Retail Strategy

Bill Esterson Excerpts

Wednesday 10th July 2019 Westminster Hall

[Bill Esterson (Sefton Central) (Lab)]

It is always a pleasure to serve under your chairmanship, Sir David. I congratulate my hon. Friend the Member for Blaydon (Liz Twist) on securing this debate and on an excellent speech. I also congratulate my right hon. Friend the Member for Delyn (David Hanson) and my hon. Friends the Members for Batley and Spen (Tracy Brabin) and for Ellesmere and Neston (Justin Madders), who all advocated for their constituencies and spoke strongly on this issue. They touched on the importance of a retail sector agreement and referred to the USDAW proposals for an industrial strategy for retail; as a member of USDAW, I declare an interest in that matter.

My wife and I decided to buy a dishwasher, and searched online for a local retailer. We found that Smiths TV, in Formby in my constituency, sold dishwashers. Its website was well designed, and when we went to the store, the layout was attractive and the staff were friendly and helpful, so we bought from them. It is a local independent retailer that is clearly doing well, with four stores in Sefton and west Lancashire. Meanwhile, Aintree retail park and Aintree Racecourse retail park, which are next to each other, are both thriving, packed shopping centres where footfall is strong.

In my constituency and across the country, there are success stories in retail, including independent retailers that combine a strong online presence with excellent in-store customer service, and shopping centres where the management and stores combine to present an attractive offer that ensures that customers come and visit. To return to a point made by my right hon. Friend the Member for Delyn, what can high streets learn from successful out-of-town shopping centres? I have mentioned the success stories in my constituency, and it is important that we all do so, because there are plenty more.

However, as is the case with everyone else who has spoken in the debate, the trend across my constituency is far from positive. There have been high-profile closures such as Maplin, Comet and the other names that have been mentioned. In the high streets of my constituency—in Formby, Maghull and Crosby—we have the tattoo parlours, betting shops and tanning salons that others have mentioned, where once we had household names or good local retailers. Many retailers in my constituency, like everywhere else, find trading tough. That is why it is disappointing that the Business, Energy and Industrial Strategy Committee had to report that

“the Industrial Strategy promised to work with low productivity sectors, such as retail and hospitality, with the potential for even small productivity gains across people-heavy sectors having a significant beneficial impact on the UK’s overall productivity. Yet we found that so far neither the retail nor hospitality sector has been able to make significant progress on securing a sector deal of their own”.

The retail industry is a key part of our economy; it employs 3 million people and, according to USDAW, contributes 11% of UK economic output. Many people have their first experience of work in retail. In smaller towns and villages, shops are often the heart of the community, and retail is a fundamental part of how we all go about our day-to-day life. However, 74,000 jobs were lost in 2018 alone, with many more job losses predicted. There is a long-term decline in retail, which is a cause of great concern in many high streets and has a profound impact on communities, workers and the whole country.

However, as I have shown through the local examples I have given, there is much in the industry and high streets and town centres that tells us that this crisis can be addressed. Businesses can still thrive, and good, higher skilled, better paid jobs can be available if we improve skills and use technology to drive productivity, with a strong strategy and the proper partnership between national and local government, businesses and the wider community.

A successful retail strategy should put in place support for businesses to harness the power of the internet and to benefit from a combination of online and offline shopping. Smiths TV in Formby shows how that can work, but such good practice needs far greater promotion and support. Labour’s plans for business support will maximise the benefits of technology to help business, deliver the well-paid jobs of the future and help communities as well. As was said earlier, high pay means there is more for businesses too, as well-paid workers are able to buy more goods and services from them. The good use of technology, allied to equipping staff with the technical and interpersonal skills that I experienced at Smiths, offers a vision of a successful retail future.

The challenges in retail, especially in our high streets, have been analysed by a number of organisations. The Government must listen to the British Retail Consortium, to Bill Grimsey and Mary Portas, to USDAW, and to others who have written excellent reports. All have produced reviews with evidence-informed recommendations to address the high costs of business rates; the lack of footfall and public transport; bank and post office closures; the need in town centres for work space and housing, as well as for good-quality leisure facilities such as bars, cafes and restaurants; and the opportunity to re-establish public services with lots of staff near where shopkeepers can benefit from their spending power—services such as doctors and dentists, whose patients are also potential retail customers.

Retail is an industry of national importance. We are a nation of shopkeepers, but we are in danger of becoming a nation of shuttered shops. That is why Labour’s plan—a bold and comprehensive offer that would bring customers and workers to town centres, reform the crippling system of business rates and preserve the essential heart of communities—is so necessary. In it, we have addressed the need to have decent bus services—services that are free for under-25s and that have free wi-fi; to keep banks open; to address the digital exclusion of the too many who cannot go online to bank, those who need to use cash to buy and those businesses that rely on cash; to retain cash machines for the same reason, for consumers and businesses alike; to have a register of landlords to address the challenge of empty shops; and to overhaul business rates and consider the alternatives, such as an online sales tax. All those ideas are designed to help address requests made by businesses and shoppers. How about electric vehicle charging points to attract shoppers, while at the same time nudging behaviour on climate action?

A retail council that meets three times a year and whose recommendations go nowhere is a talking shop, and is no substitute for a retail industry strategy; £150,000 for a study of a limited number of high streets is no strategy either. When the majority of high streets have been excluded from the high street fund, it starts to look like window dressing, rather than the basis of a strategy that could transform the prospects of retail and communities. A lack of a detailed plan simply will not save retail jobs, or reinvigorate high streets or communities. There are deep-seated problems in areas of deprivation, which will take much greater intervention than in more prosperous areas.

We must recognise the realities of shopping habits, including online shopping, and not give up on our shops and their staff. Working in a warehouse fulfilling orders cannot be the limit of our aspiration for millions of workers, an nor will online shopping be the answer in all cases. Creating an attractive experience that balances online and physical shopping will provide an opportunity for businesses, consumers and workers, as long as we have the right strategy. Human interaction is important in life; that is as true in retail as anywhere else, and online cannot replicate that experience.

Smiths TV in Formby shows what is possible. If it can succeed as an independent retailer, so can many more. However, retailers cannot do it alone, which is why it is now time for the Government to take action. We must have a proper retail strategy, working with the industry to preserve jobs and reinvigorate communities.

[The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Kelly Tolhurst)]

It is a pleasure to serve under your chairmanship, Sir David, and I congratulate the hon. Member for Blaydon (Liz Twist) on securing today’s important debate. Like her, I have a family history in retail and shopkeeping: my great-grandmother ran a corner grocery store, my great-grandfather was a bootmaker and my father used to run a DIY shop.It is interesting that we are having this debate, because he closed that DIY shop after the retail sector changed. The likes of B&Q finished off some of our small, independent DIY shops. I hope I have been able to bring some direct understanding to my role as a Minister in this area.

As the hon. Lady and other Members have pointed out, the retail sector employs more than 3 million people and contributed £94 billion of gross value added to the UK economy in 2018. The retail sector is at the heart of our communities and our country. I reassure Members that I am extremely passionate and determined about the retail sector and that I care vehemently about it, much as everyone who sits in the House of Commons—not just those in the Government—cares very much about it and values it, the jobs it creates and the value it delivers to our communities.

Retail has always evolved to meet changing consumer demands, and it will continue to do so. Indeed, it is already thriving in many areas. For example, we have the most developed e-commerce market in Europe, with 48% of the estimated total of €198 billion in 2018. We recognise the high-profile pressures in the sector, but there are also businesses that are expanding and developing, as outlined by the hon. Member for Sefton Central (Bill Esterson) with his great plug for his local retailer Smiths TV. Amazon, Lidl, Aldi, Ocado and JD Sports are all companies investing in UK retail, which is a good sign for the future. Primark, which recently opened the world’s largest fashion retail store in Birmingham, is proving that a high street business can still be successful without a significant online presence. We have seen sales increase by 4% and increased profits. Organisations such as Pets at Home are taking on the challenge of changing consumer demand. In its stores, it is bringing in veterinary services and grooming services and investing in the workforce and apprenticeships. Many retailers are grasping the challenge of a changing retail sector and ensuring they are able to deliver services on the ground that consumers want.

We have heard examples from Members about local growth. It has been great to hear examples of local authorities working proactively with their high street forums and the opportunities available to them to try to grow and really focus on meeting the needs of the local community through the local retail offer. However, to continue to evolve, we need to innovate. I was therefore excited to see the UK Digital Retail Innovation Centre open in Gloucester in May this year, following a funding award of £400,000 from Gloucestershire’s local enterprise partnership. It will be a national centre for testing and developing disruptive digital innovations and will help shape and inform the future of cities with a special focus on retail.

Alongside those successes, we have seen some high-profile names struggle, including Woolworths, Toys R Us and, more recently, Debenhams and House of Fraser. We have been used to seeing those iconic names on our high streets, but in some cases they are no longer there. I do not underestimate the impact of those changes, which can be hugely difficult for the individuals and families involved and for communities. Indeed, I know the hon. Member for Blaydon met Toys R Us staff from the metro retail park when the store closed down. Some of them had been working there for 20 years, and I commend her for the support she showed to her constituents.

There is no doubt the sector is facing significant pressures, whether from uncertainty in the business environment or from changes in consumer expectations and preferences towards online shopping. Those challenges are reflected in retail across the world, not just in the UK. Our retail sector is still one of the best in the world, and we are well placed to deal with the challenges. Retail has a long history of responding successfully to change, of turning challenges into opportunities and of turning pressure into innovation. The Government are, and I personally am, absolutely committed to supporting the sector as it responds to change and strives to continue to serve the public so well, as it has in the past, and as it will in the future.

I am pleased, as part of my portfolio, to serve as the co-chair of the industry-led Retail Sector Council, alongside Richard Pennycook, the chairman of the British Retail Consortium. There has been confusion over the idea that the council does not meet very often and is just focused on the troubles of the past, rather than looking to the future, but I assure Members that we not only have Retail Sector Council meetings, but a number of sub-groups heading up the workstreams and meeting regularly. A lot of work goes on outside those meetings to reach targets. The workstreams are focused on future challenges and how we can drive the retail sector forward. It is not just a talking shop; if it were, I can assure Members I would want no part in it. I spent many a year before becoming an MP in talking shops, and I do not particularly want to do that as an elected Member of Parliament and especially not as a Minister.

[Bill Esterson]

I am glad the Minister has mentioned the Retail Sector Council. I am curious as to what it has achieved. Perhaps she can tell us, because if it is not a talking shop, it will have made a difference, and there will be some outcomes, deliverables and differences made.

[Kelly Tolhurst]

The hon. Gentleman is quite right. As he will know, when the Retail Sector Council was set up last year, we set its priorities. The six workstreams and the priority workstreams have been agreed. We are working for outcomes. The beauty of the Retail Sector Council is that it is the retail sector coming together with Government to find solutions to the future challenges. It includes not only the bricks-and-mortar retailers, but the online retailers and the small independent retailers. In the council, the sector is working with Government to move forward and bring forward plans and proposals that will benefit and aid the sector.

Businesses: Late Payments

Bill Esterson Excerpts

Wednesday 19th June 2019 Commons Chamber

[Bill Esterson (Sefton Central) (Lab)]

Unfortunately, I have only just received a copy of the Minister’s statement. I do not know why there was a delay, but it was not particularly helpful in preparing my response. [Interruption.] The Minister has just graciously apologised.

Late payment is believed to be the cause of 50,000 business failures each year, at a cost to the economy of £2.5 billion, along with thousands of jobs. Those are figures from the Federation of Small Businesses. The Minister is right to pay tribute to that organisation for the brilliant work that it does in advocating for small businesses on this issue and on so many others.

In her press statement, the Minister reported a fall in the scale of the problems facing small businesses, but let me caution her on that. She cited the excellent work of the Business, Energy and Industrial Strategy Committee, but it has suggested that it has evidence that payment terms are growing longer to mask some of these problems. Perhaps she can address that through some of the proposals that she has outlined.

We welcome the steps announced today as an important start in tackling the scourge of late payment. I tabled amendments to the Enterprise Bill that would have given the small business commissioner powers to insist on binding arbitration and fines for persistent late payment. The Government rejected those amendments, so we put the proposals in our 2017 manifesto, along with requirements for anyone bidding for a Government contract to pay their suppliers within 30 days. It is good to see the Government catching up with us today in their proposals.

The small business commissioner does great work with the £1.35 million in his revenue budget and, as I understand it, 12 members of staff at his disposal, but there are limits to what he can do. Although the £3.8 million recovered by the commissioner is important to the businesses affected, it is a fraction of the money withheld by late payers, which is in the tens of billions of pounds on any of the estimates available to us. What extra budget will the commissioner be given to discharge the additional responsibilities that the Minister is proposing, and what is the timescale for the consultation?

Accountability of company boards is a step in the right direction, but it will be important to compare the experience of the supplier with the reported practice in company accounts. How will the Minister ensure that what is reported is the time from the date of supply of goods and services rather than the date of recording the invoice, which any accountant knows can be significantly different and is often subject to delay when invoices are mysteriously lost or queried by accounts departments? How will this add to the existing duty to report? When will the consultation on giving the powers on the duty to report to the small business commissioner take place?

As the Minister told us, a number of companies that are members of the prompt payment code have been found not to comply with the code. The scandal of Carillion is an example of abuse of that code; we saw payment times of 120 to 180 days becoming the norm. Giving the policing of that code to the small business commissioner is a sensible idea, so will the Minister say what additional resources for these powers will be given to him?

The use of project bank accounts would have prevented the £2 billion loss to 38,000 suppliers in the Carillion fiasco. What consideration are the Government giving to extending the use of project bank accounts? I also note that the Government are pledging from 1 September to force bidders for Government contracts of more than £5 million to pay 95% of their invoices within 60 days. That is in line with the prompt payment code, but only with the lower end of its requirements. Why not make it a 30-day requirement?

One complaint of businesses is that the public sector is the source of some of the worst practice. The Minister mentioned the public sector in her statement. Another complaint is that smaller firms are often at fault in delaying payments. When does she expect action to be taken on public sector and other small business delays?

The problems of late payment need significant changes in practice. Today’s statement announces a series of measures which, if properly resourced, could make a significant difference. Businesses deserve a change of culture. The economy and the country need a change in practice. In broadly welcoming these measures, I hope that the Government’s delivery matches the rhetoric.

[Kelly Tolhurst]

I apologise to the hon. Gentleman for the fact that he did not receive a copy of my statement in sufficient time. That was not my intention at all. I hope that he will understand, following the many debates that he and I have had in the House, that that is not how I tend to work with him. I thank him for recognising that this statement should have an impact on the late-payment problems of many small businesses. One thing that has been made absolutely clear to me since I became a Minister—and actually prior to being elected, when I was a small business owner myself—is that late payment is always raised by companies that deal with large organisations. I am very pleased to be able to move forward on this matter.

The amount of money owed in late payments has halved. I wish to recognise the work that has been done by the small business commissioner since he took up his role one and a half years ago. He has collected more than £3.5 million in late payments. The hon. Gentleman is right to question his role and when the consultation will take place. We want that consultation to happen quite quickly. One of the key things that came out of the call for evidence was that people wanted more powers to be given to the small business commissioner. They saw his role as, in effect, an umbrella role encompassing a number of enforcement abilities for him to act on behalf of small businesses.

The consultation will happen soon, and I would like it to take place with speed. I reiterate that, as we seek views on whether we should allow the small business commissioner to apply sanctions such as binding payment plans and financial penalties, that would be a massive step change and step forward. The small business commissioner has been very vocal in requesting more powers to enable him to represent and help the small businesses that come to him.

We will also be seeking views on whether the small business Minister should have the ability to refer topics to the small business commissioner for investigation. The small business commissioner will currently investigate only once a complaint has come from a small business, so we are looking at other ways in which investigations could be carried out. Obviously, I am giving hon. Members just a sample of what will be included in the consultation.

The hon. Gentleman is quite right on the matter of boards. On the back of the Chancellor’s announcements in the spring, we are pleased to give audit committees the power to review payment practices and for that to be included in the annual report. We are working with the Financial Reporting Council and the frameworks department at BEIS to work out the best way for that to happen. The new strategic reporting requirement was introduced in January. We are asking the FRC how the payment reporting duty is covered by that new duty, if at all. I assure the hon. Gentleman that we will legislate to make that happen if necessary.

The Chartered Institute of Credit Management has worked hard on this issue over recent months, especially on the strengthening of the voluntary prompt payment code in October. We are pleased that cross-examining the data gathered under the payment reporting duty has helped with compliance with the voluntary code. We and the CICM believe that the best place for that duty is with the small business commissioner, so that the commissioner is, in effect, a one-stop shop and an easily identifiable pathway for small businesses.

The hon. Gentleman is right to talk about project bank accounts. Some hon. Members present, including my hon. Friend the Member for Bury St Edmunds (Jo Churchill), have lobbied me in the past on the matter of retentions. We have told the industry that we expect it to come to a consensus on a way forward, and we will take action if it does not.

As the hon. Gentleman knows, we have announced that from 1 September any company bidding for Government contracts over £5 million will be expected to pay 95% of their invoices within 60 days. If they do not achieve that target, they will not necessarily be able to bid for further contracts. In April 2019, we announced our new ambition that 90% of undisputed invoices should be paid to small businesses within five days.

Oral Answers to Questions

Bill Esterson Excerpts

Tuesday 11th June 2019 Commons Chamber

[Andrew Stephenson]

I know that the hon. Lady has discussed the issue with my ministerial colleague. I am not dealing with it personally, but I should be more than happy to have a conversation with my hon. Friend about it and come back to the hon. Lady.

[Bill Esterson (Sefton Central) (Lab)]

The British Retail Consortium has reported that the high-street footfall is at a six-year low. Town centre businesses across the country are closing. Labour has a five-point plan to reinvigorate our high streets, in stark contrast to the Government’s worn-out platitudes and failure to act. Precisely when is the Minister going to produce a plan—or will the Government just keep walking by on the other side of the high street?

[Mr Speaker]

With particular reference to Morley and Outwood.

Draft Companies (Directors’ Remuneration Policy and Directors' Remuneration Report) Regulations 2019

Bill Esterson Excerpts

Wednesday 15th May 2019 General Committees

[Bill Esterson (Sefton Central) (Lab)]

It is a real pleasure to serve with you in the Chair, Ms McDonagh, and it gives me the opportunity to congratulate you on the fine work you have done over the years in fighting for workers’ rights on a number of occasions. [Hon. Members: “Hear, hear.”] I am glad to have had the opportunity to say that.

The draft regulations remind us of how promises to curb executive pay used to have a prominent place in this Government’s agenda, along with issues such as having workers on boards. It was encouraging to see Julian Richer give employee ownership a vote of confidence yesterday, with his announcement about the future of Richer Sounds. I might also add that that was a welcome endorsement of Labour policy. It is in the context of long-running debates between both parties represented here this afternoon about worker and shareholder democracy that we are considering the draft regulations.

We do not oppose the draft statutory instrument, but we do not think it goes far enough in tackling the gap between the high pay of a handful of senior executives and the pay of everyone else.

The Institute for Public Policy Research North report that was published yesterday was a timely reminder of the income inequality that sees one in four workers in the north of England being paid less than the living wage, with many worse off than 10 years ago. Similar challenges and income inequalities exist right across the country.

The draft regulations state that the directors’ remuneration report must be made available, free of charge, on the company website for 10 years, showing any split or fixed and variable payment to directors. Crucially, reports must compare the annual change in directors’ pay with the yearly change in the pay of company employees, including over a five-year rolling period.

That sounds broadly fine but, as noted by the Secondary Legislation Scrutiny Committee and the House of Lords, the directive and draft regulations introduce other responsibilities that cut across a wide range of bodies, both departmental and non-departmental. The Minister referred in her opening remarks to those measures relating to the Treasury, the Financial Conduct Authority and the Department for Work and Pensions. When she responds, will she update us on whether other Departments will need to introduce regulations and, if so, when we can expect to see them? I ask that because the deadline to incorporate the EU directive into UK law is 10 June, so if additional regulations are required the Government will have to get a move on. That also gives rise to the question as to why it has taken until today to bring these draft regulations to Committee. Were the Government anticipating a no-deal Brexit, which would have resulted in the draft regulations not being transposed?

The essay crisis Prime Minister left office after the 2016 referendum. In his absence, I wonder if he has been replaced by an essay crisis Government. Looking at the former Minister, the hon. Member for Watford, who is sitting opposite me, perhaps I am on to something.

The High Pay Centre report shows that the Government urgently need to do more. It shows that between 2014 and 2018, the first full five years of the “say on pay” regime introduced by the coalition Government, every single FTSE 100 company pay policy put to annual general meetings was approved by shareholders. Across more than 700 pay-related resolutions voted on at AGMs over the same period, the average level of shareholder dissent was just 8.8%, and only 11% of pay-related resolutions attracted significant dissent levels of over 20%.

The intervention by my hon. Friend the Member for Slough about the challenge posed by the disengagement of owners and shareholders of large corporations is particularly pertinent. He asked how the draft regulations address the gap between top executive pay and everybody else’s, as well as the gender pay gap. The Minister has indicated, as do the draft regulations, that information is provided. What is not provided is a way not just to change the culture of shareholder disengagement, but to create a regulatory environment or teeth to address the challenge and difficulties presented by both the pay gap and the gender pay gap.

[George Freeman]

Does the hon. Gentleman agree that it is important to look not only at the gap between the highest and lowest paid in a company, but at the extent to which remuneration is linked to company performance overall, and the extent to which those who are being rewarded are being rewarded for taking risks and delivering above-trend growth? Does he also agree that we should look at the broader issue of wider share ownership in a company? Inequality in itself is not necessarily a problem, provided that the people who are lower paid are benefiting from the success of the company. Does the hon. Gentleman agree that that is as important a metric?

[Bill Esterson]

That is a very good challenge. Julian Richer is a responsible employer who has treated his employees very well over many years. He is giving a £1,000 bonus to each staff member and delivering an employee-owned future for the business.

One of the historical problems with the regime of rewarding performance is that it has rewarded apparent immediate success without taking the longer term into account. There have been scandals over many years, with some senior executives raking in enormous bonuses only for us to discover later that the apparent success of the organisations they ran was built on sand and that the true underlying performance was not reflected in the short-term results. We can all think of some very high-profile examples; Enron is one, but there have also been many in this country, which I deliberately will not mention at this stage. The hon. Gentleman’s challenge is an important one, but we have to make sure that any executive remuneration is truly fair over a longer period.

To be fair to the hon. Gentleman, I think he accepts the wider point that fair pay must reflect the contributions of people throughout the organisation. There is a degree of consensus that it is extremely important for the relationship between the pay of senior executives and that of others in the organisation to be fair and balanced, difficult though attempts to achieve that may be. I welcome this debate and the fact that the draft regulations address the matter, but the question is how much further we need to go and what steps we must take to maximise the potential benefits.

When the current Prime Minister took over, she made an initial commitment to put workers on boards, but it was very quickly downgraded and appears not to have advanced. Perhaps the Minister could tell us when those sorts of measures might be introduced.

Following on from the intervention from the hon. Member for Mid Norfolk, what is the most effective way to bring up the pay of working people and combat rising inequality? The answer is to join a trade union. The Government have failed to move beyond the union-busting mindset—that is obvious from their Trade Union Act 2016—and to look to a future that involves unions and employers working together responsibly. The Institute for Public Policy Research has shown that there is a strong correlation between high shares of income going to the top 1% of earners and low trade union membership.

[Richard Harrington (Watford) (Con)]

I dealt with a lot of trade unions and companies in my time as a Minister. I was extremely impressed by the good relations between them in areas of the country where there has been a lot of strife in the past, for example in car manufacturing and other manufacturing industries. Does the hon. Gentleman agree?

[Bill Esterson]

When the hon. Gentleman was a Minister, I always enjoyed our exchanges and felt that he was sympathetic on this agenda—I mentioned that consensus. Unfortunately, Government action has not kept up with the good intentions that he highlights. He is quite right: where there are good trade union relationships with management—the car industry is a prime example—we have seen increases in productivity and worker pay, and success for businesses and workers alike.

According to the International Monetary Fund, the economies characterised by free collective bargaining, with strong trade unions and good partnership-working models, are the wealthiest, most productive and most successful. Sadly, in organisations without trade unions, where workers have less power, the richest get richer and the workers do not. The figures from IPPR North tell a story about a decline in incomes and a rise in pay inequality, particularly in the north of England, which is the part of the country that I represent.

We will not oppose the draft regulations, but this is an opportune moment to remind the Minister of Government promises and of the need to go much further. If the Government are serious about curbing excessive power, worker representation on boards and—as the Prime Minister told us a few hours ago during Prime Minister’s questions—the importance of trade unions, and if the Prime Minister meant what she said on the steps of Downing Street about putting the Conservative party at the disposal of working people, they must prove it. They must go much further and invest in all of the people of our country, not just the very wealthy—invest in the future, not the past.

Draft State Aid (EU Exit) Regulations 2019

Bill Esterson Excerpts

Wednesday 10th April 2019 General Committees

[Bill Esterson (Sefton Central) (Lab)]

On a point of order, Mr Hanson. We appear to be missing a crucial piece of information in the guise of this letter from the Secretary of State, which would resolve this discussion once and for all. Should we now adjourn while the Minister gets her hands on that letter, and ensure that all Committee members have a copy?

[The Chair]

I am grateful for your point of order, Mr Esterson. The documents before the Committee are the draft State Aid (EU Exit) Regulations 2019 and the accompanying explanatory memorandum. If there is Government correspondence relating to the content of those documents, that is a matter for the Minister to explain to the Committee, but it is not seminal to the draft regulations before us today.

--- Later in debate ---

[Bill Esterson]

It is always a pleasure to serve under your chairmanship, Mr Hanson, given your formidable expertise and experience, which you demonstrated in response to the points of order.

The Minister rightly made clear the importance of the draft regulations. Given the number of these SIs that are being debated in the main Chamber, it is highly odd that something so important, detailed, extensive and far-reaching, with so much impact on all our constituencies up and down the country, is not. However, there is nothing I can do about that. All I can do is make my comments and present my analysis in this forum.

[Andrew Griffiths]

Given that we are just transposing the current EU regime into UK law and providing for the CMA to take over from the Commission, can the hon. Gentleman tell us what the Labour party would do differently?

[Bill Esterson]

The hon. Gentleman tempts me down various different routes. I shall come to how the Government have diverged from their normal practice of straight transposition with these regulations. That applies particularly to the debate we had about the devolved Administrations. These regulations do not follow the normal pattern, as will become clear as I set out my argument.

State aid plays a vital role in our economy. Ensuring that we have a functioning state aid regime means that putting in place regulations that deliver exactly what is needed is very important. It is therefore essential that we carry out the detailed scrutiny this afternoon in the same way that the Lords did on 14 March. Given the scale of the regulations and their far-reaching nature, I will put on the record our concern about whether we have been provided with sufficient evidence of whether they deliver the technical details required for a functioning state aid regime that supports our economy and communities up and down the country. We will, however, do what we can to tease out some of the concerns that we have been able to identify about the technical nature of what is being proposed.

This set of regulations comes to 80 pages. I, and other Members, have been on Public Bill Committees that have been allocated many days, if not weeks, to consider far shorter Bills with line-by-line scrutiny, quite often following pre-legislative evidence sessions from expert witnesses. Yet we are given 90 minutes, of which about 64 remain, and we will have to do our best to identify the key areas for such scrutiny. It is a most unsatisfactory situation, but we will do what we can.

[John Mann (Bassetlaw) (Lab)]

I hear that we may be free next week. Will my hon. Friend propose that the Committee adjourn until then, so that we can sit throughout the week in order to do the necessary, detailed line-by-line scrutiny—a proposal that I would be totally in accord with?

[The Chair]

Order. Just for your information, Mr Mann, whether the Committee is adjourned or not, it can last only an hour and a half, come what may—and we have already had 27 minutes.

[Bill Esterson]

Fortunately, Mr Hanson, you have answered my hon. Friend’s question very well. I think his point was that we are really not doing this justice, and are not in a position to do so. However, we will do what we can.

Paragraph 2.1 of the explanatory memorandum describes what the regulations do. It says:

“The overall effect is to transpose the EU State aid regime as set out in Articles 107 and 108 of the Treaty on the Functioning of the European Union (TFEU) into domestic law and give the Competition and Markets Authority…the function of regulating the regime in place of the EU Commission”.

Paragraph 2.2 says:

“State aid is support in any form (financial or kind) from any level of government which gives a business or another entity an advantage that could not be obtained in the normal course of business. State aid is governed by Articles 107 to 109 of the TFEU—and a number of EU regulations made under those TFEU Articles. Article 107(1) defines State aid and sets out the general prohibition on giving aid. The prohibition operates by effectively providing that aid is incompatible with the internal market insofar as it affects trade between Member States unless the aid has been approved by the Commission.”

However, the proposed regulations apply only to aids that affect trade between the UK and the EU. That on its own is somewhat odd, as it applies in the event of a no-deal Brexit, when we would be a third country, with no agreement with the EU and no prospect of reciprocal arrangements. Certainly none would be in place. Under no deal, aids in the EU that affect trade between the EU and the UK will not be subject to article 107 and 108. On subsidies, EU rules are much more stringent than those of the WTO, so in the light of the Treasury’s own estimates of serious contraction of the economy, it is of real concern that the Government are limiting their ability to stimulate the economy through the use of state aid, by retaining EU restrictions on its application. [Interruption.] I am starting to answer the question from the hon. Member for Burton, and there is more to come that will address his points.

What will the state aid regime post Brexit mean in practice? Paragraph 2.8 of the explanatory memorandum refers to postal services and rural transport. Will we see additional support for our post offices? That is part of the Minister’s brief so she should be able to answer that. Sadly, post offices continue to close, despite her protestations that she has done a deal with WHSmith.

Our towns and villages, many of which do not have access to the internet, depend on post offices. Those who rely on cash, including many smaller businesses especially, need a full postal service system. Labour’s plans for a full postal bank network would be allowed under the draft regulations, so why not adopt it, to the benefit of residents and businesses? That is entirely what the exemptions covered by the regulations anticipate. I live in hope for the Minister’s answer. The draft regulations show that she could intervene far more extensively if she wished, and I hope that she will take the opportunity to do so.

Similarly, will we see better rural bus services? My constituents would certainly welcome such Government intervention, rather than allowing private bus companies to continue to cherry-pick routes and leave those in rural communities with inadequate or non-existent public transport.

[The Chair]

Order. It would really help the Committee if the hon. Gentleman at least said “The State Aid (EU Exit) Regulations 2019” when making his points. We can use examples but we have to keep the meat of the discussion on the document before the Committee.

[Bill Esterson]

Absolutely, Mr Hanson. I quoted paragraph 2.8 of the explanatory memorandum for the State Aid (EU Exit) Regulations 2019, which refers to support for postal services and rural transport as examples of services of a general economic interest that are covered by the regulations. I was using them as an example. I am glad that you asked me to clarify why I was doing so and are happy that I have done so.

Paragraph 2.13 of the explanatory memorandum refers to the operation of a functioning state aid regime. It says:

“This is important to give certainty and continuity for business, to prevent distortions of competition and to ensure that less prosperous regions of the UK are not disadvantaged by support provided in wealthier regions.”

That point was alluded to by my hon. Friends in their interventions. Does that commitment to provide support for our less prosperous regions mean that the Government will invest to replace the money that is currently delivered by the EU to areas such as the Liverpool city region? That area has historically benefited from European Union funding under the European regional development fund and similar programmes, which is the kind of investment in infrastructure and skills that my constituents have needed and will continue to need.

Such investment has delivered both success for businesses and high-skilled and well-paid jobs in the regions and nations of the UK. The explanatory memorandum’s reference to having a functioning state aid regime in place is a reminder that the Government need to continue such support once we have left the EU—from day one of the application of the regulations, without a gap in between. I would be interested to hear what the Department has in store to ensure that there is no gap between European funding and national funding.

[Martin Whitfield]

Before my hon. Friend progresses through the explanatory memorandum, may I draw him back to the extent and territorial application of the statutory instrument? We talked earlier about the negotiations with the devolved Administrations, and the Minister said there was some concern—I apologise if I misquote her—about the quality of the discussion. Will my hon. Friend set out his understanding of how the devolved Administrations view the statutory instrument? Is he able to enlighten the Committee on that?

[Bill Esterson]

My hon. Friend is quite right to pursue that point further. I prepared a section of my speech on that, and I will pick up his point in detail when I reach it. I have identified some additional points from what he said earlier and the Minister’s reply.

Paragraph 6 of the explanatory memorandum covers the legislative context. It lists no fewer than 14 pieces of legislation affected by the regulations and underlines just how much of a challenge it is for the Committee to scrutinise these changes, which are vast in scale and have far-reaching consequences. The volume of legislation listed in paragraph 6.4 demonstrates why it simply is not possible for us to say whether the regulations deliver the technical changes the Minister claims are being made. It is not that she is wrong; it is that I have no way of telling whether she is right or wrong. That is an important distinction. [Interruption.] I am perfectly capable of reviewing the legislation, as the hon. Member for Burton points out. Unlike him, I do not have the legal background—

[Andrew Griffiths]

indicated dissent.

[Bill Esterson]

Oh, the hon. Gentleman does not have a legal background either—never mind. We are in danger of being diverted again.

In paragraph 6.10 of the explanatory memorandum, the Government say they will rely on EU case law in their application of state aid rules, but there is legal opinion that we may have to rely on case law from before we joined the EU—this point was picked up in the Lords—as we will no longer be bound by the treaties of the EU. That may be tested in the UK courts, and it may take years to resolve. That has been the case with other regulations passed in Committees like this, and Ministers have not been able to give a satisfactory answer—presumably because there are conflicting legal views about how it would be resolved. Before we joined the European Union, there was of course no comprehensive state aid regime to regulate what was and was not permitted, so the difference between the two options is very significant.

The information provided to us does not give us the evidence we need to make a reasonable judgment about the technical adequacy of the regulations. For a simple example of that, I refer Members to paragraph 6.14 of the explanatory memorandum. I have no doubt about the need to omit specific references to Germany in article 107(2)(c) of the EU regulation, but I also have no way of knowing whether such a technical change is appropriate. More to the point, we have no way of knowing whether all the necessary technical changes of a nature similar to those identified in paragraph 6.14 and a number of other paragraphs have been made.

A further example of our inability to form an opinion can be found in the wording of paragraph 6.28, which states that

“a large number of deficiency corrections were required to make the Procedural Regulation operable in a domestic setting.”

The explanatory memorandum does not describe in detail what that large number of deficiency corrections is, it does not say what the evidence base is for asserting the need for those corrections, and it does not give back-up expert witness evidence in support of that assertion. That sentence is a pretty fair indication that we have an impossible task and are being asked to approve something with a clear lack of evidence to support doing so.

The CMA is being asked to take on responsibility for oversight of the state aid regime from the European Commission. In paragraph 7.2 of the explanatory memorandum, the Government refer to

“the costs and benefits of setting up a completely new body or having an established regulator take this on”.

I note the information before us does not give the details of that cost-benefit analysis or why the decision was taken to choose the CMA rather than setting up a new body.

That takes me back to the points made in earlier interventions about the devolved Administrations. Paragraph 10.1 refers to the discussions with the devolved Administrations and the CMA. It sounded to me in those earlier exchanges as though the Minister was in danger of being right in the middle of a constitutional crisis. Without publication of the Secretary of State’s response to the letter from the Welsh Government, this dispute has not been resolved to anybody’s satisfaction. How can we judge what the outcome is or should be without sight of that response?

[Kelly Tolhurst]

I would like to clarify what I said earlier on that particular point, where I alluded to the fact that the Secretary of State had responded. I understood it to mean a letter that had been sent to the Secretary of State earlier in the year, which is known and has been published. I had not appreciated that the letter that the hon. Gentleman referred to was the letter sent to the Lords Committee, which my hon. Friend Lord Henley of the other House will respond to. I hope to clarify that point, since the hon. Gentleman raised it.

[Bill Esterson]

I am grateful to the Minister for that intervention, which tells us that we have not had the response from the Secretary of State. I am pleased that we got that on the record.

The Secondary Legislation Scrutiny Committee (Sub-Committee B) report, published on 7 February, refers to this issue and asked

“whether the Devolved Administrations were content with the approach”.

It is pretty clear that there has not been an answer to that question, let alone the more detailed letter published as evidence given to that Committee, which my hon. Friend the Member for Blaenau Gwent quoted from earlier and which I will quote from in more detail now. Not only are those responses not recorded, but it does not appear they have been made.

[Nick Smith]

I think what we heard from the Minister in her intervention on my hon. Friend was that the Government have still not published their legal position on this matter. We have all been effectively waiting for it for two months. Can he try to elicit from the Minister when we are likely to see that legal position made clear?

[Bill Esterson]

That is absolutely the right question to ask. I will just make clear exactly what questions we want answered by quoting from the letter published on the website as evidence to the Secondary Legislation Scrutiny Committee, which raised significant concerns:

“These Regulations transfer functions to non-devolved public authorities, namely the Competition and Markets Authority and the Secretary of State”—

we will come back to him later—

“and giving functions to non-devolved public authorities restricts the legislative competence of the National Assembly for Wales.”

It also said that

“there is the added problem that the Welsh Government and the UK Government disagree as to whether State Aid is devolved”,

and quoted the advice of the Welsh Government Counsel General, which said:

“‘The Welsh Government’s position is that State aid is a devolved matter and not a reserved matter under any heading of the Reserved Matters Schedule in the Government of Wales Act 2006. However, the UK Government do not consider it as such’”—

the Minister has made that point already—

“‘(as was noted in the Intergovernmental Agreement) and therefore they have not requested Welsh Ministerial consent. The Welsh Government has requested from the UK Government, an explanation of their legal position but there has been no response.’”

As we have just confirmed, that is still the case.

The Welsh Government go on to say:

“The approach being adopted by the UK Government therefore appears to be a breach of paragraph 8 of the Intergovernmental Agreement”

on the European Union (Withdrawal) Act 2018, which states:

“The UK Government will be able to use powers under clauses 7, 8 and 9 to amend domestic legislation in devolved areas but, as part of this agreement, reiterates the commitment it has previously given that it will not normally do so without the agreement of the devolved administrations. In any event, the powers will not be used to enact new policy in devolved areas; the primary purpose of using such powers will be administrative efficiency”.

It is pretty clear that the Welsh Government think this is a matter significantly beyond administrative efficiency. They say:

“In reaching this view we also note that the UK Government has not responded to the Welsh Government’s request for an explanation of their position that State Aid is a reserved matter.

In his letter to us”—

the Welsh Government—

“the Counsel General has confirmed that the Welsh Ministers do not intend on granting to the UK Government unilateral consent for these Regulations.

It is our understanding that discussions between the Welsh Government and the Secretary of State for Business, Energy and Industrial Strategy are ongoing.”

I understand that the Scottish Government have similar concerns, but I have been unable to find public confirmation in writing. Perhaps the Minister will be able to clarify one way or the other—I do not think we quite got that from her earlier.

I mentioned the phrase “constitutional crisis”. I do not know whether that is a fair representation or not, but it sounds pretty serious to have such substantial disagreement. Given the seriousness and the importance of these regulations, I suggest that it would have been extremely beneficial to have resolved this before it came to the Committee.

Paragraph 10.2 of the explanatory memorandum refers to the August 2018 technical notice and discussions with a variety of stakeholders, including the Confederation of British Industry and the Federation of Small Businesses. The responses to the technical notices have not been published with the explanatory memorandum. Paragraph 12.3 states that

“the instrument will not have a significant impact on business.”

From this discussion so far, it is pretty clear that how the CMA chooses to operate the state aid regime, and how funding to the regions and nations of the UK is operated—for example, to replace ERDF funding—will have an enormous impact on business and the economy, as well as on our constituents in the poorer parts of the country.

The Minister might wish to comment on what I have already said, and I also have a number of questions for her. She said earlier that the CMA has expertise, but these are entirely new responsibilities. Hence I referred to the cost-benefit analysis of whether a new body should be created or whether these powers should go to an existing organisation. The decision was taken to give them to the CMA, which is taking on the role of national regulator in addition to its significant current responsibilities.

How are the preparations going for the CMA to take on those new responsibilities? How many staff have been recruited? Has it even been possible to identify the necessary staff with the skills, experience and expertise needed to fulfil the functions required under those new responsibilities? Does the CMA have the capacity to discharge these new duties? Why have the Government chosen to significantly expand this agency in London, missing the opportunity to support the economy across the country? This is a form of state aid, is it not? We might think it ironic that we have regulations on state aid but the Government have chosen not to use such an opportunity to support the economy and jobs in other parts of the country.

Is there a plan to review how the existing state aid guidelines operate in a UK-only context once the new regime has been set up? What will be the engagement and involvement of the devolved Administrations according to the Government’s plan, notwithstanding the fact that the way this is addressed has yet to be resolved? What is their plan on the involvement of local and regional government, industry bodies, trade unions and civil society?

The Secondary Legislation Scrutiny Committee not unreasonably asked for clarity on whether primary legislation would be needed to introduce state aid, and under what circumstances that might apply. This is referred to in a number of places in the explanatory memorandum, including in paragraph 7.6. I should be grateful for clarification from the Minister on what certainty exists around the regime that is being created by these regulations and whether, given the complexities involved, these regulations are in fact inadequate. As the explanatory memorandum says, primary legislation is needed. When will that legislation be introduced? Perhaps she can tell us of any plans to do that.

Will the CMA retain the strict EU interpretation of state aid rules or allow a loosening of them to enable support for the economy, not least given the loss of EU funding and those Treasury forecasts of economic contraction after we leave the EU? If that is not to happen, why are the Government not moving straight to a less strict system, as covered by WTO rules, rather than via this halfway house given that we will no longer be governed by EU state aid rules once we leave? Usually the answer to such questions is that this is because under the withdrawal Act these regulations are deliberately limited in scope, but if that is true, why are the Government not complying with the withdrawal Act in respect of competences and the devolved Administrations, as I think we have demonstrated in some detail—it is certainly the opinion of the Welsh Government from the letter that I quoted earlier? It seems that the Government are content to follow the process of creating SIs when it suits, but not with any consistency. Again, the oversight appears to be of concern, as so often with this Government. The Secretary of State will have oversight day to day, but Parliament will have to wait to receive reports from the CMA. Perhaps the Minister can spell out the system of reporting to Parliament.

Then there is the consultation by the CMA itself, which ended on 18 March. Would it not have been a good idea if, along with the response to the Welsh Government, we had been shown the responses to that consultation before considering this instrument? We know the Government have been struggling with consultation and impact assessments, and ensuring that all regulations are in place on Brexit day, whenever that is, but for this SI there is the additional concern that there is a massive economic imperative, the need for state aid support across the country, and for the replacement of significant investment in communities such as the ones that my hon. Friends and I represent. The concerns about CMA capacity and expertise, and the uncertainty about whether primary legislation will be needed and about overreach into devolved national competences, are therefore all of real concern. The lack of expert evidence is especially important, on a subject that is so significant to our country, our economy, our constituents and our communities.

I am afraid that the way this matter has been addressed suggests a lack of understanding or interest from the Government on state aid. UK state aid is less than a third, proportionately, of the scheme in Germany, and slightly more than half that in France. The Government did not support Sheffield Forgemasters in 2010, and abandoned Labour’s plans to do so. They failed to ensure that contracting supported domestic train manufacturing at Bombardier and steel production at SSI, and stopped the EU using trade remedies to defend our steel industry in the 2015 steel crisis. We know the Government’s attitude to state aid. Sadly, their casual approach with the regulations shows that they are ill prepared for Brexit. Yet again they are failing to support industries, economies, jobs and communities across the country.

It is entirely understandable that our Labour colleagues in the House of Lords tabled a motion of regret that the draft regulations were not accompanied by a strategy for consultation on the use of state aid after the UK has left the EU. I entirely agree with their lordships. The entirely unsatisfactory approach to engagement with the Welsh and Scottish Governments further reinforces the perception that the Lords were absolutely right in their regret of the way that the regulations have been handled.

--- Later in debate ---

[Martin Whitfield]

It is a great pleasure to serve under your chairmanship, Mr Hanson, and to follow my hon. Friend the Member for Bassetlaw. I will take a couple of minutes to explore the situation around devolved authorities and this statutory instrument. I will focus on Scotland, from which, if I understand my hon. Friend the Member for Sefton Central correctly, there has been no formal response, but where there is great disquiet about the direction of the SI.

[Bill Esterson]

I have no way of knowing whether there has been a formal response, because the Government have not published anything.

[Martin Whitfield]

I am grateful for that clarification. I understand the Government’s position: they say the matter is reserved, for which the authority is the “Frameworks Analysis: Breakdown of areas of EU Law that intersect with devolved competences in Scotland, Wales and Northern Ireland” from 9 March 2018; but under the devolved model in Scotland, everything not in the schedule to the devolution Act is devolved to the Scottish Parliament. Where in that schedule is the matter reserved to this place?

[Kelly Tolhurst]

It is great to be able to answer a few of the questions put to me. I have faced the hon. Member for Sefton Central in Committee several times in recent weeks, but I hope that earlier he was not questioning my integrity by not understanding or believing what is in front of him. I hope he accepts that I always try to answer the questions as openly as they are put to me.

[Bill Esterson]

On a point of order, Mr Hanson. I am sure that had anything disorderly taken place or the suggestion the Minister just raised been made, you would have intervened and stopped it. May I have your confirmation that that is what would have happened, and that as it did not, nothing disorderly happened earlier?

--- Later in debate ---

[Kelly Tolhurst]

My hon. Friend makes a fair point.

In many of our debates on no-deal regulation, the fact that we are where we are regarding the powers in the withdrawal Act and bringing in retained European law through secondary legislation has been a bone of contention for the hon. Member for Sefton Central. I understand that he wants further scrutiny, but I assure him that the reason we are here today, dealing with a no-deal SI, is that we are retaining EU law and bringing it over so that in the event that there is no deal on exit day, we have a functioning domestic regime. The regulations have been laid and there have been opportunities to read and examine them. I do not believe that the Government in this case are shirking their responsibilities or not giving Parliament the opportunity to scrutinise. We have been debating for an hour in this Committee. The withdrawal Act does not allow us to make big policy changes; we can make the changes required. We are debating a no-deal SI, which will come into effect if we leave the European Union with no deal. If we can reach agreement on a deal, the regulations will not be relevant.

[Bill Esterson]

That is interesting. I read the regulations and the explanatory memorandum in some detail several times. Although the Minister is right that the regulations will apply in the event of no deal, it is pretty clear that they will also apply if there is a deal. Indeed, I checked this point with the Library, and the regulations will apply whatever the arrangements for our exiting the EU. Will she confirm that that is the case?

[Kelly Tolhurst]

The hon. Gentleman makes a good point. If we entered into an agreement, we would go into an implementation period, and we would be bound by EU rules as they stand until the end of that implementation period. In any arrangement for our future relationship with the European Union, state aid would be subject to debate and to further negotiation and agreement. It would not be right for me to anticipate that. I am here to talk about a no-deal scenario and the legislation in front of us.

On the hon. Gentleman’s shopping list of state aid requirements—the things he would like to spend money on—I point out that the Post Office effectively does receive state aid. We subsidise the Post Office. We have maintained our network of 11,500 post offices, unlike previous Governments, who have undertaken programmes of closures. I am proud to stand here as the Minister responsible for post offices and say that the Post Office is in a much better place financially than it has been for many years. We are committed to delivering postal services in rural areas, and there are a number of funds to support that. I am determined that that will continue under these regulations.

It is a matter for debate whether, how, where and how much money will be granted to other worthy schemes. It is not for us to decide today which schemes and which parts of the country will receive additional funding. This debate is about the regulations—the rules—and how those decisions will be made. I understand the hon. Gentleman’s wants, but this debate is about the rules for agreeing or disagreeing.

The hon. Gentleman spoke about support for the regions. As he will know, the regional growth fund and most of the regional support funds granted through state aid are covered by the block exemption regulations, so these measures do not stop the Government supporting local communities and regions where required. This Government operate a successful industrial strategy and are determined to continue to invest in research and development, regional growth and opportunities, particularly for small and medium-sized enterprises. Let us not forget the funding available from the British Business Bank, which is an example of where those regulations have been used to benefit SMEs and provide access to finance.

On the devolved Administrations, I repeat that the Government consider the regulation of state aid to be reserved to the UK Government. However, individual choices about how and when to give aid within that framework are for public authorities, including devolved Administrations, to make. The devolved Administrations will have full autonomy in state aid case management and in dealing with the CMA. As I outlined, I recognise that there is a difference of view about whether the regulation of state aid is a reserved matter. However, given that the UK Government are closely aligned with the devolved Administrations on the substance of the policy, and given the limited scope to depart from mirroring the EU regime using powers in the regulations, it is not necessary to resolve that question now. The Government will continue to work closely with the devolved Administrations on the development of state aid policy.

--- Later in debate ---

[Kelly Tolhurst]

As I have outlined, we expressed our belief in the intergovernmental agreement on the withdrawal Act that state aid is a reserved matter. That is our opinion, as I have said a number of times. It is not for the Committee to debate whether we were in the right when we expressed that position. The SI in front of us concerns a UK-wide regime. It is a no-deal SI that transposes EU law into UK law and remedies the deficiencies within that law for the UK domestic system, so that if we leave the European Union with no deal we have a functioning state aid regime, which is extremely important for us to trade with the European Union without a deal. If we leave without a deal, businesses will still want clarity over trade opportunities with the European Union. Therefore, the regulations are an important part of ensuring consistency and continuity for the business community and aid givers.

[Bill Esterson]

I will repeat part of the quote that I read out from the Welsh Counsel General about clauses 7 to 9 of the withdrawal Act. It relates to the inter- governmental agreement that the Minister has just referred to, and states that

“the powers will not be used to enact new policy in devolved areas; the primary purpose of using such powers will be administrative efficiency”.

I put it to her that this is a million miles away from being just about administrative efficiency. By any definition, this is about new policy in devolved areas.

[Kelly Tolhurst]

I thank the hon. Gentleman for that, but the SI does not create new policy; it relates to retained EU law. As I said, if there are any future changes on state aid—I cannot answer hypothetical questions about what might be coming in future—we will continue to consult and work with the devolved Administrations. If we reach an agreement to leave the European Union with a deal, the devolved Administrations will have a greater opportunity, as outlined by the Prime Minister, who has been very clear that she wants to work with them on formulating the future relationship.

I reiterate that this would be a UK regime. The devolved Administrations would still be able to act as aid givers and make those decisions on where they want to put that aid; they will just have to notify the CMA rather than the European Commission. I highlight the fact that a number of aid options are covered through the block exemption, which I have already outlined; as I said in my opening comments, that covered 97% of the state aid given in the UK in 2017. I therefore believe that the regulations we have before us are sensible, valid and definitely required if we leave the European Union with no deal.

The hon. Member for Sefton Central also asked whether the CMA is the correct authority to take on the state aid function, and why another regulator would not be set up. Let us be clear that the CMA has an international reputation and is extremely well respected for the work it does within competition and markets. It also has relationships throughout the international community. I am absolutely assured that it is the right organisation to take on this function, because of its expertise, the respect it commands and its understanding of competition, which will enable it to ensure fairness while being able to guarantee that state aid is administered without restricting competition or giving unfair advantage. That goes to the heart of what our state aid regime will be. In my view, the CMA is the right organisation to take that on and it has the necessary expertise, so there is no need to create a new regulator.

The hon. Gentleman also asked how the CMA’s preparations are going. I have outlined already the funding that has gone to the CMA to enable it to prepare. I reassure him that we are indeed looking at the devolved Administrations; that is why the CMA has been strengthening its Edinburgh branch—it is expected that some state aid work will be happening in Edinburgh. I assure hon. Members that the CMA has done a great job so far with its recruitment and getting the numbers of people that it will require in place before exit day to manage the new state aid regime. There are only 24 people left to recruit and the CMA has made great strides in that respect.

The hon. Gentleman also talked about the guidance that is being reissued. The guidance that will be provided by the CMA on approving state aid will be issued prior to exit day. He talked about primary legislation and where the Secretary of State will be able to—[Interruption.]

--- Later in debate ---

[Kelly Tolhurst]

The hon. Member for Sefton Central mentioned paragraph 7.6 of the explanatory memorandum. He read out the passage relating to how the Secretary of State would enact primary legislation. The Secretary of State would do so, in the event that the state aid rules were too restrictive, to provide any state aid that was required. That would rarely be used, but it is an option detailed in the explanatory memorandum.

The hon. Member for Bassetlaw mentioned the motion of regret that was moved in the other place, which focused on the provision of aid rather than the rules governing it. It is important to note that the motion was withdrawn and not divided on. I want to touch on his comments about state aid and the WTO. I understand that he is a great supporter of Brexit and that he might have concerns about this SI. I would like to explain that we have a set of rules here that relate to a no-deal situation. I want to reassure him that the state aid rules in front of us, and the European rules as they stand, have vast flexibility. Over the past 40 years, we have had only six negative judgments against the UK. The decision on whether to offer state aid is a matter for the Government of the day. The regulations before us have not been a barrier to the use of state aid, and they have not restricted our ability to fund the British Business Bank or other projects.

With regard to WTO rules, there are rules that would still need to be adhered to. These regulations would obviously help us establish a future trading relationship with the European Union, and it would be helpful to us to have a clear regime in place, so that the European Union could have confidence in our ability to offer that trade. Quite rightly, as we would be a third country, WTO rules would still be used. They do not necessarily offer us any better protections or give us more flexibility in the long run, but I understand the concerns of the hon. Member for Bassetlaw.

I think I mentioned earlier that WTO rules do not stop any Government nationalising a service; the rules stop them paying more than the market rate for a particular asset. By the Opposition’s admission, they would like us to have a deal with the European Union rather than to go into a no-deal situation, so I would have thought that the Opposition would welcome these regulations to give assurances. Indeed, were we to move to a customs union—the policy favoured by Opposition Front Benchers and their leader—there would need to be some kind of state aid regime.

I could keep rabbiting on forever about state aid. We need to provide continuity and certainty for public authorities that grant state aid and their beneficiaries. This approach will maintain business confidence, particularly in the event of the UK’s leaving without a deal. The regulations safeguard competitiveness, and I commend them to the Committee.

[Bill Esterson]

On a point of order, Mr Hanson. In the light of the Minister’s inability to deal with the point about the response from the Welsh Government to the Secretary of State, is there a way for the regulations to be further debated on the Floor of the House as part of their passage? That would give the Minister time to get us the answers to that question and others, because this is very unsatisfactory.

[The Chair]

Order. This Committee is the opportunity to consider the regulations. The hon. Gentleman can vote for or against the motion, and they will be reported to the House for approval in due course.

Question put.

Exiting the European Union (Consumer Protection)

Bill Esterson Excerpts

Tuesday 2nd April 2019 Commons Chamber

[Bill Esterson (Sefton Central) (Lab)]

I thank the Minister for her opening remarks. She set out exactly what the existing regulations do and, to be entirely honest, what she is proposing in the case of no deal makes perfect sense. The regulations before us revoke the existing regulations that prevent undue discrimination across the European Union by the blocking of consumers in one country from accessing websites in another member state or by redirection to the member state of the consumer.

A number of questions arise from the Minister’s remarks and from at least one of the interventions she took. She spoke about the fact that these regulations are relevant only in the event of no deal. When she responds to the debate, will the Minister confirm that, if a deal is agreed, the Government have no intention of revoking these or similar regulations? She is engaged in a conversation at the moment, so I hope she heard that question.

My hon. Friend the Member for Coventry South (Mr Cunningham), who is no longer in his place, asked the Minister a very good question about how UK consumers will be protected in the event of no deal. His question highlighted just how important it is that we do everything in our power, particularly in these next 10 days, to avoid the disaster of crashing out with no deal. That is the best way in which to avoid having to revoke the regulation.

[Kevin Foster (Torbay) (Con)]

The shadow Minister has said that we need to do everything in our power to avoid the UK crashing out. Does he agree that voting for the withdrawal agreement would be the best way of doing that?

[Bill Esterson]

I think the hon. Gentleman is wandering a little from the issue under discussion.

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

I think he is trying to tempt you.

[Bill Esterson]

I think he might be. Suffice it to say that that deal has been rejected three times, on the first occasion by the largest margin by which a Government have ever been defeated in the known history of Parliament. Quite apart from the undesirability of what is in that deal, I think we should probably move on. I have a sixth sense that it will come back for fuller debate on another occasion.

The Minister made a very strong case for cross-border co-operation, for maintaining the regulation and for a mutual recognition agreement so that we can maintain protections for consumers and businesses. I hope she will confirm that when she responds to the debate.

I am not able to confirm with absolute certainty that the revocation will deliver what the Government intend it to do. We have to accept the Minister’s word that it will do so. I have no reason not to accept it, but I do not have the technical expertise. The papers in front of us do not allow me to say any more than that, so I have to put on the record my reservations and those of my party. As ever with the statutory instruments we are being asked to approve, there is no impact assessment. The lack of published consultation responses also makes it that much harder for us to analyse what we are being asked to approve.

Businesses and consumers need confidence and certainty. I note from the explanatory memorandum that a number of business organisations were consulted. Perhaps the Minister could provide more detail on what they said. She has done so on previous occasions, so I look forward to hearing what was said in those consultation discussions.

The regulations that we are being asked to revoke are designed to prevent discrimination based on location. They exist to stimulate the internal market of the European Union and to support the free movement of goods and of free trade through the digital sector. They address the possible restriction on competition between businesses across the European Union market and ensure that consumers have access to the best offers, prices and conditions of sale. They do not limit trade for consumers to goods and services in their own country—that is a very important distinction—and that is precisely what has happened since the regulations were introduced at the start of last year. They also prevent website redirection away from businesses that are not in the consumer’s member state.

If we leave with no deal, the draft regulations will revoke the geo-blocking regulation completely. No deal would end the protections for UK businesses and consumers, as they would not be protected in the European Union. The Minister set that point out very well in her opening remarks. As she said, retaining the regulation in the UK would mean that we could be blocked but would not be able to block against discriminatory practices from within the European Union. Those points are well made in paragraphs 2.4 and 2.5 of the explanatory memorandum. Paragraph 2.4 makes the point that

“if we did not revoke the Geo-Blocking Regulation, UK traders would continue to have obligations to EU customers under the Regulation while UK customers are unlikely to receive any of its benefits.”

Paragraph 2.5 states:

“To avoid this asymmetry of enforcement obligations in the EU’s favour, we are revoking the…Regulation in the UK.”

I accept those points, which is why we will not oppose the revocation.

The revocation of the regulations would at least minimise discrimination, but that is a bare minimum and a low base from which to operate. It would be far better not to have to do this and to have mutual recognition after we leave the European Union and continue with an arrangement that protects our businesses and consumers against discrimination as far as possible.

The draft regulations are an example of what no deal means. After yesterday’s latest failure by Members from across the House—but from some parties in particular—to be prepared to find a compromise to avoid no deal, we are one day closer to the dire prospect of that outcome. Of course, the Government should have taken no deal off the table, so that MPs did not have to do so, to avoid what in all honesty are desperate, last-minute no-deal preparations. That is the only way to describe what we are being asked to do today, 10 days before a likely no-deal departure.

The CBI was one of the business organisations referred to as having been consulted. Although I do not have its response to the consultation—I hope to hear it shortly from the Minister—I do have what it wrote to the Prime Minister, in a joint letter with the TUC, about the consequences of no deal. Is it not refreshing to see the leaders of the employers’ largest representative organisation and the leaders of the workers’ representative organisation working so closely together, signing a joint letter to the Prime Minister? That is what leadership in this country looks like and it is a great shame that we have not seen more of it from politicians.

The joint letter makes it clear that no deal would be disastrous for the country—for businesses and for workers—and that also applies to the draft regulations, should they ever be needed. On a no-deal outcome, the CBI-TUC letter states:

“Firms and communities across the UK are not ready for this outcome. The shock to our economy would be felt by generations to come…avoiding no deal is paramount.”

They describe no deal as causing “reckless damage”—[Interruption.] It is a shame that those Members commenting from sedentary positions on the Government Benches did not support some of the alternative options available to us yesterday. The TUC and CBI call for a plan B, which has been rejected by those Members who have been heckling me for the past few seconds.

[Sir Oliver Heald (North East Hertfordshire) (Con)]

I do not know whether the hon. Gentleman would like to join me in welcoming the fact that the House of Lords has just passed the Animal Welfare (Services Animals) Bill, which will give protection to police dogs and police animals.

[Bill Esterson]

I am delighted to welcome the passing of that Bill. I was not quite sure what that intervention was going to be about. I agree that it is an extremely welcome and important piece of legislation that has made progress in the other place.

The TUC and the CBI are calling for a plan B. I hope that, as we make further progress in finding alternatives tomorrow, we do that and avoid a no deal. If that is the case, the Minister will not have to invoke these regulations.

The revocation of the geo-blocking regulation is not the largest single impact of no deal; it is a small example of the consequences, and I hope it is not needed. I hope that the Minister and all hon. Members agree with that point.

I have a couple of questions for the Minister in addition to what I asked her earlier. I understand that there are businesses in the UK that currently use hosting services from EU providers. Can she reassure them about how that access will continue if the geo-blocking regulation is revoked in the event of no deal? The impact assessment takes a very narrow view and does not comment on the number of individuals using services from the EU in this way under the regulation. I hope that the Minister can give some sense of what the impact would be, what the likely outcome is, and how the Government propose to protect businesses in the event of no deal in this respect.

Consumers currently enjoy the ability to buy services and goods from across the EU. Will the Minister indicate whether the Government have assessed what the impact on them will be in relation to access to services and registration? Will businesses in this country be able to buy services from within the EU if the regulation is revoked?

I and other hon. Members have asked questions about the damage that no deal will do on a small scale through this one set of regulations. One way to express it is to say that these regulations show that the Government have failed to prepare; another is to say that they have not prepared because it simply is not possible to prepare for no deal. These regulations, like so much else that is going on at the moment, given the looming prospect of no deal, demonstrate that. We can overcome the danger of a disaster only by avoiding no deal. I hope that hon. Members from all parties will take note of that and will try to find alternatives. The Government’s deal will not go through, so an alternative needs to be found.

--- Later in debate ---

[Kelly Tolhurst]

Well, I hope that the hon. Gentleman is asking me that question because he wants to support me and my colleagues on the Government Benches. It is quite right that any responsible Government would prepare for a no deal, and that is exactly what we are doing. I must remind colleagues that this regulation came into force in December last year, and, where we have had to enforce it, there have not, as yet, been any complaints.

[Bill Esterson]

The hon. Lady demonstrates that she and I are in agreement about the benefits of geo-blocking and the current arrangements that we have as members of the EU. This regulation is about no-deal preparation, and we will lose those benefits if we leave with no deal. Perhaps she can tell the House what preparations she and her Department have made to ensure that, if we do manage to avoid no deal, there is a mutual recognition agreement that keeps these provisions in place.

[Kelly Tolhurst]

The hon. Gentleman’s question suggests that he is considering supporting the withdrawal agreement, because he is asking me about the preparations that we have made in the event of that happening. We have been quite clear that we have to agree the withdrawal agreement. As we have said in our technical notices, and as I have said in many SI Committees, we will be working with our neighbours to ensure that we are able to enter into mutual co-operation agreements if the withdrawal agreement is passed.

Draft International Accounting Standards and European Public Limited-Liability Company (amendment etc.) (EU Exit) Regulations 2019

Bill Esterson Excerpts

Wednesday 20th March 2019 General Committees

[Bill Esterson (Sefton Central) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Pritchard.

The importance of accounting standards cannot be overstated. I am sure all members of the Committee understand that it is crucial that we get this right, and that the public, stakeholders, investors and the Government can rely on the accuracy of published accounts. Given the recent public concern over audit and the question of the independence or otherwise of the big four, this topic deserves thorough debate and scrutiny. It is essential that accounts give a true and fair view and, therefore, essential that, whether the standards are national or international, they are delivered in the appropriate way and with the right degree of support, scrutiny and accountability.

I believe I am right in saying that we are dealing here with the arrangements that would be in place in the event of no deal. As ever with the regulations brought before us in these Committees, there is the question of the adequacy of scrutiny and our ability scrutinise properly, given the time available to us, the complexity of what we are being asked to consider and, frankly, the inadequacy of the consultation—in this case, the fact that no public consultation has been carried out.

I will ask the Minister to respond in her reply on the nature of the informal consultation on these regulations, who was consulted and what they said in response. I was informed yesterday, by being copied into a letter to one of her ministerial colleagues, about the nature of a consultation on another set of regulations; I was copied in because I was the shadow Minister on that occasion as well. What concerned me about the letter sent to the Minister’s colleague was that the consultee had been instructed—not asked, instructed—by the Department to comment only on the technical content of the regulations and not to advise on whether the regulations would deliver what the Government needed to be delivered in the event of no deal. That is of great concern. Will the Minister confirm whether that is true here and whether the informal consultees, assuming there have been some, were asked to comment on a similar basis—only on the very narrow technical content of the regulations—or whether they were asked to comment on their adequacy and the wider issues involved.

In this case, I assume—perhaps the Minister can confirm this for the Committee’s benefit—that the big four were consultees. If not them, then who? Perhaps she can also confirm whether there was wider public consultation or consultation with organisations independent of the accountancy profession, which would have been necessary to ensure proper scrutiny of what we are considering—not that we have been given sight of their comments, which is why I have asked her to let us know what they said.

Yet again, we have no business impact assessment. Again, I put on record that it is impossible for members of this Committee to know whether that is an appropriate judgment by the Department, because we do not have enough information before us; we do not have the depth of knowledge, the detail of consultation or comment by expert witnesses to give us the evidence to judge whether there will be a significant impact.

The regulations mention the Financial Reporting Council’s involvement and the fact that it is being asked to set up and oversee an endorsement board to take on the responsibilities currently delivered by the European Commission. That is cause for great concern. The FRC is due to be reconstituted, involving primary legislation, as a result of the Kingman review, which was published in December. I do not know whether the Minister is able to say when that primary legislation will be considered and when that work will be undertaken, but it clearly will not happen in time for these regulations to be enacted and for the FRC to take on the responsibilities set out in these regulations. Perhaps she can tell us when time will be made available for the work that needs primary legislation. Given the volume of legislation—we hear talk of the Easter recess being cancelled so that we can consider further statutory instruments like this one—perhaps she can tell us when that primary legislation is due to be considered by Parliament so that the FRC can be reconstituted.

That is of concern that we are in a position where, as the front page of the Financial Times put it, the FRC is

“to make way for stronger accounts watchdog after a string of audit failures”.

Given that concern about the FRC, it seems quite odd to ask it to take on this additional responsibility. The FRC is subject to 83 recommendations for change, a third of which require primary legislation. Will the Minister say how the FRC will have the capacity, and how we can be sure it has the competence, to take on this added responsibility as a result of the regulations? It is incredibly important that we get our financial standards right, for the reasons I set out. The concern is that the FRC simply has enough on its plate already, as set out by the Secondary Legislation Scrutiny Committee when it recommended that the draft regulations be subject to the affirmative procedure.

I am also curious to hear the Minister’s view on the Association of British Insurers’ suggestion that the Secretary of State should have active political oversight of the endorsement board. It made that suggestion because of the upheaval at the FRC, and also because of longer-term implications; as the international financial reporting standards evolve, a significant amount of work by the board will be needed. The Minister mentioned the annual report by the Secretary of State to Parliament, but that is very different from active and regular political oversight of the endorsement board.

I believe that Australia has such a system; I notice that Australia was mentioned a few times in the draft explanatory memorandum. I wonder why the Government have not considered what seems to be an effective system of political oversight and why they have taken this light-touch approach to the day-to-day management of this incredibly important piece of work. I remind the Committee that the independent review of the FRC found that it is not fit for purpose and has serious problems in how it recruits top staff. Those reasons are enough now for having that active political oversight, and they will be cause for great concern until that primary legislation comes forward and a new body is set up.

The Minister’s Department told a House of Lords Committee that it was

“currently working with the FRC to build capacity to set up the new Endorsement Board…in time for EU Exit.”

The Department also told the Committee that

“stakeholder input helped us define the extent of the FRC’s role in relation to the new Endorsement Board”.

How is the setting up of the new endorsement board going, who are those stakeholders and what was their input into the creation of the board?

The European Commission currently oversees the application, and influences the development, of IFRS across the EU. What is proposed raises concerns about a lack of political oversight of the board. I will be grateful for the Minister’s comments on that point. The United States applies IFRS only piecemeal, which reduces the international effectiveness of IFRS itself. Have the Government lobbied the US to adopt IFRS? Will the Minister tell us about the impact on US-UK trade agreements of a lack of adoption of those standards and of having different regulatory environments? Are these matters being discussed by her colleagues in the Department for International Trade in their preliminary discussions about potential US-UK trade agreements?

On the setting up of the endorsement board, will the Minister tell us who will be represented on it? Will it reflect stakeholders, including those independent of the profession, as well as representatives of the nations of the United Kingdom? Accounting standards are of great importance, and making sure that regulations are in place in the event of no deal is essential.

There are real concerns about the regulations and the ability of the FRC to put in place a system that ensures their robust implementation. Given that this instrument has already been through the House of Lords, I hope the Minister is in a position to give detailed responses to the points I have raised. They were raised in the House of Lords equivalent of this debate and I would like to think that she has come prepared to answer them.

[Kelly Tolhurst]

I am grateful to the hon. Gentleman for his contribution. International financial reporting standards are a world-leading set of accounting standards, used by a large number of companies in the UK, the EU and other countries around the world. Their use helps inform decision making, improves transparency and promotes confidence in the business environment. As we leave the EU, it is vital we maintain the integrity of the UK system of accounting and reporting.

I remind the hon. Gentleman that we are talking about a statutory instrument that would transfer the current rules that we already work to within the European Union and how the EU applies those rules across member states. In the event of our exit from the EU, we are bringing together a UK framework. It is important to bear that in mind. This is about how we develop a successful framework that enables us to maintain our position as a great place to do business, and reassures investors and companies of that.

We are the biggest capital market outside the US and, therefore, it is right for us to have the regulations; I am sorry to hear that the hon. Gentleman has concerns about them. Having worked through them as a Minister, I think they are sensible and would enable the UK to carry on securely.

I will answer some of the points raised by the hon. Gentleman. The stakeholder group was established in April 2018 to look at the regulations, and it held six meetings. That group included investors, accountants, advisers and business representatives who took part in the meetings as independent individuals. They were asked to participate because of their knowledge, expertise and potential to help in this area, to work with us to look at the technical information and ensure that any regulations brought forward would be in good order.

As the hon. Gentleman mentioned, there was no public consultation on the regulations, but we held informal stakeholder meetings of those affected and interested parties over a long period, from 2018.

With regard to the hon. Gentleman’s comments on the FRC, we welcomed the review undertaken by Sir John Kingman and we will bring forward primary legislation on that point. I must point out that the endorsement board will be a subsidiary of the FRC. It is not currently constituted. The regulations will enable the Secretary of State to have those powers and he will be able to sub-delegate them to an endorsement board.

We are working with FRC officials, and the Secretary of State has full oversight of the development of the EB and its design. He will eventually appoint a chair, shape governance and have full political oversight. The EB will be run separately, as a subsidiary; it will have its own running costs and will be funded through a levy, which organisations that have to comply with FRC rules currently pay to the FRC.

One good thing about the endorsement board and its being structured within the FRC is the future thought leadership that the board will give. It will really be able to influence, on the international stage, any future developments in IFRS standards. That area will be key for the endorsement board going forward.

[Bill Esterson]

Earlier, I put to the Minister her Department’s statement to the House of Lords Committee that it was working with the FRC to have the new endorsement board ready in time for EU exit. I take it, from what she just said, that that will not happen. Will she confirm that? Will she also confirm the arrangements for the work that the new endorsement board will undertake once it is set up?

[Kelly Tolhurst]

I am sorry; I thought I had already outlined that to the hon. Gentleman. The Secretary of State has those powers, which will he will sub-delegate to the endorsement board. We are working to develop that board, and our intention is that it will be in place by the end of 2019. I thought I had made that clear.

The Secretary of State will have the power to sub-delegate, but he will also have the power to revoke powers sub-delegated to the endorsement board in the future. To clarify, and to give Members comfort that political oversight will continue, the hon. Gentleman was quite right that the Secretary of State will have to report to Parliament annually, and the endorsement board that carries out these tasks in the future will also report annually to the Secretary of State. Those reports will be placed in the Commons Library. Even when there is an endorsement board, the Secretary of State will still lay an annual report in Parliament, which will give an opportunity for parliamentary scrutiny and for the Secretary of State to be scrutinised and held to account for particular activities of the endorsement board when that sub-delegation has occurred.

On the hon. Gentleman’s comments on whether we are lobbying the US to follow IFRS standards more closely, that is not something I am directly involved with. The draft regulations are very much about making sure that the UK is able to maintain its place in the global market. As an independent nation after EU exit, we will have the opportunity to make sure that we have a wider influence in the world on the adoption and formulation of standards.

As I have outlined, the draft regulations will provide continuity and clarity to business by ensuring that UK companies can continue to use IFRS, as adopted in the EU, when preparing their annual accounts. They also set out a future adoption framework for the UK that is robust and transparent, and that will act in the national interest. This framework has been developed in close consultation with stakeholders, as I have outlined, and represents the best way forward for the UK’s continued use of these international standards. I therefore commend the draft regulations to the Committee.

Question put and agreed to.

Oral Answers to Questions

Bill Esterson Excerpts

Tuesday 19th March 2019 Commons Chamber

[Kelly Tolhurst]

The hon. Gentleman raises an important point. Tax is a responsibility of the Treasury, but as he will know, including after our conversations yesterday—this was also alluded to earlier in questions—post offices are still an important part of our high streets, and the Post Office is currently negotiating a new banking framework. It is absolutely right that, when banks are pulling out of our high streets, the post offices that are delivering the services are remunerated correctly for that.

[Bill Esterson (Sefton Central) (Lab)]

The duty for large companies to report how quickly they pay their suppliers is of course welcome—80% of businesses that fail do so as a result of late payments—but to be effective, the new duty to report will need some teeth, such as binding arbitration and fines for persistent offenders. This Government’s use of sanctions against the poorest has been disgraceful, so how about using sanctions against some of the most powerful and making sure that large corporations treat their small business suppliers fairly?

[Kelly Tolhurst]

Late payments and the way that some large businesses have behaved in the past have been an issue for decades, and it is this Government who are prepared to make changes and bring forward policies to reduce them. We know that late payments can be incredibly damaging for businesses. That is the reason for the Chancellor’s announcement last week about the responsibility of committees to look at payment practices, and I look forward to making further proposals.

Draft Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019

Bill Esterson Excerpts

Tuesday 5th March 2019 General Committees

[Bill Esterson (Sefton Central) (Lab)]

It is a pleasure, as ever—but especially at this hour of the morning—to serve under your chairmanship, Mr Hanson.

I start by picking up one of the Minister’s comments. He said that this is business as usual—but if there is one thing that Brexit is not, it is that. We can probably all agree on that, whatever our stance on the subject.

[Chris Skidmore]

If you vote for the deal, it will be.

[Bill Esterson]

I think, Mr Hanson, we are in danger of wandering into a slightly different part of the forest.

The Minister set out the arguments in favour of creating a system that addresses what will be needed in this country for both registered and unregistered designs to apply in the UK, and I have relatively few concerns about his remarks. However, as always with such regulations, there is the question of whether Opposition Members are in a position to give our full judgment on both the available information and the responses from the technical experts in the sector.

I put on the record, again, our concern about our ability to fully scrutinise what we are being asked to support. It is a common problem with regulations, often related to the speed with which they are being pushed through, their detail and technical content, and their importance. As ever, it is important to get that point across, as this is another example of costs—albeit the Minister is claiming that they are relatively small —for creating a functioning regime after we leave the European Union.

As the sifting Committee said in its report when it recommended that the draft regulations be considered in Committee,

“The work of conversion is clearly a major exercise.”

That work will involve 700,000 registered Community designs alone. The preliminary estimate is of £375,000, which may appear to be a relatively small amount of money, but that is clearly not without significant amounts of work. The Intellectual Property Office says that it is able to address that and that costs are recovered through fees. The Minister has pointed out that the fees have come down. I have no reason to doubt him on that, but it will take time, both for the authorities to process the change in arrangements and for businesses to make sure they are covered. I believe there is a nine-month window for businesses to adapt to the new regime—the Minister may wish to correct me on that. Perhaps he could also answer how the Government intend to make sure that everybody has the cover that they need and is aware of the changes that they need to make during that transition period.

I have one question for the Minister, the answer to which I did not catch in his opening remarks. Perhaps he can explain how the unregistered Community design system operates and how businesses obtain their protection without having to register for it. I note that there is a three-year period. Can he clarify how that system operates so that the protection is in place? From what he said, it is clearly an important part of intellectual property protection. Perhaps he could give us some clarity on how it operates.

As ever, there is the thorny issue of consultation or, to be strictly accurate, the lack of public consultation that we see with the regulations going through Committees every single week. I notice that no formal consultation was carried out, but that stakeholders were asked to give their opinions. Perhaps the Minister can tell us—I cannot find the information anywhere—who was consulted and what their responses were to those informal consultation discussions. It would have been very helpful to have that information in front of us; it would have helped to ensure that we were in the best possible position to judge whether we should or should not support the regulations. I hope that the Minister, if he does not already, will soon have a note on what the consultations were, who was consulted and what the responses were.

I want to tell the Committee of the key concern raised by the Alliance for Intellectual Property. It is not particularly concerned with the continuing regime in the UK; it is relatively confident that what the Minister has described meets its requirements. Its concern is the lack of reciprocity. If equivalent protection is achieved through the withdrawal Bill, it believes that the design sector will still be gravely at risk without reciprocal protection from the EU27. After we have left the European Union, designs that are first disclosed in the UK might well be sufficiently protected here, but will receive no unregistered Community design protection in the EU, because we will no longer be members. The AIP’s view is that this would have grave consequences for UK designers: according to a recent survey by Anti Copying In Design, almost 80% of them rely on the unregistered Community design right to protect their designs.

The EU is the largest export market for many UK design sectors, contributing over two-thirds of UK furniture manufacturers’ export revenue. Such a loss of reciprocity poses a serious threat to leading industry events such as 100% Design, London Fashion Week and Top Drawer, which creators from all over the world attend in order to reveal new and innovative designs. Without protection, designers will either have to run the risk of copying throughout the EU27 following disclosure, or simply avoid first disclosure in the UK altogether. Perhaps the Minister can advise on which route the Government think designers should take.

[Matt Western (Warwick and Leamington) (Lab)]

On the point about designers and furniture manufacturers, there is a company in my constituency—a small business, which exports to 70 countries around the world—that faces significant costs in the enforcement of this design legislation and is up against a lot of copycat manufacturers, particularly in the far east. The company will be especially exposed, because Europe is such a big market for it.

[Bill Esterson]

Using the example of his constituents’ business, my hon. Friend has set out the sector’s exact concerns and the challenge for the Government to ensure protection of our innovative and creative exporters. Given the end of the parallel system to which the Minister referred in his opening remarks, perhaps the Minister can tell us how the Government will provide assurances.

What is the state of negotiations on achieving protection in this area in the European Union? We cannot overstate the importance of that protection for businesses such as that of my hon. Friend’s constituents. I hope that there is an answer to that, and that the Minister can give us some assurances. We know that all too often negotiations on the details of post-Brexit arrangements have not gone as well as they need to—I hope that this issue is not one of those.

I asked the Minister about consultation. As ever, the approach to impact assessment is limited. Paragraph 13 of the explanatory memorandum discusses regulating small businesses. How well prepared will they be? This picks up on my earlier point on ensuring that all businesses are aware of the changes that will happen and the actions they need to take. Again, the Government have chosen a very narrow interpretation of “impact” in their approach to impact assessment; they are not taking the wider impact on the economy as a whole. As I said on previous occasions, that is regrettable and does not set out the true impact of regulations such as these.

That brings me to a number of questions that arise from the commentary in the explanatory memorandum. Can the Minister explain how the system will work for existing rights that are granted by the European Union’s IPO? I am not entirely sure whether that question follows on from that asked by the right hon. Member for South Holland and The Deepings, but I think it is similar. If the Minister has not already answered it, perhaps he can pick up the point about ongoing validity for five years.

My next question is about paragraph 2.8 of the explanatory memorandum, which references action being taken by EU rights holders and their protections in the UK. My assumption is that those rights holders will be protected in the UK, and that the concern is about that lack of equivalence. Perhaps the Minister could clarify that point, along with the ones about protections of UK designers in the EU.

According to paragraphs 7.17 and 7.27 of the memorandum, 12,000 international trademark applications and 1,000 design applications are estimated to be pending on exit day. How are the Government making sure that all those applying know that they need to file a new application? That point is similar to the earlier questions about making sure that all businesses understand what they need to do.

Paragraph 13.3 of the memorandum states that

“there is sufficient time for all businesses to familiarise themselves with the changes”

before the regulations take effect, but there is a difference between there being time and businesses taking up the option. Certainly, many small businesses are not always equipped to address the regulations that come to them, so I really want to press the Minister on the impact on our small and medium-sized enterprise community.

In paragraph 7.33, there is a reference to

“the right to opt out”.

Again, what are the Government doing to make sure that businesses are fully aware of the options available to them, which are referred to in that paragraph?

I think this is my final question—[Laughter.] I am sure I can find some more if Members want me to, but on balance, I will stick to this one. The memorandum refers to fees of £63,000. Are those fees payable by businesses of all sizes, and is that going to continue to be the case? The Minister mentioned lower fees in his opening remarks, so perhaps he could link what he said then with the figure of £63,000 cited in the explanatory memorandum.

The example that my hon. Friend the Member for Warwick and Leamington gave about the furniture manufacturer in his constituency demonstrates how important it is that we get these regulations right and have arrangements in place. It is particularly important for designers for whom the EU is a major market; as we have heard, two thirds of designers export to the EU. I would particularly like to hear the Minister’s answer about reciprocal arrangements, and I hope he is also able to answer the other questions that I have asked.

[Chris Skidmore]

I thank the hon. Member for Sefton Central for the contribution he has made to this debate, as well as the other right hon. and hon. Members who have contributed through interventions. I will endeavour to respond to the questions that have been raised.

I will first turn to the issue of public consultation, which has been familiar terrain in several of these no-deal statutory instrument Committees. The Intellectual Property Office has been engaging with businesses about the implications of exit since the referendum result, and I will turn to that engagement in a moment. The Department has used the existing Cabinet Office principles for consultation on all EU exit SIs and non-exit SIs, and details of any consultations undertaken are explained in all SIs’ accompanying explanatory memorandums. The Government have sought to maximise continuity in a no-deal scenario. At the early stages of the negotiations on the future partnership, as I have explained before in previous Committee debates, revealing the details of our continuity approach to public consultation would have risked our negotiating position.

[Bill Esterson]

I have heard the line about risking our negotiating position from Ministers before. Over the weekend we heard the US give exactly what its negotiating mandate would be in a trade deal. If the United States can do it, why can’t we?

[Chris Skidmore]

It is important to reflect on the fact that the process of the negotiations is one that we do through Brussels and across 27 other member states. It is right that we take a nuanced position. I note, however, the hon. Gentleman’s support for President Trump in this debate.

[Bill Esterson]

That really is a stretch!

[Chris Skidmore]

The individuals who took part in the technical review did so in a personal capacity. They were chosen because of their past experience as representatives of various stakeholder bodies, usually engaged in consultation with the IPO. The technical review required a fairly detailed knowledge of legislation—its practical implications as well as the context of the wider industry—and the framework of the EU international trademarks and designs legislation as a whole. We are confident that those individuals have the relevant knowledge and will be able not only to follow the approach being taken by the instrument in order to follow and identify any errors, but, importantly, any other issues that we might have missed. In no way was the IPO looking for people who would just agree with the approach or raise no issues. Although it is important for us, that would not have been for anyone’s benefit. Indeed, the discussions at meetings were robust and forthright, and attendees were keen to challenge the instrument and make sure it was the best possible going forward.

[Bill Esterson]

Other Ministers have told us who has been consulted when we have asked these questions. Is there any reason why he is not telling us who was consulted on this occasion? Perhaps he will write to me.

[Chris Skidmore]

In terms of the consultation process and the individuals acting in a personal capacity, I am not sure whether I have the authority to divulge their names on the Floor of the Committee at this particular moment. Perhaps I can write to the hon. Gentleman if I can request their permission to be named. They acted in a personal and private capacity as part of the consultation following the Cabinet Office statutory instrument guidelines on consultations. The framework and process was a trusted one. I am sure that having an opportunity to give private views provided for a greater opportunity to scrutinise the legislation and to be more honest and robust as a result.

We assessed the impact of the SI using the better regulation framework in line with the Treasury’s Green Book guidance. It was obviously deemed to be less than £5 million, so a full impact assessment was not required. Analysis has been focused on the direct impact of the relevant SI compared with current legislation, and analysis of wider impacts on the UK’s exit from the EU has been previously published in the form of long-term economic analysis, which was published in November 2018.

On the impact on business and the conversion of existing rights to comparable UK rights, we have committed to ensuring that the administrative burden on business is minimal. The teams at the ICO are making good progress on numbering systems for the new comparable rights and will communicate the changes as soon as possible. The IPO will also publish guidance in every language of the EU on its website so that rights holders in every member state will be able to access all the necessary information on their UK rights.

When it comes to the process of notification both within the EU and the UK, the IPO will publish a standard website notice in all languages, as I have said, confirming that holders of re-registered UK designs and comparable UK trademarks have been granted equivalent UK rights. The notice will continue to remain on the website after exit, and individual notifications to holders of EU and international trademark designs will not be issued. We are confident that there has been significant interest that will be progressed towards the guidance being published.

If rights holders do not want to be given the new rights, the statutory instrument contains an opt-out provision that allows the holder of a comparable UK design or trademark to request that it be treated as if it was never registered in the UK. That process can be exercised via completion of a no-fee letter or email to the registrar, requesting an opt-out.

Several issues related to costs for businesses. This has been covered in interventions, but I state again that there will be no fee associated with the creation of the new UK rights. The comparable UK registered design or trademark rights will be independent from the corresponding EU rights. Obviously, there will continue to be charges for renewal. When the comparable UK right expires, the standard UK renewal fees will apply. In terms of comparable UK registered design, the renewal fee, which will be the same as it is at the moment, will increase for each successive five-year period of protection, from £70 for the first renewal up to £140 for the fourth and final renewal period. That is consistent with current practice. The holder of the comparable UK registered design will be required to pay these UK renewal fees in addition to those associated with the corresponding EU right in order to preserve protection in both the UK and the EU. For a comparable UK trademark, renewal fees will be charged according to the goods and services protected under the mark.

The hon. Member for Sefton Central raised the issue of the costs for Government—trading funds. The IPO receives no central Government funding, so costs are recovered through fees. In terms of the process for creating UK comparable rights, the actual process will be automated. Because these rights are currently valid and enforceable in the UK, the IPO already has access to related data—these are recorded in the IPO’s records system and published on web-based search platforms—and as a result we will be able to create the new comparable UK rights without a significant amount of additional work.

When it comes to the issues about preparation for EU exit by the IPO, resources have been managed as part of the preparations. That includes staff recruitment and training. The creation of new rights on exit day will not itself create a need for additional resources beyond those already being addressed as part of our business-as-usual operational management.

[Chris Skidmore]

I thank the hon. Gentleman for his point. I would be happy to write to him with some of the details on the resource issues of staffing. I went to visit the IPO’s headquarters down in Newport and was deeply impressed by the organograms and the plans that it had put in place. Almost week by week and day by day, it has been planning for EU exit. Its staff morale is one of the highest for a Government organisation across the country, not just in Wales. I really got the sense that the IPO was content with the process, was managing the process and was a happy organisation in taking forward the process, but I will write to the hon. Gentleman on some of those details. I got no sense that there was undue pressure on the IPO as a result of the changes taking place.

Let me turn to the issues raised about designers and disclosure of unregistered designs. An unregistered design will need to be first disclosed in the EU to be protected in the EU should we leave without a deal. However, disclosure in the EU may have implications regarding any corresponding UK unregistered rights, such as the supplementary unregistered design and the existing UK unregistered design rights. This statutory instrument contains provisions to allow us to negotiate reciprocal arrangements on first disclosure with third countries, which may be the EU, individual countries within the EU, or more widely, but that will still be subject to future agreement.

If we retain first disclosure in the EU as a basis for establishing post-exit UK unregistered design, we will create an imbalance between the UK and EU systems, providing EU-based designers with an unfair advantage. Designs disclosed in the EU would count for establishing both UK and EU protection, whereas designs disclosed in the UK would count for establishing UK protection only.

The law in this area remains unclear, with prominent legal commentators disagreeing on the subject, but our approach reflects the published interpretation of the EU IPO. We think that that provides a more consistent approach for designers to understand and apply. The approach may be subject to future change if courts decide to take a different interpretation, but the SI does recognise disclosure in other qualifying territories, and although we will not have a reciprocal arrangement with the EU on exit day, we may have the opportunity to reach such an arrangement in the future.

[Bill Esterson]

The Minister’s answer on that point justifies the concerns raised by the Alliance for Intellectual Property, some of which I listed. He gave great cause for concern about the uncertainty and the differing legal opinions there. Can he give the Committee an indication about the discussions that have already taken place with our EU counterparts on how we achieve a reciprocal arrangement and what estimate the Government have at the moment of how long it will take to reach a system where we can avoid the problem he set out, which is of real concern, over damage being caused to a designer by registering in one jurisdiction and not in any other?

[Chris Skidmore]

The context of Government negotiations have been prioritised around that future relationship and finding a deal with the European Union. I am sure that, having raised these points of uncertainty, the hon. Gentleman will want to vote for this deal, to ensure that he can—there is no point in frowning at me. In every Committee meeting we come to, the hon. Gentleman raises points of concern and then goes into the House of Commons and votes the opposite way. Designers need to know that the hon. Gentleman is taking an approach that will provide maximum possible uncertainty to the sector. For him to raise these points here today is completely paradoxical to the approach that he takes in the Chamber.

We have agreed provisions on IP that will provide legal certainty and protect the interests of rights holders in the withdrawal agreement. It is important for the Committee that I place this on the record. It includes that registered Community designs should continue to be protected in the UK after the implementation period; that existing unregistered Community designs should continue to be protected in the UK after the implementation period; that the UK should take measures to ensure that international trademarks and designs designated in the EU, which are protected prior to the end of the implementation period, continue to enjoy protection in the UK; that IP rights exhausted in the UK and EU before the end of the implementation period shall remain exhausted in both areas; and that UK legal representatives will be allowed to continue to represent their clients before the EU IPO in cases that are ongoing at the end of the implementation period and in addition to the implementation period, which means that the current regime and arrangements for intellectual property will continue to operate as they do now until the end of that period. The provisions ensure that existing EU-level IP rights and the international rights designated in the EU will continue to be protected in the UK after the end of the implementation period.

I am sorry to sound so passionate about the deal, but I truly believe that, when it comes to IP, the deal is the best possible solution on the table to ensure that we can protect the interests of rights holders. I urge the hon. Gentleman to vote for it.

[Bill Esterson]

The problem is that, whatever deal goes through—and even if we leave without a deal—the same problem applies: that this issue of registering either in the EU and affecting UK rights, or registering in the UK and affecting EU rights, applies. That is the bit that has not been resolved. It is a complete red herring to say that which deal we vote for affects the outcome of these regulations.

[Chris Skidmore]

As I said, we have got this as the withdrawal agreement going forward; however, we must also turn to the issue of the future partnership. Arrangements on future co-operation will be a key part of the future partnership. We will seek a comprehensive arrangement on trade that will cover a wide range of sectors, including IP. As part of going forward with that future relationship, the UK will continue to explore participation within the unitary patent system and the unified patent court. It is important that we reflect on that going forward.

In summary, I want to make sure that when we come to consistency, UK law says that anyone who lives in or carries on a business in a member state can claim UK unregistered design protection. That is because of section 217 of the Copyright, Designs and Patents Act 1988, which says any qualifying person—that is, any person who lives in and runs a business in a qualifying country, as defined to include member states—can claim the UK unregistered design right. We did not make any change to that. After exit day, people in businesses in the EU will continue to claim the UK unregistered design right while people and businesses in the UK would lose that equivalent right in the European Union. That creates an imbalance between UK rights holders and EU rights holders that we must change. UK law is therefore being amended to limit the geographical criteria for a qualifying person to claim the UK unregistered design protection. That is important for providing certainty, clarity and consistency, above all, as part of this SI.

I hope that my answers have been helpful. These regulations are an absolutely necessary part of making sure that the IP continues to function if no deal is agreed. Above all, I hope that Members will consider that a deal will be in the best interests of IP rights holders; but I also hope that the Committee will now support this statutory instrument today.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Designs and International Trade Marks (Amendment etc.) (EU Exit) Regulations 2019.

Oral Answers to Questions

Bill Esterson Excerpts

Tuesday 12th February 2019 Commons Chamber

[Kelly Tolhurst]

The hon. Lady is quite right. In October last year, we announced that we will bring forward legislation regarding tipping in the next Session. We are committed to doing that. It is this Government who have brought it forward.

[Bill Esterson (Sefton Central) (Lab)]

The Secretary of State for International Trade seems to be hell-bent on destroying our businesses, judging by his support for zero import tariffs. Can the Business Minister confirm that she understands the damage that unilaterally imposing zero import tariffs would do to businesses and jobs in this country? Will she confirm whether she or the Business Secretary will remain as members of the Government if that policy is adopted?

[Kelly Tolhurst]

I am glad the hon. Gentleman has raised this issue. We engage with the small business community, the wider business community and all business representation organisations on a weekly basis. It is quite right that we consult a plethora of businesses throughout the UK on any decision that will be taken on customs and tariffs. We will take into consideration their views when we set our policy, which will be announced in the near future.