to get the policy right—and it needs to be done in partnership with the industry.

I am pleased to inform noble Lords that the Government will therefore work with the Construction Leadership Council to undertake an analysis of retention payments under construction contracts. We are currently agreeing the project specification and it is our intention that the final report should be published early in 2016. That will provide an evidence base much more quickly than the 18 months after the coming into force of the reporting requirement envisaged by this amendment. The partnership is also important; an enduring solution to the issues rests in culture change. Legislation on its own is never likely to achieve change. The outcome of the research will inform the discussion about how the industry moves to a position of zero retentions.

Finally, the amendment would require government to take a power to introduce regulations. The Government’s work with the Construction Leadership Council will provide the evidence base for any action needed. Before that review has taken place, and given the lack of a clear consensus in the industry and among its customer base, the Government do not believe it appropriate to take such a power at this stage. We are taking a number of steps which will address the key issues at the heart of this amendment—and, on that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Stevenson of Balmacara (Labour)

I am very grateful to the Minister for that response. I agree with her that the issue is the business model in play in the construction industry. It is almost certain that the conclusion that will come out of the review that she is talking about is the one that we have been talking about—that there will need to be a new model for how the industry deals with the problem of how it contracts for and pays for the work that has been undertaken on construction contracts. That cannot happen too soon, because there are a lot of issues that need to be picked up in that regard.

I was very glad to hear of the work that has already been started. It is a good way forward—and, of course, there is an advantage in having a sector group responsible for construction that is well embedded in the department. That should, I would have thought, bring forward some of the issues that she has mentioned.

It is rare for the Opposition to offer the Government a chance to get their hands on an unmoderated handle of power, which they might use on some unspecified future date, because we generally take the view that that is not a good thing to do. We did that in this amendment, but it has been turned down and spurned. I simply regret that—but I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendment 6

Moved by Lord Mitchell

6: After Clause 5, insert the following new Clause—

“Small and Medium Sized Enterprises Access to Finance

(1) The Secretary of State has a duty to conduct a review on alternative forms of finance available to small businesses as defined in section 33(2) and micro businesses as defined in section 33(3).

(2) The review should include, but is not limited to—

(a) an assessment of how the banking sector is catering to the finance needs of SMEs,

(b) current methods used by the Government and relevant organisations to encourage SME consideration of alternative forms of finance, and

(c) the extent to which alternative forms of finance have been used by SMEs.

(3) The Secretary of State shall release a report on the findings of this review and lay it before both Houses of Parliament within one year of the commencement of this Act.

(4) The Secretary of State may, by regulations, act on the findings of the review.”

Lord Mitchell (Labour)

My Lords, I have addressed your Lordships’ House many times to take the Government to task for the slow take-up of new schemes designed to provide finance to small and medium-sized businesses. My theme has been constant. There have been so many initiatives over the period of this Government that even I, who really ought to know about these things, am confused. If I do not get it, how can a small business understand the options when they seldom have to deal with them?

I have cited Funding for Lending as an example. I know that the Government think that it has been a resounding success, but that is not what I hear on the coalface. One banker said to me, “What am I to do? The Government throw money at us, and I have a choice: whether to deploy these funds on small businesses, which are risky and difficult and costly to analyse and administer, or else use the cheap funding to build my mortgage business to where I can assess the risk, and it is easy to run”. It is also not what the figures show. More often than not, one quarter followed by the next quarter, the amount of funding extended by Funding for Lending has gone down.

While all these government initiatives have been sputtering along, there has been a very acceptable growth in non-government schemes. The market for alternative finance has exploded, largely as a result of

the paralysis of the high street banks, and we on these Benches think that that is to be encouraged. Challenger banks have made a very big impression. Metro Bank, Aldermore and others, such as Santander, are changing the landscape. Peer-to-peer lending has taken off and is becoming a major force. We, as I say, welcome these changes. The traditional banks have let down small business, and it is perfect that alternative sources are stepping into their shoes.

We need, however, to know what is happening in the marketplace. So many questions are asked in your Lordships’ House on this issue, and the truth is that no one seems to know the answer. This amendment will place a duty on the Secretary of State to conduct a review of alternative forms of finance available to small business. This review will examine how the banking sector is catering to the finance needs of SMEs and how SMEs are being encouraged to use alternative forms of finance.

We need the facts, and only an obligation on the Secretary of State will give us the information we require. I beg to move.

Lord Cope of Berkeley (Conservative)

My Lords, as the noble Lord, Lord Mitchell, has said, we have debated access to finance and all the various schemes, both government and private sector, on a number of occasions. I agree with him that there is an awful lot going on in this field. A lot of improvements have been made, by the Government’s efforts, these new forms of alternative finance and so on. I go along with the noble Lord, Lord Mitchell, on all that and on the difficulties of assessing quite what is happening and where the best developments are.

Where I get into trouble with Amendment 6 is the last little bit—proposed new subsection (4)—which says that, at the end of this review, when it is laid before Parliament:

“The Secretary of State may, by regulations, act on the findings of the review”.

That is an incredibly sweeping power, which I would be wholly reluctant to give the Government. I heard what the noble Lord, Lord Stevenson, said at the end of the debate on the previous amendment, but this is a very sweeping power indeed, about which I am very cautious.

Lord Myners (Non-affiliated)

My Lords, I support the amendment of the noble Lord, Lord Mitchell, and will be very surprised if the Government do not see merit in it. The coalition Government have made very serious efforts to address the impact on the economy of a shortfall in credit availability. They have launched multiple schemes, as the noble Lord, Lord Mitchell, indicated. The previous Government, of which I was a member, did likewise, and we found it extremely difficult to stimulate sensible extensions of credit to support business. The coalition Government found that it finally got lending going largely through the mortgage market. Only time will tell whether that has long-term economic benefit.

The Government have encouraged us to leave relatively undisturbed the dominance of the major banks. The market share of our major banks would be sufficient in normal circumstances to have triggered a competition

inquiry many years ago. The dominance of the major banks is reflected largely in the absence of any differentiation in their products and pricing, and their basic business model is the same. They do not compete aggressively for market share; they do so at the margin but, on the whole, they sit on large legacy books of existing relationships. We know that, statistically, one is more likely to divorce than to change one’s bank.

Therefore, the Government should be encouraged to promote new forms of lending and should see this as an important adjunct to their own policies to support the economy. In those circumstances, I should like to believe that the Government would see real merit in the amendment of the noble Lord, Lord Mitchell, thereby ensuring that we get clarity about how the banking and credit availability system is working. I do not think that Santander is a challenger bank; it is the old Abbey National. Aldermore, Virgin, Metro and Bank One are challenger banks, but not Santander. However, if progress is not made by these banks, that is precisely the circumstance in which the Government would want to reach to independent evidence to show this.

I do not quite share the anxiety of the Benches opposite about the sweeping powers implied by the final part of the amendment. I imagine that they could be exercised only within the powers of existing law. I hope that a Government who are committed to furthering and promoting competition and transparency will not put themselves into contortions to reject the amendment. If they do so, they will stir continued anxiety that sitting opposite are a Government of bankers, for the bankers, rather than for society and our broader economy.

Lord Leigh of Hurley (Conservative)

My Lords, as has been said, we have discussed finance for SMEs at length and it will continue to be a perennial topic. I welcome Clause 5. All the challenger banks—the noble Lord, Lord Myners, named some of them but I was thinking more of the crowdfunding-type organisations—are very excited about what is going to happen in the market. I have talked to some of the big four clearing banks and they are excited. Despite the fact that one might have thought that they would be nervous about the clause, which will almost force them to send their customers to challenger banks, they are keen and excited about, and welcome, this event.

On the surface, the amendment looks sensible, other than—I reinforce the point made by my noble friend Lord Cope—proposed subsection (4), which is open-ended. Business is nervous about this sort of provision. It is worried by some of the pronouncements that have been made by the Opposition. A Labour Party proposal that has not been raised in this House suggests that if a business chooses not to raise finance, or is not successful in raising it, but actually seeks to find a purchaser of more than half its equity, before such a transaction can be completed to a purchaser of the choice of the vendor, the vendor will be required to offer the business to all its employees on comparable terms. That was proposed in a recent speech by the leader of the Labour Party because he wants a John Lewis-type economy. While I understand that direction of travel, it is, of course, totally impractical and destructive

to business life. That sort of policy might be brought in under subsection (4) of the amendment. That makes me nervous and is one of the reasons why I would not be happy about the proposed new clause.

Baroness Neville-Rolfe (Conservative)

My Lords, I am grateful to the noble Lord, Lord Mitchell, for proposing the new clause, for his survey of finance for small and micro businesses, and for his welcome for some of the positive innovations that there have been in this sector in recent years. It was also extremely useful to have the comments of the noble Lord, Lord Myners, with his great experience in the City and in government, but I also heard the concern of my noble friend Lord Cope about the sweeping nature of the power. It was good to hear the comments of my noble friend Leigh of Hurley.

The noble Lord has proposed a new duty on the Secretary of State to publish a review on alternative forms of finance available to small and micro businesses within a year of the commencement of this Act. I start by reassuring noble Lords that the Government share their conviction that small and micro businesses need greater access to alternative forms of finance. Lending to small business, as has been said, is still concentrated within the four largest banks, which account for almost 90% of business loans by volume. Overall rejection rates for loans and overdrafts are declining, but still stand at around one in four over the past 18 months. Access to appropriately regulated alternative sources of finance can provide a real counterbalance to the mainstream banking sector.

I fully agree with the noble Lord that we should seek transparency on the availability of alternative forms of finance. I disagree, however, that a new review is necessary as it would duplicate existing publications on small business finance. One of these publications is the British Business Bank’s report on small business finance markets, which was published in December 2014. Its main focus was on the increasing use of alternative forms of finance by small business. I believe that this is what noble Lords are largely seeking from this clause. I can confirm that the British Business Bank intends to publish its small business finance report annually. I am happy to commit today to place this report in the Library of the House when it is published again this year.

The British Business Bank’s publication sits alongside a number of other independent pieces of research into this important subject, including the Bank of England’s quarterly Trends in Lending report, last published in January, the quarterly independent SME Finance Monitor, most recently published last week and Professor Russel Griggs’s report on the banks’ lending appeals process, published this week.

My response to the noble Lord would not be complete without touching on an even more important report—the work of the Competition and Markets Authority, the new, independent competition regulator. The CMA is conducting a market investigation into the retail banking sector, including the provision of banking services to small businesses. It has a wide range of powers available if it finds there are problems in the sector. The existence of this investigation helps to respond to the points

made by the noble Lord, Lord Myners. The CMA is due to report by April 2016 and I know that it will be of huge interest to this House. The Government will then respond to any recommendations made within 90 days. Any legislation that follows this response would, of course, be subject to parliamentary scrutiny in the usual way. I believe that we should let the regulator do its job and not pre-empt its recommendations with a concurrent review by the Secretary of State of how the banking sector is catering for the needs of SMEs.

Finally, I draw the noble Lord’s attention to the positive measures in this Bill to promote access to finance. Clause 1 removes a contractual barrier to invoice finance. Clause 4 provides for greater sharing of information through credit reference agencies. Clause 5 provides for the UK’s larger banks to be required to refer rejected finance applicants on to alternative finance providers. These provisions got a good degree of support across the House in Committee. I believe that all these measures will make a real difference to the availability of alternative finance for small business. Given the activity described, I am not convinced that a further report as proposed in this clause would be of merit. I hope that the noble Lord will feel reassured by what I have said and that he will feel able to withdraw his amendment.

Lord Mitchell (Labour)

I thank the Minister for her reply. I thank the noble Lord, Lord Cope, for his insightful addition to what was said and on reflection I think that he may have a point on Clause 4. I also thank the noble Lord, Lord Leigh. He and I know each other well. I have never before heard the statement that he made but he has my email so he knows exactly where to send it. I also thank the noble Lord, Lord Myners—I find it very hard to say that and am tempted to say “my noble friend”—for making the comments that he did. I have always felt that the banks are, and act like, a cartel and that you cannot tell one from the other. It is really good that they are now starting to change and are being forced to change. If my particular area—digital technology—is making that happen, so much the better. Crowdfunding has been very exciting but many of the new challenger banks have been able to come into this because of the technology they are using. That is absolutely fantastic.

I thank the noble Baroness for her comments and feel very reassured that the Government are working in this direction. The facts are really clear. Whether we are in government or not, I would like to be standing here in a year’s time having a conversation like this with the facts at hand. I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

Clause 13: Electronic paying in of cheques etc

Amendment 7

Moved by Lord Newby

7: Clause 13, page 13, line 18, leave out from second “instrument,” to end of line 19 and insert “if”

Lord Newby (Liberal Democrat)

My Lords, Amendments 7 to 19 and 84 make two technical but essential changes to the

cheque-clearing provisions relating, first, to consistency in the treatment of cheque and non-cheque paper instruments and, secondly, to the continuation of current statutory protections for the paying customer.

Amendments 7 to 9 and 19 are designed to ensure that non-cheque instruments, such as warrants and travellers’ cheques, are treated in the same way as traditional paper cheques under the new provisions for electronic presentment. Under the new legislation for cheque imaging, as currently drafted, it would be possible for corporate customers and other large non-bank customers to make arrangements to submit cheque images directly to the central switch that clears cheque transactions for all member banks, rather than their bank submitting images on their behalf. This would make the clearing process more efficient. However, the current drafting means that this option will not be available for non-cheque paper instruments that are not drawn on a bank.

The Government’s policy intention is to provide for a system that treats cheques and non-cheques in the same way, and therefore it is necessary to make these amendments to ensure the equal treatment of non-cheque instruments in all circumstances of presentment. On the basis of current practice, this approach does not present any difficulties. However, it is possible that the position could change in the future—for example, as a result of the development of new types of instruments that do not currently exist. For this reason, Amendment 9 confers a power on the Treasury to restrict the circumstances in which presentment by image is permissible. This power is intended to be used to deal only with any unforeseen issues that may arise in the future and could not be used to have any retrospective effect on instruments that have already been presented by image. It is subject to the affirmative procedure.

Amendment 12 is intended to ensure the continuation of current statutory protections for the paying customer. Under the existing cheque clearing system, a customer who makes a payment with a cheque can request the original cheque to be stamped “paid”, which stands as prima facie evidence that the payee has received the amount payable. This provides a protection for the payer in situations where the payee claims that they have not received payment.

The legislation for cheque imaging does not provide for an equivalent protection when cheques or other paper instruments are paid in by electronic image and the physical instrument does not end up in the possession of a bank. It has become clear that the loss of this protection would remove a useful service currently relied upon by some cheque users. Therefore, it is necessary to make an amendment to preserve this type of protection for the paying customer under electronic cheque clearing. This amendment will confer a power on the Treasury to make appropriate provision in regulations, subject to the affirmative procedure, because the precise nature of the evidence to be provided to the payer may depend on the technical design of the clearing system. The regulations will be able to set out the nature of the evidence to be provided to the payer and the effect of that evidence, including the weight to be given to such evidence.

Amendments 10, 11, 13 to 18 and 84 are consequential amendments dealing with the procedure for making

regulations under Amendments 9 and 12, and they provide minor and technical clarifications of the drafting.

To conclude, these amendments will ensure that the provisions for electronic presentment treat cheques and non-cheques consistently and that existing customer protections continue under the new system. I beg to move.

Lord Stevenson of Balmacara (Labour)

My Lords, I welcome the contribution to this debate by the noble Lord, Lord Newby, and for his helpful explanation of the matters that are being considered by this large group of amendments. We had a fair bash at this in Committee, so I was a little surprised to see so many additional regulations on this matter, particularly as this is an attempt to simplify rather than make more complicated an already rather obscure area of financial transactions. Indeed, in some senses these amendments seem to take us back rather than forward in that they seem to provide a bolstering of a paper-based or evidence-based solution to a number of things that one would have hoped could have moved on to an electronic age. But I am sure that the intention behind them is entirely correct, and we support the general direction of the move.

I wanted to pick up on one point. In the wording of the amendments on the Marshalled List there is reference to the power for the Treasury to make regulations, but it does not specify how they are to be exercised in practice. I agree that the number of occasions will be limited, but the Minister mentioned that the first group would be subject to the affirmative procedure and did not say anything about the second or third groups and whether they would be subject to the negative or the affirmative procedures. Could he clarify that for me please before we leave this point? If it is too difficult to do now, I am very happy to have that in correspondence, but we have no objection to this in general.

Lord Newby (Liberal Democrat)

My Lords, I think I said that the second group would be subject to affirmative resolution. My understanding is that the two issues that we are debating will both be subject to the affirmative procedure. If I am mistaken, of course I will write to the noble Lord.

Amendment 7 agreed.

Amendments 8 to 19

Moved by Lord Newby

8: Clause 13, page 13, line 22, after “to” insert “regulations under subsection (1A) and to”

9: Clause 13, page 13, line 22, at end insert—

“(1A) The Treasury may by regulations prescribe circumstances in which subsection (1) does not apply.

(1B) Regulations under subsection (1A) may in particular prescribe circumstances by reference to—

(a) descriptions of instrument;

(b) arrangements under which presentment is made;

(c) descriptions of persons by or to whom presentment is made;

(d) descriptions of persons receiving payment or on whose behalf payment is received.”

10: Clause 13, page 14, line 12, leave out “is” and insert “appears to be”

11: Clause 13, page 14, line 37, leave out second “banker” and insert “person”

12: Clause 13, page 14, line 37, at end insert—

“89CA Copies of instruments and evidence of payment

(1) The Treasury may by regulations make provision for—

(a) requiring a copy of an instrument paid as a result of presentment under section 89A to be provided, on request, to the creator of the instrument by the banker who paid the instrument;

(b) a copy of an instrument provided in accordance with the regulations to be evidence of receipt by a person identified in accordance with the regulations of the sum payable by the instrument.

(2) Regulations under subsection (1)(a) may in particular—

(a) prescribe the manner and form in which a copy is to be provided;

(b) require the copy to be certified to be a true copy of the electronic image provided to the banker making the payment on presentment under section 89A;

(c) provide for the copy to be accompanied by prescribed information;

(d) require any copy to be provided free of charge or permit charges to be made for the provision of copies in prescribed circumstances.

(3) The reference in subsection (1)(a) to the creator of the instrument is—

(a) in the case of a bill of exchange, a reference to the drawer;

(b) in the case of a promissory note, a reference to the maker.”

13: Clause 13, page 14, line 43, leave out “subsection (1)” and insert “this section”

14: Clause 13, page 15, line 47, at end insert—

“89E Supplementary”

15: Clause 13, page 15, line 48, leave out “section” and insert “Part”

16: Clause 13, page 16, line 7, leave out “section” and insert “Part”

17: Clause 13, page 16, line 9, leave out from “containing” to “may” in line 10 and insert “—

(a) regulations under section 89A or 89CA, or

(b) the first regulations to be made under section 89D,”

18: Clause 13, page 16, line 12, leave out “this section” and insert “section 89D”

19: Clause 13, page 16, line 14, at end insert—

“(12) For the purposes of this Part, a banker collects payment of an instrument on behalf of a customer by—

(a) receiving payment of the instrument for the customer, or

(b) receiving payment of the instrument for the banker (but not as holder), having—

(i) credited the customer’s account with the amount of the instrument, or

(ii) otherwise given value to the customer in respect of the instrument.

(13) Section 89D(4) applies for the purposes of subsection (12) in its application to section 89D.””

Amendments 8 to 19 agreed.

Clause 17: Review of regulators’ complaints and appeals procedures

Amendment 20

Moved by Lord Stevenson of Balmacara

20: Clause 17, page 19, line 14, at end insert—

“( ) The following regulators are excluded from the provisions outlined in this section—

(a) the Equality and Human Rights Commission;

(b) the relevant regulators in—

(i) the Department of Health;

(ii) the Department of Transport;

(iii) the Department for Work and Pensions;

(iv) the Department for Business, Innovation and Skills;

(v) the Department for Culture, Media and Sport;

(vi) the Department for Communities and Local Government.”

Lord Stevenson of Balmacara (Labour)

My Lords, my noble friend Lady Thornton would have preferred to have been in her place on this matter, but unfortunately she has suffered an unexpected bereavement. I am sure that your Lordships’ House would wish to send her their commiserations and hope that she is in good spirits at this difficult time.

The question of whether the Government have the relationship with the EHRC correct has featured on a number of occasions in this Bill and the Deregulation Bill. The Minister will be aware that the EHRC enjoys an A status as a national human rights institution. It is therefore right that on all occasions the Government are crystal clear that it is not appropriate to apply general regulations to the EHRC. The A status is awarded by the United Nations International Coordinating Committee of National Human Rights Institutions, which regularly reviews the EHRC’s compliance with the United Nations’ Paris principles, which require the EHRC to be an independent body.

We have to avoid the reality, or indeed the perception, of interfering with the commission’s ability to perform its regulatory functions and ensure that they are always and at all times independent. If that were jeopardised, it would in turn jeopardise the A status, which is generally agreed to be of importance to the UK’s international standing and reputation. For example, it enables the UK to influence the protection of fundamental rights globally and gives us a voice at the United Nations Human Rights Council. Any downgrading of the commission’s status would have a significant negative impact on the UK’s global influence.

The amendment also deals with regulators in other departments unspecified, which suggests that there may be regulators within each or any of the departments that might have the same characteristics as those applying to the EHRC. In some senses, that is a reflection of the fact that we are still in discussions within the Deregulation Bill about exactly how this process will be developed.

We understand—the Minister may be able to confirm—that it has now been decided to exclude at least one regulator in the Department of Health. If that is the case, the exclusion should also appear in the Bill, as that of the EHRC will if the amendment is accepted.

When she replied to this debate in Committee, the Minister said that this amendment was not necessary, primarily because the list of regulators to which the

small business appeals champion provisions can apply will be set out in regulations and that, because these will be taken under the affirmative procedure, there would be adequate control of the process. It is well established within this House, and Parliament generally, that it is not possible to amend secondary legislation. Therefore, this is not really the answer to the question of whether it is appropriate to bring forward a list of specified regulators in secondary legislation. There are three main reasons why the Government should accept this amendment, which would provide clarity.

The first, which has already been mentioned, is the need to protect the EHRC from any possible imputation that it is not independent. Secondly, the noble Baroness herself argued that financial regulators should be excluded from the Bill because they already have an extensive statutory framework for engaging with business stakeholders. This makes it easier for other regulators in the other departments mentioned to be excluded. Following the line taken on financial regulators, it would be appropriate to think about whether there are specific regulators to which similar arguments apply and they should also be listed in the Bill. Thirdly—and more generally—it provides the opportunity for regulators to have uncertainty about their position removed, because they will not have to wait for secondary legislation to come forward to know whether they will be included in a future regulatory provision. As we all know, uncertainty is very bad for business.

The Minister said in Committee that she agreed that there may be regulators for which the growth duty—an issue that is for the Deregulation Bill, not this one—is not appropriate, but she did not think it would be appropriate to start excluding certain regulators within the Bill because,

“regulators may change over time and it is important that there is flexibility to amend the list accordingly”.—[ Official Report , 12/1/15; col. GC 100.]

As I have tried to explain, the opportunity for flexibility is not given, because the secondary legislation process does not provide it. Real flexibility would be to determine now which regulators go into the Bill and which do not. That is why the amendment would be important in making sure that there is clarity. I hope the Minister will accept that there is at least a case for looking at this issue again and, perhaps, coming back to it at Third Reading. I beg to move.

Lord Deben (Conservative)

I do not find the second half of the amendment compelling, but the first half is very important indeed. The EHRC has a very special role in society and it is looked at very carefully by people outside. The Government have to be super-careful: we know perfectly well that this will not, of course, interfere with the EHRC. This is not, in any way, some sinister operation, but there are people out there who will find sinister operations in anything, particularly when one is dealing with something as delicate as the issues with which the EHRC is concerned. The trouble is that the mischievous people come from both ends of the spectrum: one end wants the EHRC to be more dominant and expansive in its role and the other end wants to have as little to do with it as possible. It is, therefore, important that the wording is right and I hope that my noble friend will have been able to consider this, both in

relation to this Bill and on the other occasion that this issue has been raised. I hope she understands that this is not because either side really thinks that there is something here that is wicked or hidden and being covered up. It is simply that there is a very blanket view from outside and it is quite hard to see why it is so difficult to exclude the EHRC. I very much hope that my noble friend will be able to help on that part, at least. The other part of the amendment is probably otiose: I shall not argue with it but I would not want to support it. However, the EHRC is particular, special and has a real reputation in the rest of the world that we do not want to see undermined.

Earl of Lindsay (Conservative)

My Lords, I also have a problem with a large part of the amendment. I disagree with the argument of the noble Lord, Lord Stevenson, that putting some departments and regulators in the Bill would make it more flexible than using secondary legislation. The Bill provides a requirement for that secondary legislation to be debated by Parliament. My other concern is the very wide exemption that the amendment suggests for a large number of regulators that fall under the six departments cited. This would undermine and threaten a policy that has been developed specifically to support small businesses and would send an unhelpful message. The policy is simply aimed at improving the appeals and complaints processes of a regulator when dealing with small businesses.

We should not forget that driving greater efficiency, accountability and transparency into the interaction between regulators and those they regulate has to make sense, as does having a simpler, more effective, more transparent, less costly and better understood series of processes by which small businesses are able to challenge regulators’ decisions and behaviour. Ensuring that regulators have appeals and complaints processes that work well and are fit for purpose, that rectify wrongs with minimal delay and are sensitive to small businesses—and micro-businesses in particular—must be good news for the economy as well as for the objectives that regulators are seeking to deliver. I would be very uneasy at the thought of the Bill exempting the number of departments and the very large number of regulators that the amendment proposes. I agree about the EHRC, but I understand that the Government will use secondary legislation to exempt it from this section.

Baroness Neville-Rolfe (Conservative)

My Lords, I thank the noble Lord, Lord Stevenson, for his comments on Amendment 20, which would restrict the regulators to which the provisions on small business appeals champions can apply. It was also good to hear from my noble friends Lord Deben and Lord Lindsay.

Clause 18 already provides that the list of regulators to be covered by the appeals champions should be set out in regulations. A consultation on the list of regulators closed in January. We intend to publish a summary of the consultation and our response before Parliament rises, based on careful consideration. The Government’s response will then become the basis of the regulations which will bring regulators into scope. These regulations will be subject to affirmative resolution, so Parliament will have the opportunity to consider which regulators

should be on the list. On other occasions, the noble Lord, Lord Stevenson, has called for just that affirmative resolution. Although the consultation has closed, we shall take into account representations that noble Lords have made during discussions on the Bill. I am coming on to reassure about the EHRC, but I encourage any noble Lord who has particular concerns about anything else to let me know: we will give them a fair hearing.

Listing inclusions and exemptions would make the Bill cumbersome and unwieldy. Pre-empting our case-by-case consideration through a blanket exemption is not the right way ahead. The amendment first seeks to exclude the EHRC. Noble Lords have linked this to the protection of the EHRC’s A status as a national human rights organisation. The Government share the determination to protect the commission’s status and we understand that, as a regulator, the EHRC is different and needs to maintain its independence from government.

The Government’s position is that the EHRC will not be in the scope of the champions policy. It was not included in our consultation on the list of regulators to be brought into scope. No specific regulatory functions of any other particular named body are listed for inclusion or exclusion in the Bill and it is not necessary to do so in relation to the regulatory functions of the EHRC. Doing so would set a precedent that might lead to overly complex legislation. We have never proposed to include the EHRC, and today I can make a commitment not to do so. The Government will not include the EHRC in the small business champions policy. I hope that noble Lords will accept that full, unequivocal and repeated assurance. In Committee, the noble Baroness, Lady Thornton, was kind enough to accept my assurance on this point, and the majority of noble Lords accepted similar assurances in respect of the growth duty during the passage of the Deregulation Bill. I hope that the House will be willing to do the same today.

The second part of the amendment proposes to exclude any regulator belonging to a list of departments. The proposal would exclude more than half of the regulators we propose to include. Many of them have considerable contact with small businesses. There is broad support for small business appeals champions to make sure that businesses have effective routes to regulators. The amendment would deny that assurance to care homes, which need to challenge rulings by the Care Quality Commission or businesses challenging inspections by the Health and Safety Executive. I do not understand why we should emasculate a policy that has such widespread backing.

The noble Lord, Lord Stevenson, asked whether the Government had decided to exclude a health regulator from the appeals champion policy. We have made no decisions yet, and we shall do so on a case-by-case basis. As I have said, if any noble Lord or regulator is in this situation, they should make representations to us. We intend to make a decision on the list and publish our response before the end of the Parliament.

This is not the growth duty. This is simply a policy that aims to improve public administration and provide an assurance that regulators have the procedures and

processes in place to support business appropriately. We all agree that small businesses need a better deal, and we should be aiming to apply this policy to regulators where possible rather than looking at potentially wide exemptions. I hope that, in the circumstances, the noble Lord will feel reassured and that he will agree to withdraw the amendment.

Lord Stevenson of Balmacara (Labour)

I thank all those who have contributed to the debate. Perhaps I may make one or two points about it. I would say to the noble Earl, Lord Lindsay, who obviously has great knowledge of and experience in this area, that I can understand why he might think so. However, I draw his attention to the fact that the intention in the second part of the amendment is to select a group of regulators equivalent or similar to the EHRC in the sense that they are required to be taken out of a broader approach. It does not attack all the regulators in a department. If he misunderstood that, I apologise, but it is clear that what we are trying to do here is to say that because we were not involved in drawing up the list of regulators, we are not absolutely clear which are in and which are not. In that sense, it is imperfect and we would have to be quite inventive, if the amendment were to be accepted, to come to the right conclusion. I accept that it is not as well done as it could have been. However, it has provoked a good debate and that is the point. Indeed, the noble Baroness has already accepted that there may be one or two regulators that might well be included in the list of the growth duty within the Deregulation Bill. That might not be appropriate for small businesses—and vice versa. We are in a situation where we are not sure how the lists will bottom out. It is that unease which I was trying to attack, and in that sense I hope that the noble Earl is reassured on the point.

It is worth reflecting on the fact that, to do what is required in the Bill, as I understand it, appointments would need to be made to various regulators at board level. That would have an impact on how these bodies operate. I do not think it is an entirely free-riding champion helping to resolve appeals. These are people who, by their constitutional and statutory position, will have to have an involvement in the day-to-day work of these regulators. By accepting this, we are accepting by implication that there will be a change—perhaps a beneficial one—to the way that some regulators will operate in the future; they will not do so as they were originally set up. Again, that is what I am trying to reflect in this debate.

However, I accept that, as presently drafted, the amendment would not achieve the ambitions we had for it and there may be better ways to approach this. It may be that the rather convoluted process whereby I think the noble Baroness was inviting individual Members of your Lordships’ House to write in with special and favourite regulators to be excluded will mean that we arrive at a resolution in an appropriate way. I am sure that this will come out all right in the wash, but at the moment it seems rather a complicated way of doing it.

I will say again that it will not be possible for either House of this Parliament to pick and mix within the secondary legislation. It must either be accepted as it

stands or we can vote against the whole of the SI. It is not fair to say that we will have a choice at the time when these regulations are going through. The choice will have to be made outside Parliament and before the Government, whichever Government they are, put forward the secondary legislation. We have to be realistic about the fact that there will not be the same level of scrutiny.

I broadly take the points which have been made. It will be interesting to see how they go through. We made it clear in Committee that we are not against the idea of there being appeals business champions, as it were. I think we agreed that we would call them “small business champions” in relation to regulation. It is a good idea but I am not quite sure whether it will work in practice; only time will tell.

Finally, on the EHRC, I am grateful to the noble Lord, Lord Deben, for his consistent support for this issue. If it is so clear in the minds of Ministers that the EHRC is not, will not and never can be part of the processes involved in this Bill or in the Deregulation Bill, why on earth can they not just accept that it would be sensible to table an amendment at Third Reading stating that the EHRC is not involved? That would peradventure put beyond doubt the question of whether the EHRC is ever around. There may be evil forces at work and there may not. We do not think there are, and we are not looking at it with suspicion. However, enough damage has already been done to the EHRC, for heaven’s sake, and what is left of it needs to be protected. It would be a positive and rather a noble thing for the Government to accept at this stage that it would be right to have that line in an amendment, just because the EHRC is so special, as the noble Lord said, and to be super-careful because of the particular nature of the commission. That is for the Minister to reflect on and perhaps to come back at Third Reading.

Baroness Neville-Rolfe (Conservative)

I very much take the point that the noble Lord has made. I am happy to consider whether we could put the EHRC into the Bill, but whether I can do that, I am not sure. Giving the commission that clarity seems to be widely supported around the House.

Lord Stevenson of Balmacara (Labour)

That is a very generous offer and I think it would solve an awful lot of problems. Indeed, we have been discussing it week after week for the past two or three months. I would be very pleased if she can do this, but I repeat that I am happy to withdraw the amendment at this stage.

Amendment 20 withdrawn.

Clause 19: Guidance by the Secretary of State

Amendment 21

Moved by Baroness Neville-Rolfe

21: Clause 19, page 20, line 1, after “must” insert “—

(a) ”

Baroness Neville-Rolfe (Conservative)

My Lords, government Amendments 21, 22 and 23 respond directly to our

Committee debates regarding the small business appeals champion and the business impact target. Regarding the champion, the noble Lord, Lord Mendelsohn, made a number of helpful observations about how it might work in practice. He was keen to ensure that any guidance issued to the champions should be laid before both Houses as well as published. I made it clear in Committee that this was already our intention and I am pleased to confirm it with Amendments 21 and 22.

I turn now to the business impact target. I thank the noble Lord, Lord Stevenson, for his comments in Committee regarding the scope of the target. In particular, he raised concerns around the clarity of the coverage regarding voluntary and community bodies. I have reflected on this issue and I agree that there is more that we can do in the Bill to clarify it. I have therefore tabled Amendment 23, which is a relatively straightforward provision to simplify Clause 27(5). It will remove the current membership threshold of at least 21 individuals for unincorporated bodies that do not distribute any surplus to their members. As I am sure many noble Lords will be aware from their own work in the voluntary sector, such bodies can be adversely affected by redundant, ineffective or excessively burdensome regulation, just as much as businesses can. Therefore, including them within the scope of the business impact target makes a lot of sense. It will not harm the voluntary sector, but will help to ensure that any burdens from new regulations are minimised and that there is transparent reporting of impacts.

This Government have already made a number of changes that have made it easier to set up and run charities and social enterprises. Those include providing greater legal clarity on volunteer liability and supporting proposals to make criminal record checks simpler and less onerous. The amendment will mean that such bodies are not excluded from the definition of “small” and “micro” businesses in Clauses 33 and 34, meaning that they can benefit from any regulatory exemptions made by reference to that definition. I hope noble Lords will welcome the amendments, and I beg to move.

Lord Stevenson of Balmacara (Labour)

This must be the shortest amendment ever considered in my time in the House. I look to the clerks for further guidance on these matters. The Minister suggested that we might welcome the amendments; we do welcome them.

Amendment 21 agreed.

Amendment 22

Moved by Baroness Neville-Rolfe

22: Clause 19, page 20, line 2, at end insert “, and

(b) lay any such guidance or revised guidance before Parliament.”

Amendment 22 agreed.

Clause 27: Sections 21 to 25 etc: interpretation

Amendment 23

Moved by Baroness Neville-Rolfe

23: Clause 27, page 26, line 16, leave out sub-paragraph (i)

Amendment 23 agreed.

Clause 28: Duty to review regulatory provisions in secondary legislation

Amendment 24

Moved by Lord Stevenson of Balmacara

24: Clause 28, page 27, line 23, at end insert—

“( ) The Secretary of State shall conduct a review of the current regulatory machinery used to consider regulatory and deregulatory proposals.

( ) The review should include, but not be limited to, the work of the Regulatory Policy Committee.

( ) Following the findings of the review the Secretary of State shall bring forward regulations to enhance the role of the Regulatory Policy Committee and its recommendations.”

Lord Stevenson of Balmacara (Labour)

My Lords, the amendment is in my name and that of my noble friend Lord Mendelsohn.

The amendment might have been raised within the Deregulation Bill, because it deals with the overall architecture of the regulatory framework. Although I am proposing the amendment to Clause 28, to some extent, it is possibly echoed in some other phrases and clauses in the Bill. However, it would be useful to get a response from the Government on the issue. I look forward to hearing what the Minister is able to say in response to my comments.

By way of background, I want to reflect a little on the purposes of regulation. The purpose of the amendment is to probe further the Government’s intentions in the changes that they are making to the regulatory machinery, particularly that bit currently undertaken by the RPC, which reflects on secondary legislation and gives the Government an external view of how that regulation will work in practice, particularly in the business area but not restricted to that.

Regulation is a word that we use extensively in this Bill and the Deregulation Bill. It takes several forms, and we should be careful to try not to mix them up too much. There are things that businesses have to do to be compliant, either with industry standards or with health and safety. But there are, in some senses, different types of regulation, including pre-emptive measures by businesses to reduce the likelihood of being sued, inspection-based regulations for food and hygiene standards, and workplace and financial regulations, particularly health and safety. Many of these will offer benefits to businesses outside of simple compliance, but, in many cases, they are there in generic form and do not specifically help an individual business.

It is important to bear in mind that the culture and context within which businesses operate, which we talked about a lot in earlier amendments, results from a combination of legislation and regulation. The two go together and cannot be distinguished, but where they are coming from and what they are trying to achieve must be carefully thought through.

I say all that because the Government have made a virtue of their one-in, one-out approach—now one in, two out. Doing it by numbers has rather taken the eye, rather than trying to lead into proper consideration of what the regulation is about. In some senses, it is a good thing. Simply saying that there has to be a reduction in regulation does focus the mind. But, and I offer this simply by way of observation, I feel that, in

the Deregulation Bill, we got a response by numbers and not by intention or principle, which is not necessarily the right way. There may be a better approach, which might be to think harder about what it is that regulation is attempting to do and try to work out, across the various aspects of it, how it could be made more appropriate to the job.

Such an approach really has to answer questions about whether regulation is the right approach or there is some other solution; whether the regulations come from an external force, such as European Union requirements; and whether it will be easy to comply with. These are all areas that follow on from the need that one has. One hopes that, in doing that, the assessments that are made in the preparation of regulation answer those questions and, in aggregate, provide a better environment in which regulation operates. As part of that arrangement, the Government have set up and use an independent body, the RPC, to look at regulations put forward. It provides a kind of “traffic light” solution, which is relatively crude in its outline, as well as some detailed comments about whether the regulations are fit for purpose, whether they will achieve what is intended and whether they need to be rethought in terms of their impact.

If we are to continue to have the approach that I have outlined, which is not just a by-numbers approach but one which reflects the kind of economy that we are trying to build, supporting high-quality skills and other things, and where regulation in totality is fit for purpose and is as good as can be got, there is a role for a body which looks across the totality of government and considers more than just how the Government are proposing regulations but how they will apply. It is a two-sided approach: both looking at the words in the regulations and the impact that they will have, not just on business but on society more generally. One then has to ask what needs to be set up in order to do that.

As I understand it, Clause 28 requires departments to review secondary legislation that they propose. In our earlier exchanges in Committee, the impression was gained—I would like the Minister to confirm or deny it—that this would affect the work of the existing RPC, which is very well regarded. It is not entirely clear from Clause 28 what exactly is happening here, so I would be grateful if we could have more detail on that. Will the RPC be made statutory? Will there be more bodies that each department will have? Will the new arrangements being introduced be limited to secondary legislation or will it have a wider remit, as has the RPC, for all regulation, including regulation that impacts on other groups such as consumers, charities and other bodies?

Where will responsibility for the new system lie within government? Will it be within BIS or will it go to the Cabinet Office? That would be a more logical place to locate it, because the arrangements have to apply around Whitehall and not just within the business department.

The primary purpose of the amendment is to add some more detail to what was said in Committee and to enable us to reflect more carefully on the position of the RPC. I beg to move.

Earl of Lindsay (Conservative)

My Lords, in moving the amendment in his name and that of the noble Lord, Lord Mendelsohn, the noble Lord, Lord Stevenson, raises a number of interesting issues. I am delighted to be able to share many of the sentiments that lie behind the proposal, having served both the previous Government under both its Prime Ministers and this Government on a number of independent bodies advising them on better regulation.

While supporting and sharing the sentiments that lie behind the amendment, I am not completely convinced that the Bill is the right place in which to progress them. I am also concerned that, as written, there could be unintended consequences.

I wholly agree that the Secretary of State should be reviewing the current regulatory machinery used to consider regulatory and deregulatory proposals. I would prefer to see—which I believe is the case—the relevant Secretary of State regularly reviewing the entire regime that oversees regulation and deregulation; so rather than it being a one-off exercise, this, as it were, should be a regular exercise undertaken by any Government.

Going on to the next part of the amendment, I also agree that the scope of the review should include the RPC, but not be limited to the RPC. That is absolutely right. Not only are regular reviews very important, but the reviews should be very broad and should cover the broad scope that the noble Lord, Lord Stevenson, set out in terms of the landscape that surrounds and underpins legislation and determines the culture that produces legislation, regulation and so forth.

The ecology of regulation is certainly a very long and quite complex one. The review should look at how the better regulation machinery deals with policy-making prior to regulatory proposals being brought forward. It should look, as the RPC does, at specific proposals that come forward, but it should also look at compliance and enforcement issues. As the noble Lord, Lord Stevenson, mentioned, it should also look at the extent to which alternatives to regulation are properly considered. I share the motives behind this amendment, but, as I said, I have concerns about the exact proposal for putting this in the Bill.

In terms of the possible unintended consequences, it is the third part of the amendment that I have some concerns about. It is, to an extent, pre-emptive. To have a review of the better regulatory regime, and then presume that it must be the RPC that needs to be strengthened, is almost pre-empting the outcome of any such review. I wholly agree with the noble Lord that, at the moment, the RPC is the best show in town. It is doing an excellent job. It is well established, very well respected and extraordinarily effective. It is providing robust and independent scrutiny and analysis, supporting new regulatory proposals.

At 3 pm today I went to the launch of the RPC’s latest annual report. It was a well attended event. It looked back at the work it had done since 2010, over the lifetime of this Parliament. There are some very impressive statistics in the report. For example, it has managed to drive an improvement in the percentage of impact assessments from departments that are judged

to be fit for purpose to around 80%. That is a much higher percentage than was the case in 2010, and some departments are achieving a much higher percentage than 80%. If noble Lords read nothing else but the executive summary, they will see a page or two of very impressive achievements elsewhere on what it has managed to deliver by way of progress. Further to the remarks of the noble Lord, Lord Stevenson, in those five years the RPC has scrutinised more than 1,200 regulatory proposals and issued just over 2,000 opinions on the quality of the evidence base supporting those proposals. It has done an extremely important piece of work throughout the past five years. I agree that the RPC’s role is absolutely fundamental to the current better regulation regime.

If we had been debating this matter eight years ago, we would have said that the Better Regulation Commission was the best show in town. A similar amendment then would have suggested putting the BRC in the Bill. If we had been discussing it 12 years ago, we would have said that the Better Regulation Task Force was the best show in town and would have suggested putting that in the Bill. One of the strengths of the better regulation effort by successive Governments over the past 10 to 15 years has been its ability to evolve. My concern about the last part of this amendment is therefore that it presumes the continuity of the current body. The RPC is, as I said, doing an extraordinarily effective job at the moment; but given what we have learnt from the past 15 years, it is not unlikely that we might eventually want either the RPC to evolve into a successor body or to create another body alongside it to broaden its duties or scope.

The last chapter of the RPC annual report which was launched today deals with the future. It is a very interesting chapter in that the RPC speculates, with the experience it has gained, on how it could be more effective and how the better regulation effort could be more effective in the years to come. Although I favour leaving the Bill as it is, the noble Lord’s comments in moving the amendment, and the issues which the amendment raises, are very important. The Secretary of State should regularly conduct major reviews of the machinery and landscape surrounding regulation. Those reviews should be very broad-ranging and should look both at current bodies and at new bodies that may be sensibly developed in the future. In the mean time, I welcome that the Bill provides for the continuity of the role that the RPC performs and the outcomes that it delivers. That is the most important thing—that the role is undertaken and the outcomes achieved.

Under the business impact target, the Secretary of State must appoint an independent body to verify the impact of new regulations that are scored under the target. That is set out in Clause 25 and has been welcomed by the RPC. I agree that it is an important signal that independent scrutiny will continue to play a central role under any future Administration. The current arrangements under the RPC are working very well, and the RPC has developed a strong foundation for the future. However, to assume that the current machinery will be the right machinery in three or five years’ time might not be the best way to proceed with the Bill. Otherwise, I welcome the issues that have prompted the noble Lord to table this amendment.

Lord Popat (Conservative)

I thank the noble Lord, Lord Stevenson, for his amendment and for his comments on the work of the Regulatory Policy Committee. I liked his comment on the “traffic light” solution. Indeed, I give credit to the party opposite for its decision to establish the RPC in the first place. That created an important and enduring cornerstone for the regulatory machinery—one which this Government have continued to develop and improve.

The amendment requires the Secretary of State to review the current regulatory machinery used to consider regulatory and deregulatory proposals. Of course, such reviews already take place from time to time. They look both at the distribution of responsibilities between different bodies, and at the specific rules and requirements. When this Government came into office, they carried out their own review as to what arrangements were required to deliver their key policy priorities for better regulation. Critically, that involved a strengthening of the RPC’s independent scrutiny role.

The Government carried out a further review in 2012, when some useful changes were made, including a “fast track” route for proposals whose impact on business is modest. That change has helped make the system more efficient for both departments and the RPC. I am sure that the Government will ensure that reviews of the system will continue to take place as and when necessary. Given the terms of the amendment, I am equally sure that the Opposition, were they to be in our place, would do the same.

However, the benefit of reviews needs to be balanced against the need for stability in the system. This is why, for example, the appointment of the verification body under the business impact target in Clause 25 is required to be for the duration of a Parliament. An open-ended duty to review, as proposed in this amendment, could potentially undermine that stability and as a consequence put at risk a future Administration’s ability to deliver against the business impact target. It would also generate uncertainty for stakeholders about the wider regulatory system.

The amendment also requires that once a review of the machinery has been completed the Secretary of State must bring forward proposals to enhance the role of the RPC. The Government are by no means opposed to expanding the role of the RPC where it can add value—in 2013, we asked the RPC to scrutinise the new small and micro-business assessment—but it is very odd to create a statutory commitment to a further expansion of the RPC’s role in advance of the review that the amendment envisages.

The noble Lord, Lord Stevenson, asked whether the Government were legislating for the RPC. We are legislating to underpin the business impact target with robust independent scrutiny. Clause 25 requires the Secretary of State to appoint an independent body to perform that verification function. The proposals in the Bill entrench in legislation the verification role currently performed by the RPC but do not change the status or independence of the RPC. As regards the status of the RPC, it is an advisory non-departmental public body of BIS. It is not established in statute and does not have a separate legal personality. Its members are independent from the Government.

There is cross-party support for the RPC, the wider framework within which it operates and the principle that, from time to time, that framework should be reviewed. We can rely on that consensus to secure such reviews when they are needed. We do not need a statutory provision to do so. I hope that the noble Lord will be persuaded by my explanations and will agree to withdraw his amendment.

Lord Stevenson of Balmacara (Labour)

I thank the Minister for that response and also the noble Earl, Lord Lindsay, for his comments. We are at exactly the same place on this. I was only a bit sad that I got caught out trying to have my cake and eat it by sketching out the work which I think we agree is continuing and necessary, which will be to think harder about the regulatory functions, how best they can be delivered and—constructively and creatively—how best to do that work of review and scrutiny. On the other hand, I was taken by the “best show in town” argument: since we need something like this, why not just build on what we have, because it seems to be the best version of the body we all seem to think is necessary?

The Minister is right: the ecology of regulation needs a bit more scrutiny than it sometimes get. Of course, his work and experience here were instrumental in our thinking on this. Without that scrutiny, we will not be in a very strong place to build on the policy issues we are talking about, and to think harder about the way in which legislation and regulation will bite on individuals, companies and society as a whole. There is not an easy solution. We must just keep it under review.

I note what the Minister said in his response. Maybe we should leave things as they are for the moment, but the lessons need to be taken back to all departments, not just BIS. There may be some argument for BIS perhaps loosening its hold on this and encouraging other departments to have a bigger share of it. Although in some senses that makes it less likely to be effective because there is no champion within government, it might have the impact of raising other people’s game, which would be good. We need more thinking around that—I am not saying that we would necessarily do it at this stage.

The annual report of the RPC is very impressive, as the noble Lord said. The volume of work it does is astonishing, given that it is independent, non-statutory and has no particular locus within government. I do not know how we get these people to do the work they do, but it is a message we might pick up in other areas. With that, I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Report (1st Day) (Continued)

Lord Mendelsohn (Labour)

My Lords, this amendment proposes to treat small businesses as consumers. Consumers buy goods and services, and enjoy a range of rights and protections. The offer to businesses is lower, on the basis that they should be either smart or big enough to look after themselves. In reality, the smallest of businesses face many of the same problems as consumers do. Our amendment tries to address two core elements. The first is the right of redress and the imbalance that exists. The second is the rights of consideration. This is particularly acute in circumstances where small businesses deal with regulated markets, such as energy, financial services, water and telecoms.

Here we have to take into consideration that in talking about small business we are really emphasising the micro-businesses, those that employ between one and nine people. In these circumstances they need regulators to deal with them as consumers; and they are recognised by a number of regulators and their interests are protected as if they are consumers. It is an uneven practice and our amendment would make it applicable across the board, but there is a great deal of assistance given by some regulators. This should be extended to make sure that things such as tariffs, supplier charge, information and certain difficulties are dealt with more expeditiously, because the small businesses are treated as consumers. When it comes to micro-businesses, third-party intermediaries who may offer services that do some of these things are clearly no substitute for reasonable protections and regulators considering them very carefully.

On the issue of rights of redress, there are protections for businesses under unfair terms legislation, and under the Sale of Goods Act and Supply of Goods and Services Act, but these apply only to business-to-business transactions. A small micro-business buying anything without establishing a business-to-business arrangement cannot be protected. This pushes every small business with one, two, five or nine people not to buy retail and it is entirely misplaced. We are suggesting that the extension of the provisions to allow businesses to be treated as consumers will deal with this.

I am bound to say that the Government have extended the gulf between consumers and these micro-businesses by the extension of individual consumer rights under the Consumer Rights Bill that is still before the other House. There was a debate to address this growing gap through that Bill and the suggestion was that it could be done under this Bill as the most obvious and correct location. These amendments seek to address the gap.

There are arguments against such a provision. One is that it confuses who a consumer is: but that is not really the case. It accords rights as opposed to a sense of definition, and the confusion is not in the definition. As it is, this point is already recognised with respect to how regulators operate in considering small businesses. A second argument is that business does not support the provision, which is true to a degree because bigger businesses do not, but small businesses do. The Federation of Small Businesses has been clear that this is an important and useful device for the very large number of micro-businesses. A third argument is that there is an insufficient level of evidence on which to base this, but that is not the case: there is very strong evidence. It may not meet the highest test of evidence, but that is not for want of the capacity to try to identify it. Putting the burden of trying to monitor this in detail on micro-businesses—many of which stay small—is an unreasonable test.

Finally, I shall raise another important consideration which I thank the noble Lord, Lord Deben, for highlighting in Committee. This amendment is not just about our commitment to helping small businesses but is a strong recognition of the sort of protection small businesses need to be put in place. It shows that we value encouraging enterprise and individual activity in creating small businesses. We should underpin what they do with the most basic of individual protections. This is a good and reasonable measure to create consistency in a law which is currently fragmented. I beg to move.

Baroness Hayter of Kentish Town (Labour)

My Lords, I shall add a few words about this because we are talking about the products and services that very small businesses buy not on a regular basis or within their main business. In the next amendment, we will come to the Government’s welcome attempt to encourage the growth of home businesses, but in other ways aid that could be given is strangely absent from the Bill.

As my noble friend Lord Mendelsohn said, we argued that the Consumer Rights Bill should cover micro-businesses for things bought outside their main

area of business. We can all give examples of this, such as when an employee gets married and the boss sends a bouquet of flowers, except that it never arrives; or a sole trader suddenly needs some cleaning done because of an unexpected leak but the dry cleaner damages the chair cover; or a book-keeper needs a new kettle, a radio or a Hoover, but finds she or he will have none of the new protections provided in the Consumer Rights Bill; or, similarly, a charity orders sandwiches for a farewell lunch for a volunteer which fail to turn up.

There is no good reason for those people in such circumstances not to be treated as normal consumers. Unless this amendment is accepted, they lose those rights simply because the cheque is made out on a business account. As my noble friend reminded us, in Committee on the Consumer Rights Bill the Minister told me that such consumer rights for small businesses were best covered in this Bill, but these rights are not there. This is surely the time to add them.

Baroness Neville-Rolfe (Conservative)

My Lords, I thank the noble Lord for his amendment about treating small and micro-businesses as consumers. I welcome the opportunity to return to this issue. I am very glad to welcome back to the debate the noble Baroness, Lady Hayter. She reminded us of the good and graphic examples she always brought to the Consumer Rights Bill, which is very nearly on the statute book.

Since Committee, we have been giving this issue considerable thought. I remain concerned about the potential consequences of introducing such a wide-ranging measure in primary legislation. As I set out in Committee, we simply do not know the costs it might impose against the benefits which are assumed. The Government of course recognise that these concerns may not be realised, but nevertheless they, and the assumed benefits, require exploration.

Uppermost in my mind is the importance of small and micro-businesses to the UK economy, which the noble Lord, Lord Mendelsohn, rightly emphasised. As we know, these businesses make up 99% of all businesses in the UK and total 5.2 million businesses. Of these, 96% are micro-businesses, which in aggregate employ 8.3 million people and have a turnover of £655 billion.

The Government believe this underscores the need to move carefully. The Bill is designed to support small and micro-businesses and put in place the conditions for them to prosper. The unintended consequences of sudden changes in regulation have the potential to undermine these efforts. We do not know what the impact would be here. We only know that some business groups have concerns, which I will come on to in a minute, especially about the blanket application of consumer rights. This arises, I think, mainly because a protection for small businesses when buying could be a cost for such businesses when selling to others. The worst-case scenario would be where a small business buys an item from another small business and the item fails and causes a significant loss. The purchasing small business seeks to recover that loss from the supplying small business and, as a consequence, the

supplier goes out of business. Currently, the businesses could agree in their contract to a reasonable limitation of this type of liability, whereas under this amendment they would not have scope to do so.

Since we last debated this issue, officials in my department have met business representatives and leading academics. As a result of these conversations, I am confirmed in the view that the issue is not straightforward. The British Retail Consortium considers that that the question of small business protection needs detailed consideration before any action is taken. For example, it raised concerns that the measure would remove businesses’ ability to reasonably limit liability in dealings with other businesses, and the possibility of this leading to significant claims for loss of business earnings.

Baroness Hayter of Kentish Town (Labour)

I am sorry to intervene, but that suggests that the Minister is referring to things which are integral to the business. The example we gave in Committee was hair-dryers bought by a hairdresser. Of course if they failed that would create difficulties, but we are not talking about such things. We are talking about things that are not key to the core business, and therefore any failure would not lead to business interference.

Baroness Neville-Rolfe (Conservative)

I thank the noble Baroness for her clarification. The problem is that both the items she has described and other items might be covered, but perhaps I could make a little more progress?

I accept that the issue should not simply be dismissed for exactly the kind of point that the noble Baroness, Lady Hayter, has made. There are various points that need to be explored, so in the spirit of collaboration the Government consider that a possible way forward is to hold a public call for evidence, which we need. If the noble Lord will agree to this and withdraw his amendment, I propose that my department publish a call for evidence before the end of this Parliament so this can be taken forward. As I have said previously, small businesses and micro-businesses are not unprotected at the moment. There are protections in the existing law and these also allow businesses to enter into flexible transactions. All businesses need the freedom to contract for their particular requirements, which the current framework allows.

The call for evidence—if this seems a positive way forward—would ask whether these current arrangements offer sufficient protection or whether a gap in the law exists. If such a gap was found to exist, it would enable the Government to better assess whether this could be addressed by extending some of the consumer protections in what should shortly become the Consumer Rights Act to small businesses and micro-businesses, or through other options if they seem better.

I wish to thank the noble Lord and the noble Baroness for the commitment they have shown to this issue. I know we share the same objective of ensuring small businesses and micro-businesses are well supported. I hope that on this basis he will feel able to withdraw his amendment.

Lord Mendelsohn (Labour)

My Lords, I am very grateful to my noble friend Lady Hayter for her intervention. As always, she has been able to encapsulate this issue with

the use of some very vivid and impressive examples and I pay tribute to her strong advocacy for small businesses and consumer rights.

I will start by saying a couple of words on what the Minister said on the substance of the amendments, and then I will turn to the other matters. I listened very carefully to what she said. I think that there is a limited issue on costs versus benefits in relation to this. The costs at the moment are heavy burdens on micro-businesses and I think that the cost-benefit analysis of this is quite limited. I am less concerned about some of the unintended consequences that she suggests because some of them are already the sort of things covered in the two Acts that she forced me to look at after Committee. I am not sure I enjoyed reading them but I did look at them to try and get better sense of what is contained in the Sale of Goods Act and the Supply of Goods and Services Act and how they operate. A lot of the issues which she raises are already covered there. In addition, the nature of the contractual relationships is clearly covered in the other Acts and is outside that. I know that she is extremely accomplished in her task, and that she does not just take the legal advice that comes from the department without scrutiny. There is an issue here about some of the caution always inherent in some of that legal advice.

Nevertheless, I thank the Minister for a very constructive suggestion and an excellent way forward, which we on this side strongly agree with and for which we are very grateful to her for suggesting. Outside this, I might try to persuade her perhaps to add a little money for a bit of research on the cost-benefit analysis—that will not be too hard a task. However, with appreciation for a very constructive response to our amendment, I beg leave to withdraw it.

Amendment 25 withdrawn.

Clause 35: Exclusion of home businesses from Part 2 of the Landlord and Tenant Act 1954

Amendment 26

Moved by Baroness Hayter of Kentish Town

26: Clause 35, page 32, line 23, at end insert—

“( ) In considering what is reasonable for the purposes of subsection (4), a court shall have regard to all relevant factors including but not limited to the following—

(a) the nature and location of the premises;

(b) the nature of the business and the extent to which the activities of the business are comparable to activities carried on at home which are not business activities;

(c) whether the business requires any structural change to the premises comprised in the tenancy;

(d) the number and frequency of visitors likely to come to the premises in connection with the business;

(e) the number and frequency of deliveries and collections of goods likely to occur at the premises in connection with the business;

(f) the amount of any noise or other environmental impact likely to arise from the business;

(g) the likely effect of the business on the parking of vehicles in the vicinity of the premises; and

(h) the proportion of the property used for the business.

( ) Where a dwelling-house is let under a tenancy to which subsection (2) applies, the landlord and tenant may agree in writing under the terms of the tenancy or in any other document signed by them—

(a) that a particular business, or

(b) that a particular description of business,

if carried on in the premises, shall be a home business for the purposes of this Part of this Act.

( ) Any such agreement shall be binding upon the parties.”

Baroness Hayter of Kentish Town (Labour)

My Lords, Amendment 26 stands in my name and that of my noble friend Lord Stevenson of Balmacara. It deals with the issue of home businesses which take place in rented homes.

At present, any landlord who lets residential property to tenants who then also use their homes for business finds that the landlord runs the risk that they will claim security of tenure as business tenants under Part 2 of the Landlord and Tenant Act 1954. Therefore, to protect themselves from that, very often within the tenancy agreement landlords prohibit any use of the residence for business. However, should the landlord in some way acquiesce to such a business, the tenants get security under the 1954 Act, regardless of any wording of the agreement.

Clause 35 would therefore allow that where a home business is carried on by a tenant, it would not qualify for security of tenure under the 1954 Act, and landlords can accept some working at home by tenants, who have only normal residential security of tenure. The clause also allows that where, in breach of any prohibition against business use, a tenant carries on such a “home business” and the landlord gets to know about it, effectively acquiescing in it, that would not in future give the tenant statutory rights.

We support the intention of this clause, but we are concerned about the woolliness of its wording and fear that it will deter the objectives set for it, because the clause does not say what a home business is. It says:

“A ‘home business’ is a business … which might reasonably be carried on at home”.

That caused my legal friends some amusement. The lack of clarity means that the issue will be fraught with uncertainty, which means that it is less likely that landlords or tenants will make the most of this opportunity.

Whether a tenant’s business can reasonably be carried on at home will depend on many things, which relate both to the physical building and its locality, but also to the work undertaken. We all know of a range of businesses that could happen at home: the office work that probably most of us do, catering, music teaching, tutoring, web design, computer programming, repairs, hairdressing, jewellery-making, fine art, journalism, counselling, physical fitness, accountancy, and the favourite of both the Minister and myself—dressmaking.

What can be done in the back yard of a remote cottage is a bit different from what can reasonably be carried on in a third-floor flat. Therefore, the problem is that without some guidance on what a court might take into account when deciding what a home business is, our fear is that landlords will be reluctant to venture

this way. The Minister, the noble Lord, Lord Ahmad of Wimbledon, was very helpful in the meeting he had with me on this, and in his subsequent letter. However, I am afraid that that letter betrayed a slight lack of appreciation of how easily disputes can occur over whether a business is a home business, and disputes such as that can end up in court because of the lack of any sort of clarification of what is meant by a home business.

There is the same lack of certainty once a landlord—notwithstanding any prohibition in the terms of the letting—acquiesces in the carrying on of a business, because the tenant will not be able to claim security of tenure as a business tenant in future. The problem is that in those circumstances there will not have been any prior engagement or negotiation between the parties; there has been only acquiescence after it, so the exact business being carried out will not have been agreed beforehand. It will therefore come to a straight fight, probably in the courts, sadly, over whether the business to which the landlord has effectively consented falls within the definition of a home business. But “home business” has no such definition in the Bill, and therefore it will be for the judge to try and work it out. He may well ask why Parliament did not give a little more guidance on this. Failing that, litigation lawyers will do what they always do and litigate.

Amendment 26 lays down a non-exhaustive list of considerations that will give the parties and the courts some markers by which they can navigate their way through the definition. The Minister’s letter, which is in the Library, suggests that where a tenant has agreed that a business is a home business, and the terms of the tenancy say so, it would be hard for the tenant to go back on that. Correspondingly, he thinks it would be hard for a landlord who agreed to the carrying on of a business that the tenant thinks is not a home business then to argue that the business is a home business. It is easy to see how disagreements can occur later, partly because the home business might change. It might grow from something that started on one table in the kitchen into something rather larger. There may be a change of landlord. The business and the tenancy might be assigned from the original tenant to someone else. The tenant might get a new lawyer who might try it on, if you like, arguing that it was not really a home business—it was a business and therefore should have greater statutory rights. There are also people who simply go back on their word and will say the business is a real business, not a home business, and therefore they should have statutory rights. We are trying to give some guidance.

There is another part of the amendment that was not addressed by the Minister in his letter, which is perhaps another way to try to solve some of these problems. Where there is an initial agreement between the landlord and the tenant that a permitted business is indeed a home business, it would be binding on the parties, possibly provided they notify the court, as happens in some other circumstances. That might deal with the problem. When we had the discussion with the Minister, he argued at one point that there should

be no distinction between a home owner running a business and a tenant running a business. However, there is a third party in this: the landlord, whose interests should not so easily be dismissed. Getting the definition wrong could give tenants rights that the landlord never intended that they should have.

To assist the courts, this amendment sketches out some of the issues that might be taken into account in the definition of “reasonableness”. It lays down the sort of issues to be looked at, such whether it is reasonable for this business to receive deliveries, customers, clients, patients or students; whether they can carry out noisy activities; how close the other neighbours live; and whether the business will generate an excessive amount of vehicle traffic, maybe even congestion or parking problems. The non-exclusive list gives some indication of the sort of issues that should be taken into account.

As I said, we support absolutely the intention of Clause 35, but its success will depend on how such definitions are received in the real world, and whether there is sufficient clarity to enable both parties to know where their statutory rights, particularly the landlord’s, will fall, so that this can go ahead and achieve the objectives that we and the Government want. I beg to move.

Baroness Neville-Rolfe (Conservative)

My Lords, I am grateful to the noble Baroness for her amendment and for providing the opportunity to return to the matter of home businesses, and I was very glad to hear of her useful meeting with my noble friend Lord Ahmad. The UK is a great place to start and grow a business. There has been an increase of half a million home businesses in the UK since 2010, with business confidence at record levels. New technology has allowed millions more people to work from home, many creating innovative businesses. Home working allows people to enter the workforce who otherwise might not be able to do so, for example because of family or health constraints. These opportunities should not be limited to home owners, but should also be available to those in rented accommodation.

Part 2 of the Landlord and Tenant Act 1954 gives tenants of premises occupied for any business purposes the right to renew their tenancies. Under the Act, this security of tenure would not apply if the landlord had prohibited business use in any part of the premises. So at the moment, private residential tenancies will commonly include a covenant against any business use to prevent a tenant gaining a security that they would not enjoy under a residential tenancy. The new model tenancy agreement developed by the Government for private landlords has highlighted the need for reform. The clauses before us today simply ensure that a business tenancy is not automatically created should a home business be permitted to operate in residential premises.

The Government have deliberately taken a broad approach to the definition of a home business, but the definition is clear. A home business will be a business run from a home, in a premises let as a dwelling, and a business of a kind that can reasonably be carried on in a home. I understand that the noble Baroness is concerned about the question of what is “reasonable” to be carried on from home. This will depend on the individual

characteristics of the home: its size, its proximity to neighbours and the access to the property, to name but a few. If we attempt to legislate to restrict the definition of a home business and set out a list of the kind that the noble Baroness suggests within this huge variability, we risk restricting a tenant’s entrepreneurship and placing a brake on the growth of this exciting sector.

I know that there are also concerns about potential disturbance, but we are taking these steps because they are sensible, and there are safeguards in place. Planning and environment laws deal with these issues for all properties, owned and rented, and there is no evidence to suggest that these laws are ineffective in dealing with businesses run by home owners. Landlords can still prohibit all or any business use and are free to set the terms of the lease and limit the noise level, as now. Covenants in existing leasehold agreements remain in place, and taxes and building regulations remain unchanged. It would surely be unfair for the law to restrict a tenant’s home business opportunity more than a home owner’s.

With the second part of the amendment, I recognise that the noble Baroness is trying to provide clarity for landlord and tenant, but these clauses already include a definition of a home business, and I fear that her amendment could have perverse consequences. Our clause already allows landlords and tenants to use the tenancy agreement to permit a home business that fits that definition. The noble Baroness’s amendment goes further than this by allowing the landlord and tenant to define a home business themselves. This could allow the landlord to avoid security for business tenancies such as those for shops, which rely on this protection to build and develop their businesses. I am sure that this is not the noble Baroness’s intention for the amendment to add more uncertainty and risk for the tenant.

This clause should not be a vehicle for landlords to remove security of tenure from business tenancies. It would be much harder to broaden the scope of these provisions later to encompass new types of business than to narrow or refine them through secondary legislation. We have included within the clause the power to make secondary legislation which could further limit the scope of a home business, and I assure the noble Baroness that the Government will keep this under review.

Since the 1954 Act, the world of work has changed. We need to make changes to ensure that the Act is not stifling tenants’ innovation. We do not think it is for government to limit the business activity people can carry out in their homes, so long as it is not causing adverse impact on the landlord or neighbours. Existing protections are in place to guard against any adverse impact to others. Why should privately renting tenants be treated any differently from home owners who run businesses from their homes?

I greatly appreciate the work of the noble Baroness to scrutinise this provision, but there is little more that I can say. I hope that the reassurance I have given her today in this House and the discussions that she has had with my noble friend Lord Ahmad will mean that she feels able to withdraw her amendment.

Baroness Hayter of Kentish Town (Labour)

I mean it sincerely when I thank the Minister, but I think she has fundamentally misunderstood. She says that my amendment would restrict and narrow the scope, but it is exactly the reverse. My fear is that, without certainty, landlords could still ban—I think she used the word “ban”—all businesses. My fear is that they will keep doing that because of the uncertainty. I think she has misunderstood what I was trying to achieve. The lack of certainty will leave many landlords banning, restricting or forbidding proper businesses because they will not be confident that it really will be a home business as opposed to someone starting a business and then saying, “Well, actually, this is a proper business”.

She also asked why a tenant should not be treated the same as the owner. The reason is that there is a third party, the landlord. The owner already has security of tenure because he owns his house, but tenants can get that extra security by taking it from a landlord. It is a different relationship. The question of why they should be the same as owners has not really been answered.

I accept that secondary legislation is possible. The Minister said it could be used to restrict use, I think, but it is the other way around. I want to enlarge the scope, so that landlords can do this safely, without automatically giving that extra security to the tenant. I have clearly failed to convince the Government. I am sorry about that because Clause 35 is important, and my fear now is that it will not be used as much as they would like. With those comments, I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

Clause 39: Regulations about procurement

Amendment 27

Moved by Lord Mendelsohn

27: Clause 39, page 36, line 6, at end insert—

“( ) The Minister for the Cabinet Office or the Secretary of State may by regulations ensure that the provisions of this section will not undermine the impact of the Localism Act 2011 and the Public Services (Social Value) Act 2012 and have due regard to—

(a) local authorities’ duty to promote economic growth in their relevant area;

(b) local authorities’ duty to promote skills development in their relevant area;

(c) the advertising and procurement tender period appropriate to the size of the business to ensure a secure procurement process; and

(d) the potential harm caused to local companies and businesses by the relevant contracting authority’s choice of supplier through the procurement process.”

Lord Mendelsohn (Labour)

My Lords, I shall also speak to Amendment 31. Amendment 27 ensures that the principles of localism and social value are upheld, and that local authorities have a duty to promote economic growth in their relevant areas. It ensures the duty to promote skills development; that the advertising and procurement period is appropriate to the size of the business; and

there is due regard to potential harm caused to local businesses by the contracting authority’s choice of supplier.

Amendment 31 proposes that the Secretary of State must publish a report detailing the procedures of the procurement process, which must include: an assessment of the current systems of redress available to small businesses engaged in the procurement process; an assessment of the viability of the small business procurement adjudicator; and guidance on suitability to estimate which companies are best suited for the contracts on offer.

We are proposing amendments that we hope will help round out the Government’s proposals, which we welcome. These amendments seek to add to Clause 39, which currently provides for the Secretary of State or the Minister for the Cabinet Office to make regulations imposing duties on contracting authorities in relation to procurement functions. Ministers can issue guidance to which authorities must have regard. This power can be used in a variety of ways and is extensive in scope.

Concerns have been widespread that these powers could centralise, cause approaches that may well not be suitable for a particular scenario—sometimes considered a “one size fits all” approach—and limit the capacity, particularly of local authorities, to procure strategically and adjust to local circumstance. Local government is already the best-performing part of the public sector in encouraging and obtaining services and working with small businesses, and is a successful local agent. In many ways, it seems incongruous that the Government, who have devolved so much to, for example, Manchester—appreciating its local capacity to do so much and to be such a strategically significant player—do not provide this for others and still do not allow for that sense in which a local authority can act effectively as a strategic agent.

Ninety-nine per cent of UK businesses are small but they account for 10.5% of central government expenditure on procurement. Local authorities have a much better record and just over 50% of such expenditure is with small businesses. Local authorities are also able to create skills, clusters, partnerships and arrangements with a variety of local participants, from the smallest micro-businesses to universities, and make a big difference to the profile and capacity of small businesses in their areas.

As with many other things, there is an issue here about ambition, forward direction and the sense of what we are trying to achieve in opening up public procurement to small businesses. Part of our issue, and the reason we have made our suggestions, is that we would wish small businesses to be able to be even more ambitious than the measures that the Government have already introduced. There can be circumstances where, in procurement, collaborations with small businesses could be better placed to deliver an outcome that would traditionally have gone to a larger business. In our discussions in Committee and beyond—we are grateful for the way in which the Government have been open to the considerations that we have raised—we

have even raised examples in which contracts identified as being worth just under £10 million could be procured to a small business, which could deliver tremendous capacity and benefits, and even cut prices significantly.

It is therefore important that we do not consider this issue only in regard to the smallest contracts and we should have a much bigger view about what small businesses can achieve for the public sector and in public procurement. Therefore, that is why we are concerned about requirements placed on turnover or levels of insurance. These are important areas in which government needs to find other ways to increase its skills in procuring these services to make sure that we are delivering the right opportunities for small businesses and encouraging them. Additionally, we are conscious that small business representatives are very concerned to make sure that small local firms’ benefits to local communities are protected. Where they can be, they should be enhanced.

Essentially, we are looking for an environment with more effective commissioning. We would like the Government to see these amendments in the context of how we can upgrade our expectations of what small business can achieve, address one of the bigger obstacles in public sector procurement—the procuring skills of the public sector institutions themselves—and deal with the issue of which many people have direct experience: the great caution and risk-averse culture that exists when procuring these tenders.

As part of these amendments, we would be very keen for the Government to consider the requirement to demonstrate how their commissioning for these contracts would promote economic growth and provide skills development in the relevant areas, take account of the local economic impact and make sure that small businesses are not excluded by dint of a contract’s size or documentation requirements. It is important to point out that we are not saying that procurement processes should be designed in favour of small businesses or local suppliers. We are saying that we need to understand what local suppliers can offer in innovation or support of outcome delivery before commissioning plans or procurement processes are signed off.

Too often, the complaint from local and small suppliers is that they have no opportunity to provide input at the pre-procurement stage. This input is often critical to driving innovation and can lead to improved outcomes and often dramatically reduce costs. If this pre-procurement process is not executed, central government, local authorities and agencies will follow the path of least resistance. The larger suppliers, with the resources to invest in marketing heavily to their customers and prospective customers, will have an in-built bias towards large enterprises. In this context, the suggestion of an adjudicator underpins this capacity to create a much more dynamic capacity for government to interact with these procurement processes. It allows for a much more open discussion, in many ways building on some of the work the Government have done with their mystery shopper scheme, but giving a lot more scope to intervene.

The Minister said that she would like to see better, simpler documentation that makes contracts more accessible to small businesses and voluntary organisations.

We agree. However, while the structure and form of documentation is critical, it is not inherently the most important part of the procurement process. In fact, before that process commences, much can be done and much benefit derived. There is sometimes too much focus on simplified documentation, which may well trigger the unintended consequence of an obsession with process and the efficiency of that process at the exclusion of the outcome. If organisations have not properly specified and thought carefully about how to include small businesses in the process, we may well be creating a more efficient machinery for excluding small businesses. It is in the design of the procurement process, and the clarity of the definition of the outcomes that we are looking to deliver, that small businesses will be best advantaged.

We agree that small businesses can be and often are excluded at the commissioning stage. That relates to the notion that due and proper consideration should be given to the role that small businesses and third-sector organisations can play in support of the delivery of whatever outcome is required. It is at this stage that the public sector should be engaging with the market in a structured manner, with early market engagement, telling the market what the issues are, being clear and structured about the outcomes it is looking to deliver, and calling on its local supply chain, including small businesses and third-sector organisations, for their input at this pre-procurement stage. Too often, the public sector bypasses this commissioning process, dusts off the tender document from the previous procurement process, makes a few superficial changes and presses the button. If we get that process right and engage the market in a structured manner, we will specify correctly and ask the appropriate questions at all stages of the procurement process to elicit the right outcome and be able to design the contract that will benefit that. This is not loading the dice in favour of small businesses; it is allowing their voices to be heard in a structured manner to enable local authorities to understand what they have to offer and what innovation they can deliver in support of the required outcomes.

Our amendments in effect build on what the Government are suggesting to create an outcome-based culture and a win-win situation, where central government, local government and their agencies can accelerate the shift away from an input-driven approach and be much better able to design processes that work.

We have been very supportive of a number of things. I mentioned the mystery shopper, the website and the portal. We are also very supportive of the Government’s intentions. We have some issues about the withdrawal of the pre-qualification questionnaires. We do not believe that they are great panacea. As it is, they have been withdrawn only for a particular financial limit and that limit seems quite arbitrary. We could, in fact, have the PQQs. They could be standard, but if they are withdrawn that is fine. It is not, in a sense, material for us. What is more material is the thrust, which we hope the Government share, of local authorities being good at procuring from small businesses and focusing on the outcomes and strategies that will benefit small businesses. That should be protected. We should widen the scope for promoting small businesses, building better procurement skills and strategies inside

the public sector, and providing an adjudicator to intervene more clearly. These two amendments will help to build the place of small business in public procurement. As I said, we acknowledge the work that is done but we believe that these amendments add to the Government’s initiatives in a very constructive way. I beg to move.

Baroness Neville-Rolfe (Conservative)

My Lords, I am grateful to the noble Lord for his amendment and for the opportunity to return to the public sector procurement issue. I also thank him for his interesting and wide-ranging introduction, which I and the officials concerned will read afterwards with considerable interest. The importance of outputs, not inputs, the value of the mystery shopper and the strength of some local authorities in the procurement area are common ground.

In response, I should like to update the House on where we are. Only last week, we were pleased to announce that in 2013-14 central government gave 26.1% of its total spend to smaller businesses, up from 19.9% in 2012-13. This Government have delivered on the aspiration set in 2010 that 25% of this spend would go to small businesses by May 2015. Looking forward, of course we want to do better.

Furthermore, the Public Contracts Regulations 2015 came into force last week. These make it clear how wider policy issues can be delivered through procurement where this achieves value for money and satisfies EU legal requirements and where the policy is clearly relevant to the contract subject matter. This includes, where appropriate, factors related to stimulating local business and growth.

As a result of the recommendations of my noble friend Lord Young of Graffham, the 2015 regulations help to level the playing field for SMEs, working to remove barriers that prevent them accessing public sector contracts. I pay tribute to my noble friend for the work that he has done in this area. All new procurement opportunities will be accessible on a single portal—Contracts Finder—launched last week. PQQs will not be used for contracts below EU thresholds, and there will be 30-day payment terms in all public sector contracts. Clause 39 will build on these new measures to break down further barriers. Following consultation, and once the final regulations are made under this clause, any published guidance will reflect the new obligations in a proportionate and meaningful way.

I shall now look at the amendments, starting with Amendment 27. The Government’s intention is to improve procurement practice. It is not about taking control away from local authority procurers, whether in Manchester or elsewhere. The noble Lord is completely right to emphasise the scale of local government procurement and the opportunities for SMEs for the benefit of both local government and the businesses themselves.

I assure the noble Lord that Clause 39 complements the Localism Act 2011 and the Public Services (Social Value) Act 2012 rather than conflicts with them. It is true that the clause does not reference social value considerations but it does not prevent a contracting authority considering them under the 2012 Act. The social value Act places duties on contracting authorities

to consider how they might achieve social value in what they procure and how they procure it. The duties in Clause 39 and those in the social value Act are therefore entirely complementary. The Localism Act is designed to devolve more powers from central government to communities and councils. It does not address the need for procurements to be run in an efficient and timely manner.

Clause 39 is consistent with recommendations made separately in the Local Government Association’s national procurement strategy. That strategy addresses the involvement of small firms, encourages the use of portals, and places more emphasis on pre-procurement market engagement. This is entirely consistent with the 2015 regulations and the way that the Government intend to regulate under Clause 39.

I turn to paragraph (d) in Amendment 27. The Government understand the importance to local authorities of being able to support local business. Such support must, however, comply with EU rules. The noble Lord’s amendment, while well intended, might lead to contracting authorities discriminating in favour of suppliers within a particular region or locality, which would be a breach of treaty principles.

The clause is not about centralising procurement, or taking a “one size fits all” approach. It is about helping all contracting authorities to establish good procurement practice in an effective way across the whole public sector in support of local economies and sustainable growth.

On Amendment 31 on reporting and the adjudicator, as a result of the 2015 regulations, contracting authorities are now required to ensure advertised procurement opportunities on the free-to-use Contracts Finder website and must report on the number and value of contracts awarded to SMEs. For contracts above the EU thresholds, the EU rules require contracting authorities to publish how many SMEs tendered for the contract and whether the successful bidder was an SME.

Regarding the question of a procurement adjudicator, to which the noble Lord referred, I do not consider that an adjudicator would be appropriate or needed as there are already—perhaps I can explain—two distinct and effective systems of redress for small suppliers. First, there is the traditional approach of taking legal proceedings, and all suppliers have clear legal means of redress set out in the remedies directive and in our new regulations. Secondly, there is a less formal scheme that we are setting in statute through this Bill—our mystery shopper service, which investigates referrals about poor procurement practice. I am glad to say that we are giving more teeth to this service, through Clause 40, so that contracting authorities must co-operate with investigations promptly, and suppliers can expect a robust and expedient conclusion, building on the strength that we both agree on.

Turning to the second part of the amendment and the question of requiring the Cabinet Office to publish guidance, I should make it clear that the new Contracts Finder portal will include information on public sector procurement opportunities above specified thresholds. The system will flag which contracts have been awarded

to SMEs. The current rules allow for flexible procurement with appropriate controls, and the Government do not believe we should remove contracting authorities’ autonomy to choose how to award their contracts. Equally, we must not unfairly tip the balance in favour of SMEs by effectively reserving contracts for them. To do so would contravene our policy to deliver value for money through competition and would go against the EU treaty principles. I have spoken at length, but I hope that what I have said gives the noble Lord some assurance on the points that he has raised and has given comfort to the House more generally that we have done this in the right way. I hope that the noble Lord will agree to withdraw his amendment.

Lord Mendelsohn (Labour)

I thank the Minister for that reply. I do not wish to sound churlish, but I hope she will forgive me if I raise a couple of points in relation to what she has said. I made the point twice that this was not about trying to create a process that was rigged in favour, but was much more about making sure that procurement was open to small business because everything—the skills, systems and outputs—was designed towards achieving a better outcome, so that small business would find it easier to compete to try to gain those sorts of contracts.

I think there are different ways in which the numbers have been calculated. I do not wish to doubt them too much, but some of the tier 1 classification subcontracting has been reclassified. It seems that the numbers have changed slightly. There is progress and I do not wish to undermine or contest that, but it is important that we maintain our ambition for this.

On Amendment 27, I am encouraged that the Minister stated very clearly that it was complementary.

This is important and I would be grateful if the Government would consider what they could do to make sure what they are trying to do was much more explicit. I am afraid that there is great concern about what local authorities must do; how they must act and comply. I think they are actually very good at the job. One of the guides I read recently was for Wiltshire. If the Minister can show me a better central government guide to how to procure than Wiltshire has produced, I would be very surprised and more than happy to give her even more fulsome praise from the Dispatch Box than I have already. An important dimension is that we are placing the onus on local authorities, which have been so good at doing it. I thank the Minister for her comments but an outstanding issue is that some local authorities have done a very good job and we should be mindful of that.

On Amendment 31, the procurement adjudicator has a very useful function. There are systems of redress, but this is not really about those. It is about systems of intervention. As the Minister rightly says, they are doing things on redress, like strengthening the mystery shopper, and we discussed this in Committee. There are also the usual methods of employing lawyers and going through the courts. However, the point of an adjudicator in these circumstances is to be much more dynamic, engaged and involved in encouraging the capacity of those procuring and the people involved in designing the processes. There needs to be a more dynamic conversation to make sure the skills are there.

I make the point again that everyone will recognise at different times that there is a risk-averse culture; systems are repeated and there is a lack of a dynamic sense about how you procure better. In the private sector, some go through a sort of performance to make sure their procuring capacity becomes ever more skilful, but this is probably lacking in the public sector. That dynamic conversation, which may need a mediator, is what the adjudicator is for. It is not just about systems of redress.

I have had a quick look at Contracts Finder as it stands at the moment in its beta version. Although I welcome the initiative, it is not particularly user-friendly and needs a fair degree of work to make it so. If the Minister would consider making it available also as an app, then the design might be more useful and reflective of what is needed and it would be more accessible to some businesses. There is no point in putting it on one site if it is not as readily available as it could be. In summary, I would be very grateful if the Minister would give further consideration to what we have said and see if there is any way to deal with the areas we are trying to address on how to get the systems working to procure better. I am very grateful that the Government will look at what I said earlier but anything that would give a stronger indication of how we could do something a little bit more inventive, to add to the efforts that she has already outlined, would be greatly appreciated at Third Reading.

Baroness Neville-Rolfe (Conservative)

Before the noble Lord withdraws the amendment, I say that I am very happy to reflect further on the important discussion that we have had. I thank him for drawing attention to the Wiltshire guide, because I am a native of Wiltshire, and for his suggestion of making the finder into an app. I will, perhaps, pass that challenge on to those concerned at the heart of government and see whether they can deliver it.

Lord Mendelsohn (Labour)

After such a fantastic response, how is it possible for me to say anything other than “I beg leave to withdraw the amendment”?

Amendment 27 withdrawn.

Amendment 28

Moved by Baroness Neville-Rolfe

28: Clause 39, page 36, line 10, leave out from “authority”” to “, or” in line 12 and insert “has the same meaning as in regulation 2 of the Public Contracts Regulations 2015 (S.I. 2015/102)”

Baroness Neville-Rolfe (Conservative)

My Lords, I shall be brief in speaking to these relatively minor but important amendments, and I shall start with Amendment 28. The Government are grateful to the Delegated Powers and Regulatory Reform Committee for its scrutiny of the Bill. In its report, the committee recommended that the power in Clause 39 should be changed from the negative to the affirmative procedure. The noble Lord, Lord Mendelsohn, also raised this in our debate in Committee, and so I am glad to be able to give effect to the recommendation.

Amendments 32 and 33 are technical amendments to update references to procurement regulations in Clauses 39 and 40 in the light of the new regulations that came into force last week. I hope noble Lords will support the amendments, and I beg to move.

Baroness Morris of Bolton (Conservative)

My Lords, there is an error in the Marshalled List and the proposed amendment should read as follows:

Page 36, line 10, leave out from first “authority”” to “, or” in line 12 and insert “has the same meaning as in regulation 2 of the Public Contracts Regulations 2015 (S.I. 2015/102)”.

Amendment 28 agreed.

Amendment 29

Moved by Lord Young of Norwood Green

29: Clause 39, page 36, line 42, at end insert—

“( ) duties to require an appropriate number of apprenticeships.”

Lord Young of Norwood Green (Labour)

My Lords, at the end of a long day I will endeavour to be as succinct and to the point as possible. We did think carefully about returning to this issue and I have today read through the comments made by the Minister in Committee. Given the importance of the issue, we felt that it was worth doing so. I shall quote the Minister from the previous proceedings:

“We have already delivered 2 million apprenticeship starts in this Parliament, and there are 20,000 apprentice vacancies around England at any one time. However, I share the noble Lord’s concern about getting enough young apprenticeships”.—[Official Report, 14/1/15; col. GC204.]

That goes to the heart of these amendments, although they are not necessarily aimed just at apprenticeships for the young. However, that is surely a primary concern given that there has been a decline in that area and given that in some parts of the country, despite welcome drops in unemployment, we still have significant high levels of youth unemployment. In that respect, I make no apology for returning to this matter.

I pay tribute to the Government’s commitment to apprenticeships but I have also complained in the past about simply quoting the number of 2 million, because the number is not particularly helpful. It needs to be disaggregated if we want to look at the figures for 16 to 24 year-olds. We can then see that more than 50% of those 2 million apprenticeships are in fact adult apprenticeships, and some of them would fall under the classification of reskilling rather than new jobs—not that I would dismiss that as unimportant. But I have yet to hear an argument from the Government or the Minister which is a rebuttal of our view that if we are talking about public procurement contracts, there should be a requirement on the part of those bidding for them to stipulate how many apprenticeships they will provide and what level of training will be available.

Of course this should not necessarily apply to all contracts. There needs to be a cut-off figure, which we have suggested should be for contracts worth £1 million or more. That is an appropriate level. The response from the Minister has been that this might be a deterrent

to smaller suppliers in the chain. I again cite the Crossrail model, where that has not proved to be the case. It remains a serious problem that only around one in five employers is recruiting apprentices, and that only about a third of FTSE 100 companies do so. The challenge is to involve a larger number of employers. One way to do that is for the Government to show that they are serious about this issue and that if companies want to bid for significant public procurement contracts they have to demonstrate the seriousness of their intention. I have looked carefully at what the Minister said and still cannot find any reason why we could not go down that road. We do not believe that there is any legal impediment to encouraging smaller employers or contractors to bid for such contracts.

The Government should recognise that if they want to encourage more companies and more employers to get involved, the apparatus with which they replaced the RDAs, the local employment partnerships, should surely be part of the strategy. There should be a requirement on local employment partnerships to work with local employers and local authorities to produce the maximum number of apprenticeships within the geographical areas that they cover. That is a fairly modest aim in the circumstances, unless we feel that we are being so successful in apprenticeship provision that we do not have to worry about it. I do not believe that we have reached that situation.

That is why we suggest in Amendment 30 that there should be,

“duties on local employment partnerships to work with the relevant small and medium enterprise organisations to deliver an apprenticeship strategy”,

and an annual review. In that way, the Government would have real information on where the best practice and achievements were taking place and they would be able to focus on local employment partnerships that were not delivering.

The second part of the amendment refers to,

“duties on schools, colleges, university technical colleges … and other relevant education institutions to have established links with local businesses to encourage apprenticeship development”.

As I have said on a number of occasions, another challenge that we face—I see it in schools that I visit as part of the Lords outreach programme—is that far too many schools are still committed only to pushing the maximum number of their students through to A-levels, regardless of whether it is suitable for them. They do not carry out the legal requirement on them to give their pupils a wide range of career guidance which shows them that there is another, vocational route, that they can earn while they learn, and that it is just as successful a route—for some students, it is even more successful—to a very worthwhile career.

It is not as though there is not a real need to do this. We know that we have an enormous number of vacancies in engineering and construction. We know that there is a huge gender imbalance as well. There is an awful lot of work that schools and colleges need to do in establishing links with business.

I look forward to the Minister’s response. I hope she will use this as an opportunity to take away the

suggestions that we have proposed in these amendments and have another look at it before she comes back to us at Third Reading, rather than just giving us the arguments that we heard in Committee. On those grounds, I beg to move.

Lord Stoneham of Droxford (Liberal Democrat)

My Lords, I am pleased to follow the noble Lord, Lord Young. In my heart, I am with him 100%. The opportunity to encourage through public procurement the expansion of apprenticeships and training and development is certainly worth while. The trouble is that these clauses are very much concerned with trying to enable small businesses to have a greater chance for public procurement contracts. Obviously, if we over-complicate the procedure, that is a problem. However, I just wanted to register my hope that the Government are continuing to look at this. It is something that they can encourage in the public sector and, indeed, they are already doing so. We need to do much more and there is a lot of very good casework and examples of where this is being done successfully at all levels of industry. I hope that the Government will continue to give this particular priority.

In addition, the linkages to the work of the LEPs are very important. We also have in schools a big obligation to promote technical apprenticeships and encourage more young people to take part. I am dubious as to whether the Government will be able to accept something at this stage in this Bill but it is something that should be a continuing priority.

Baroness Neville-Rolfe (Conservative)

My Lords, I thank the noble Lord, Lord Young, for his amendments and for allowing us to debate the important subject of apprenticeships, albeit rather late in the evening. I am also grateful to my noble friend Lord Stoneham for adding his wisdom to the debate, expressing concern about the particular provisions we are looking at but making absolutely the right point about the need to move the apprenticeship agenda forward and do ever more.

Starting with Amendment 29, I should, perhaps, remind the House that there is some outstanding work currently under way in this area. The noble Lord mentioned Crossrail as a trailblazer. It is an amazing project in all respects and has recently hired its 400th apprentice. Obviously, there is a huge opportunity to train apprentices on big construction procurement projects of that kind.

The Government have agreed to support apprenticeships growth in the provisions brought forward by city deal partners, linked to their growth sectors in the local economies. For example, 1,500 new high-value manufacturing apprenticeships have been created in the West Midlands and 420 apprenticeships have been created in Greater Cambridge in different priority sectors, from professional and scientific, through to advanced engineering. We are also encouraging employers to take on apprentices by creating the apprenticeship grant for employers and relaxing national insurance contributions for employers who take on apprentices. However, not every procurement is appropriate for delivering apprenticeships. I think the noble Lord acknowledged that. Trying to deliver a policy where it does not properly fit creates bureaucracy. We do not

want a situation where suppliers are forced to meet a requirement to create new apprenticeship opportunities every time a new contract is awarded. This would change the very nature of apprenticeships, meaning that they were not linked to the company’s needs. Young people could be let go before their apprenticeship ended, a concern that I have heard from the Local Government Association. Even more important, it could be damaging to the individual apprentice.

We also have to follow legal requirements. For above-EU threshold contracts, a contracting authority must always be able to show that the requirement to provide an apprenticeship is sufficiently linked to the subject matter of the contract. Some contracts will have no links with apprenticeships, so forcing apprenticeships into all of them could even breach these EU rules.

The noble Lord might say that the amendment refers to requiring an “appropriate number” of apprenticeships so this does not apply to every procurement. But how would a contracting authority or Government know what an appropriate number was? A blanket requirement about apprenticeships as proposed in the amendment would not work. However, the Government support the appropriate inclusion of training and apprenticeship criteria in procurement and we believe that such requirements are most likely to be relevant on major construction and infrastructure projects. We need to adopt a thoughtful and considered approach, working with industry. I assure noble Lords that we are actively working to achieve this.

I turn to Amendment 30. I should like to reassure the noble Lord that we support schools and local enterprise partnerships working together with SMEs to deliver more training and apprenticeship opportunities. There are some highly successful examples of this work taking place. Indeed, following a debate we had on an Oral Question that the noble Lord asked, I shared some of those good examples with him. I will not delay the House by repeating those this evening.

I understand that the noble Lord’s intention is to place general duties on local enterprise partnerships and educational institutions such as schools to encourage, develop and promote these apprenticeships. However, I do not believe that moving away from good practice in this area to regulation is the right way ahead. Local enterprise partnerships are flourishing because we are addressing exactly the barriers identified by employers, getting them involved directly, simplifying the system and giving them a free hand so that they can do the right thing. The Government are working with a number of such partnerships as part of the city and local growth deals to drive up business demand for apprenticeships in their localities. This allows local enterprise partnerships to choose the most effective way to promote apprenticeship development.

I share the noble Lord’s concern about the way apprenticeships declined in the first part of the 2000s. As he knows, we are getting back on track and doing many of the right things. My noble friend Lord Stoneham is right to urge us to do more and to make it a priority—which I can confirm that it is. However, I do not believe that legislation of the kind proposed in the amendments is right or sensible. While the noble Lord, Lord Young, knows I share his wish to increase

apprenticeships, it is wrong to introduce new bureaucratic regulatory burdens in a small business Bill. I fear that these amendments could be perverse in their effects and I hope that on reflection he will feel able not to press them.

Lord Young of Norwood Green (Labour)

I thank the Minister for her response. Like my noble friend Lord Mendelsohn, I do not want to appear churlish, especially at this time of night, but it was a predictable response and a rerun of the previous analysis. Of course, I do not want to introduce any level of bureaucracy that would act as an impediment to SMEs in bidding for contracts. That would be perverse. However, that does not need to be the case.

I am not suggesting that the words within this amendment are by any means perfect. We do not establish the criteria one would need to apply in introducing this. However, I do not believe that there is a legal barrier. We proved that with the Olympic requirement and the Crossrail requirement. If it was approached in the right way, this could be positive. I listened carefully and tried to think of a scenario where somebody bidding for a significant public procurement contract could actually say, “Well, no, we don’t need any apprenticeships in this circumstance”. I find that hard to believe. It is interesting: when I look at the analysis of the types of apprenticeships that have occurred under the Crossrail experience, they are rich and varied, including finance, accounting and business administration. There is a whole range. It is not just the engineering things. They have been much more imaginative in their approach there, so I am baffled by this idea that somehow there are significant public procurement contracts where no apprenticeships would be merited. Then, on the question of the role of local employment partnerships, of course we want them to flourish and be imaginative and proactive.

My concern is that we still have significant numbers of schools and colleges that are not carrying out their legal requirement to give a full range of career guidance to their pupils and students, and that they have not established the kinds of link with business that they should. The idea that it would again be bureaucratic to put a requirement on them to establish these links is not a bad one: it would be a good practice for them. They should also report annually, so that we could see the progress that they are making.

I hope that the Minister will reflect carefully on this brief discussion and see whether she will be able to address these issues when we come back to them on Third Reading. In the circumstances, I beg leave to withdraw the amendment.

Amendment 29 withdrawn.

Amendments 30 and 31 not moved.

Amendment 32

Moved by Baroness Neville-Rolfe

32: Clause 39, page 37, line 4, leave out “negative” and insert “affirmative”

Amendment 32 agreed.

Clause 40: Investigation of procurement functions

Amendment 33

Moved by Baroness Neville-Rolfe

33: Clause 40, page 37, line 31, at end insert “or

the Public Contracts Regulations 2015 (S.I. 2015/102) apply, disregarding for this purpose the operation of any financial threshold provided for by those regulations;”

Amendment 33 agreed.

Consideration on Report adjourned.