Small Business Commissioner (Scope and Scheme) Regulations 2017

Lord Henley Excerpts

Wednesday 6th December 2017 Grand Committee

Moved by

[Lord Henley]

That the Grand Committee do consider the Small Business Commissioner (Scope and Scheme) Regulations 2017.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Henley) (Con)]

My Lords, the purpose of the statutory instrument before us today is to establish further detail about the Small Business Commissioner’s complaints scheme, as well as which small businesses qualify to use the complaints service.

Late payment remains a significant issue in the United Kingdom. According to data on business population estimates published by my department in October 2016, 99.3% of the 5.5 million private sector businesses were small businesses and 99.9% were small or medium-sized businesses.

Latest BACS Direct Credit figures report that the overall level of late-payment debt owed to small and medium-sized businesses stands at £14.2 billion. This is completely unacceptable for the small and medium business sector in the UK, which we all rely on for jobs, goods and services. There is no place for this sort of unfair payment culture in a well-functioning economy.

Provisions in the Enterprise Act 2016 established the Small Business Commissioner. I take this opportunity to welcome Mr Paul Uppal into the role as the United Kingdom’s first Small Business Commissioner, following the announcement of his appointment by my right honourable friend in another place the Secretary of State, Greg Clark, on 2 October this year.

Mr Uppal’s role will be crucial in supporting small businesses to resolve payment disputes with larger businesses and will help drive a culture change in payment practices and how businesses deal with each other. The commissioner will provide general advice and information to small businesses, delivered through the commissioner’s website, signposting businesses to existing support and dispute resolution services.

The website has been specifically developed so it is fit for purpose. My department has received positive feedback that it meets an information and service need currently not met. I can report that development work on the website was completed yesterday and the website will be launched alongside the rest of the Small Business Commissioner’s service before the end of this calendar year, subject to the proceedings before us today. Since the debate in another place on 21 November, the Small Business Commissioner and his team have also begun their programme of stakeholder engagement and have begun recruiting additional staff who will provide support on complaints casework.

The commissioner will be able to consider complaints from small business suppliers about payment issues with their larger business clients and make relevant recommendations. We are aware that small businesses may refrain from making a payment-issue complaint about a larger business for fear of it being detrimental to their relationship—for example, resulting in a threat to terminate their contract or similar bully-boy tactics. The regulations therefore ensure that the commissioner is not required to name the complainant to the respondent. They also allow the commissioner to disapply the condition that the small business making the complaint must talk to the larger business about the complaint before coming to the commissioner, where the commissioner considers that to do so would have a significant detrimental effect on the commercial interests of the small business making the complaint. The Act makes it clear that, in any report on complaints, the commissioner cannot name the complainant unless the complainant agrees to being named.

The commissioner can accept and consider complaints that relate to matters which occurred in the period between 6 April 2017 and the formal launch of the complaints service, as well as those relating to matters occurring after the launch date. This broadens access to the complaints service and will help the Small Business Commissioner gain impetus as soon as the office is officially open for business. The complaints service will launch as soon as possible following Parliament’s approval of these regulations, as has already happened in another place.

The Enterprise Act 2016 sets out the broad framework for the Small Business Commissioner. These measures apply to the whole United Kingdom. These regulations provide further detail about what a small business is for the purposes of qualifying for the commissioner’s services, including the complaints service. The regulations also provide further detail about the complaints scheme itself.

The regulations set out that a business must have a headcount of fewer than 50 staff on one of the assessment dates or during one of the assessment periods to qualify to use the commissioner’s services. They also set out the requirements that must be met before presenting a complaint; the requirements as to the form and content of the complaint; and the time limit for presenting a complaint, and the power of the commissioner to fix and extend time limits and to dismiss complaints. They also set out the matters that the commissioner must take into consideration when determining whether an act or an omission complained about was fair and reasonable, and the factors to be taken into account when deciding whether to identify a respondent in any report of any complaint.

My department consulted on how the Small Business Commissioner would handle complaints between 13 October 2016 and 7 December 2016, and published draft regulations in February this year. We understand that the key message from respondents to the consultation was that the regulations should be simple so that the Small Business Commissioner’s services are as efficient and effective as possible.

The regulations before us will enable the Small Business Commissioner to accept complaints on payment matters from small business suppliers about their larger clients. This is an important part of the Small Business Commissioner’s role in supporting small business. I commend these regulations to the Committee and I beg to move.

[Lord Jones (Lab)]

My Lords, I thank the Minister for his pithy introduction. The regulations surely have to be welcomed. It must be good news to many thousands of SMEs. I refer to the register of interests: I am president of Flintshire Business Week and Deeside Business Forum, which sits across the England/Wales border and has some 9,000 jobs. It is based at Deeside Industrial Park, which has 260 companies at least, most of which are SMEs. There is considerable interest from companies such as these in the regulations. Do we yet have a commissioner’s name in mind? Who shall choose? Shall it be salaried? What salary might it be?

--- Later in debate ---

[Lord Mendelsohn (Lab)]

My Lords, I am absolutely crestfallen that the noble Lord, Lord Cope, has found the thing that I was going to start my contribution with, which is the phrase in the notes that the regulations will not affect business. My fear is that this is not a statutory instrument that will do the job in the way we hope it will. I want to preface my remarks by saying how nice it is to see the noble Baroness, Lady Neville-Rolfe, in her place. During the passage of the relevant provisions for the Small Business Commissioner in the Bill, she said at one point that she might even consider the role herself. I am pleased that she is still in this House campaigning on many issues, and I have to say that she has been saved by the appointment of an excellent candidate. I welcome Paul Uppal to his role as the Small Business Commissioner. He will make an excellent commissioner because he has great attributes for the role, given his background and approach. I congratulate the Government on securing such a person.

My only fear is that this statutory instrument is an illustration of why the Government are humbling the role before it has a chance of success. No matter what the quality of the person, I see tremendous difficulties ahead in being able to make any meaningful change. Yet again we have gone for a system where we have decided to invent a wheel that has four sides. My concern is that this does not work in any established model or precedent. It does not have any behavioural testing or pilots to demonstrate that it can achieve any of the outcomes. I will go through some of the policy issues and then through the statutory instrument.

First, I was really impressed with the department for its policy background in the Explanatory Notes because this is a huge exercise. The department is to be given huge credit for finding the lowest possible estimation of late-payment debt available in this country. It is certainly true that the BACS survey has far and away the lowest estimates of it for small businesses, by saying that it is just over £14 billion. In fact the average of all the surveys which I found was the Zurich survey, which had £44 billion for SMEs. Why have the Government therefore chosen the veracity of the BACS report? Would the Minister like to tell me, for example, the survey size of that report? I happen to know the answer but I would be keen to hear it from him. Of all the 14 available surveys that I found of late payments, none had a figure as absurd as that. Where does the survey fit in on a sample size—is it at the top, the middle or the end? Can he also tell me for how many years BACS has conducted a survey and what was the methodological change this year to have come out with such a figure? Seeing this figure alone, my concern is that I do not feel that the Government are taking this problem seriously. This will also affect the estimates to come thereafter of what the Government think will be necessary to do this.

Secondly, yet again, I understand the Government’s desperate desire not to do too much and to believe that cultural change, in and of itself, will make a huge difference. I know they will say that the Prompt Payment Code is causing all sorts of wonderful cultural changes that are making a huge difference. We may have that code but I would like to ask a few questions. Can the Minister give me any evidential base whatever to suggest that the Prompt Payment Code has made any change, apart from a Minister who I have found saying, “I’ve spoken to some people and they say they like it”? Can he give me anything with any independent foundation for doing it? Can he demonstrate any example, among the many identified in government reports or in the press, where a company that is a problem late payer and a member of the Prompt Payment Code has been disciplined, chucked out or taken to task for anything that it has done? It is a pretty hard case to make but I would be interested to hear his reflections on that.

It is a shame that the public sector is not included in this provision. I understand that there is a different commissioner and that the argument has always been that because there are definable terms of 30 days, it is not necessary because there is a different mechanism. But I think the overall success of the Small Business Commissioner will be through its ability to get underneath the issues that lie behind problems of late payments. That includes issues around the public sector and its suppliers, where there is a supply chain. It should be able to make the right sort of assessments of that sector. Taking the sector away humbles the Small Business Commissioner’s capacity to take an overall view of late payments. Those are all significant concerns.

I return to the issue about size because it is relevant. I think it is anticipated that the Small Business Commissioner will have establishment costs of £1.1 million and is meant to have a running cost of £1.4 million. I would be grateful to have a breakdown of the staff who comprise that £1.4 million and therefore how many hours of investigative time we think we will have. I also understand that the Government—on the basis of an utterly ridiculous figure of £14.4 billion, but that is another matter—say that the estimate is that 70,000 companies will be referring just under 400,000 disputes, of which 500 will result in full-blown complaints. While I am tempted to ask the Minister what percentage of the overall disputes will therefore result in a full-blown complaint, I can tell him for the benefit of time that it is 0.125%. Can he explain how the Government match that level of complaint to the staffing and what they are required to carry out through the statutory instrument? I have tried on the back of an envelope—in fact, multiple envelopes because it took so long to do the maths—to see how you can spend the amount of money involved in the establishment of it and end up with that number, and I just cannot do it. I would be very grateful if the Minister, on the basis of the bogus number, will tell us how this is meant to operate, how much time is allocated to each dispute, and how that will work. That would be very helpful indeed.

Unfortunately, I have some other issues with the actual drafting of the statutory instrument. I agree with the noble Baroness, Lady Neville-Rolfe, that brevity and simplicity are wonderful. There is nothing like brevity and simplicity and this statutory instrument is nothing like brevity and simplicity. I am tempted to say that I worry when a Government overregulate. This is an example of overregulation, when better regulation would be much more judicious.

The biggest problem I have with the statutory instrument is that fundamentally it regulates the size, not the activity. I talked this through with a lawyer and said, “If I am a big company, how do I change this? I just move the dispute that I have to a small company and I am no longer on the hook for it”. The ability to drive a coach and horses through this and to avoid any form of dispute or mediation or any cost by changing the structure or who holds the debt or who holds the activity is easy within these terms. Which lawyers reviewed this? Which scenarios did they plan for? Did they understand the opportunity to game it? This is important. As we have seen with the application of the role of the Pubs Code Adjudicator, a coach and horses has been driven through that one and absolutely nothing has happened. I would rather the Government were realistic at the very beginning about what was likely to happen.

As we all know, there is always the law of unintended consequences in these matters. In relation to the size, does the Minister think there will be any unintended consequences of setting a number? Will that exclude certain disputes that should be part of it? Should there be provision for the Small Business Commissioner to be able to apply discretion in certain circumstances, rather than it being as prescriptive as it is?

Then we move to the issue in Regulation 3, which is titled, “Requirements before presenting a complaint to the Commissioner”. It says that in order to pursue a complaint,

“the person making the complaint must … communicate the substance of the complaint to the person against whom the complaint is made; and … give that person a reasonable opportunity to deal with it”.

The definition of “a reasonable opportunity” is quite difficult. In truth, it is a payment that is late. We say that we have a condition for late payment, rather similar to that in the public sector, of days on which you can apply interest, and we then specify a reasonable opportunity to deal with it. If it is late, it is late. Again, we have created a huge opportunity for a sense in which a complaint can now be a reasonable complaint and you can probably delay to the average number of days. Whether you believe the bogus BACS survey which said it was 72 days, I think, or the other average that most others identify, which is 90 days, you can still extend much further on the basis of what is a definably reasonable opportunity to deal with it.

Then we have the wonderful paragraph (2). This is always the issue. The Minister correctly identified the problem of a company which may face adverse commercial consequences from raising the issue. It says here:

“The specified circumstances are where the Commissioner considers for this particular complaint, there is sufficient information to suggest that communicating it to the person against whom it is made would have a significant detrimental effect on the commercial interests of the person making it”.


Will the Minister please define for me in detail what this “sufficient information to suggest” is? I think that is a remarkable thing to put down and, again, it fetters the Small Business Commissioner’s scope.

I could go on but I will cut out a few comments because the point is being made. I could go on about the time limit for presenting a complaint. For example, when you are dealing with a company such as Amazon, which many of our small businesses do, it has a procedure which takes a year in the first place. Are we out of scope from the time you make a complaint to when it is defined? Again, it fetters the Small Business Commissioner in a much more serious way. In particular, Regulation 5(4) says:

“Where the complaint or part of the complaint is not made within the time limit set out in paragraph (1), the Commissioner must not entertain the complaint”.


By the way, in this context I am absolutely shocked to see—having had many a debate with the noble Baroness, Lady Neville-Rolfe, on this matter, with huge arguments over “may” or “must”—the remarkable number of times “must” appears in relation to the Small Business Commissioner. Again, he,

“must not entertain the complaint”.

That is also a huge mistake.

On the power of the commissioner to fix time limits, again, we have here perhaps the best powers given to the Small Business Commissioner, which are discretionary. I would like to see an awful lot more of those. On the power of the commissioner to dismiss a complaint, again a charter is given for people to be able to suggest that the complaint can be reasonably dismissed, and there are now eight headings that qualify the decision of the Small Business Commissioner on whether to dismiss a complaint. I spent time with my lawyer, and as a big company you could pull a case together on pretty much half of these anyway, on almost any circumstance. Therefore the Government have now given an ability to argue the case and to create a legal obstacle for the Small Business Commissioner to take up the issue in the first place.

These are huge mistakes. I could go on about the notifications and how overly problematic they are. My basic point is that we will have to pass these things—that is the natural course of things in this place—because we need the Small Business Commissioner up and running. But they are deeply flawed, as they were from the time we tried to raise these issues during the passage of the Act up to now, when they are being put forward in a statutory instrument. The only assurance we can get, apart from some reasonable answers to not unreasonable questions, is on what the mechanisms will be to review it early—not late, as we faced with the Pubs Code Adjudicator, where problems are now faced because we have a restrictive three years for review—more seriously, quickly and appropriately, to ensure that we can adjust the scope and role of the Small Business Commissioner to adequately deal with these issues. I hope that that may mean that there is a new role for the noble Baroness, Lady Neville-Rolfe.

[Lord Henley]

The noble Lord throws a bit of a dampener on the proceedings, which were going quite well before that stage. I will comment on what other noble Lords had to say before I deal with some of his complaints. I am not sure that I will deal with all of them; I will probably write to him in greater detail afterwards. Since he accepted that these regulations will go through, that the Small Business Commissioner has a role and that we have to get him on the move, the sooner we can do that, the better. I will go back to those noble Lords who at least welcomed the regulations—I think he did, but he then took them to pieces and, as I said, threw something of a dampener on the proceedings.

I will start off with the noble Lord’s friend, the noble Lord, Lord Jones, who, as I said, was much politer and kinder about the regulations. I am grateful for that, and I give him an assurance that we have now appointed Mr Paul Uppal—the announcement was made a few days ago—who is a former Member of another place. The post was advertised in the usual way and will be salaried. I am afraid that if my noble friend Lady Neville-Rolfe was looking to get that job, she will have to wait a little while before it is vacant again. As I said, it was advertised in the usual way. I cannot specify exactly why he was chosen as opposed to any others, as that would be invidious and not right, but he was selected after due process and we are grateful to him.

My noble friend Lady Neville-Rolfe also regrets the length of this regulation; it is always difficult to get these matters right. On many other occasions I have moved that various orders be agreed and people have complained that there is not the detail in them. Unfortunately, the point behind regulations of this sort is that one can get into the details that one cannot get in the parent legislation. My noble friend is aware of the parent legislation; she took it through this House, and the noble Lord, Lord Mendelsohn, dealt with it from the Opposition Benches. They know full well that it is not right and proper to get that sort of detail into the original primary legislation, and the point behind these regulations is to get the detail in. I hope that we normally get it about right, but my noble friend Lord Cope teased me over the fact that the Explanatory Memorandum—which I stress is not, I think, part of the regulations, although I can never quite remember what its status is—states that the regulations will have no effect on business. We would obviously all like to make sure that it has an effect on business—and a beneficial effect.

I turn to the comments of the noble Baroness, Lady Golding. I am grateful for her welcome, but one cannot think of passing the Enterprise Act and creating a commissioner as a magic wand that will solve all problems. This is also the general remark I would make to the noble Lord, Lord Mendelsohn, in relation to his various comments, one or two of which I will deal with in greater detail. I can think of very few occasions when legislation can solve problems overnight. There was one Bill with which I had some involvement, the Scrap Metal Dealers Bill, which did quite a lot of what it was targeted to do in the area of metal theft.

In the main, legislation can only do so much. We hope that the Enterprise Act and these regulations will make a big difference. As with so many of these things, however, it is a matter of changing people’s behaviour and the culture of the bigger businesses so that they realise what damage they are doing to others. Legislation can do a certain amount and we have provided the appropriate resources for the commissioner; at least, I think they are appropriate. The figures I have—I think these are the figures that the noble Lord, Lord Mendelsohn, asked to be confirmed—are that the set-up costs are in the order of £1 million and the annual running costs will be roughly £1.4 million, most of that going on staff costs. These must be guesses but it is estimated that there may be 390,000 enquiries and 500 complaints. We think that is adequate for the commissioner at the moment but there is scope for the Secretary of State to increase the resources available to the commissioner if appropriate. He will obviously take advice from the commissioner about what he does and try to make sure he gets it right.

I make one more remark on the commissioner and the work he has already done. My noble friend Lord Cope commented on the website, suggesting that it was not clear enough and should do more, including cross-referencing with other bodies. I am sure that the commissioner will be grateful for my noble friend’s suggestion and that it will be looked at in due course. It is always difficult to get your website exactly right; some are better than others. One can take advice, and I am sure that the advice of my noble friends will be listened to by the commissioner in due course.

[Baroness Neville-Rolfe]

Before my noble friend sits down, I reiterate that I very much support the regulations. I also asked, I think, what arrangements there were for review, because this is a new commissioner. I expect that the department has some standard review provision for looking at how it works, and I am interested in that.

[Lord Henley]

I can give my noble friend an assurance that I was not about to sit down—unless others are desperate to get on to the other instruments—because I still had a certain amount to deal with from the noble Lord, Lord Mendelsohn, who would probably be upset if I left him at this early stage. I can, however, assure my noble friend that we will keep this under review. As I made clear, we are thinking of about £1.4 million as the budget being given to the commissioner for the annual running costs. My right honourable friend can keep that, and the size of it, under review. It is not just about money but about how they are getting on. The department will continue to keep these matters under review.

The noble Lord, Lord Mendelsohn, started off his throwing-a-dampener-on-it speech by questioning why we would use the BACS survey and saying that we should have used another survey that gave a higher figure. I will not go into details about which survey will be the best and which had the largest number of people involved in it to get the right figure. I do not know whether there is necessarily a right figure. All we can agree on is that £14.2 billion is a very high figure. The figures that the noble Lord quoted from other surveys are equally high and worrying. The important point is that something ought to be done to assist small businesses to ensure they do this properly. It is clear that the Government are taking this issue seriously from the fact that we sought parliamentary approval for the Enterprise Act and that, under that Act, we are now doing various things, of which the Small Business Commissioner and his staff are one small part. I do not think the noble Lord can accuse the Government of not taking this seriously. The important point is: we have put some resources in; we have appointed a good person to be that commissioner; and he will continue to pursue the appropriate measures available to him.

The noble Lord made the usual complaints people do about the drafting. He said it was too detailed and then that there was not enough—I was rather lost on that. The drafting went through the usual process. We consulted on it as we should. Generally, other than from the noble Lord, we have had a fairly favourable response to the drafting. I am sorry if he finds it overly legalistic. That is just the way things are drafted.

The noble Lord then asked me a rather extraordinary question: what are the unintended consequences of these regulations? If I knew what any unintended consequences were and that they would be detrimental to one or other person, or to the small business sector as a whole, I would not be moving them. I am afraid the noble Lord will have to accept that I do not have the wisdom of prophecy that he seems to think Ministers should have. I will try to improve. If I knew what the unintended consequences were, I would do something about them. We feel that the regulations will have a good effect and be one small step in helping small businesses. They will try to improve their lot and cut down the very large figure of £14.2 billion, or whatever larger figure the noble Lord would like to have.

Turning to another matter that I suppose is faintly relevant to what we are dealing with, the noble Lord asked about the evidence of the impact of the Prompt Payment Code. I can tell him that we actively monitor and enforce it. It has been successful in assisting business to recover debt, but also in highlighting best practice. That again is important as part of the necessity for the change of culture.

I appreciate that the noble Lord had other questions and that he would like further details on why we wanted BACS—

[Lord Mendelsohn]

I will now try to give the Minister some sense of why I invested in him the powers of prophecy, as well as suggesting that rather than my being a complete dampener on this, he should look to scale the heights to deal with this issue. My question about unintended consequences comes down to this simple point. If there are 500 cases, you are talking about dealing with £35 million-worth of disputes, tops. Does he believe that the figure is £14.2 billion? The sample size was 304, which is below the statistical level on which we are meant to judge any survey with any certainty; in any serious form, no one would ever consider anything under 500. This is good enough for a press release, but why the Government suddenly believe that it is worth putting in a policy framework is another matter. From surveys that are robust, £44 billion is the SME number. Does he think that trying to tackle disputes relating to £35 million is sufficient to create cultural change? The unintended consequence of this statutory instrument is that late payments will get higher if you do not have the resource to challenge the right level and number of disputes. When I said “unintended consequence” it was all about that.

With his hand on his heart, is the Minister able to say that he feels that this statutory instrument has sufficient scale to make a meaningful difference in culture or any other practice? That is the key.

[Lord Henley]

Genuinely, hand on my heart, in every possible way I honestly think this will make a difference. Changing that culture is the most important part of what we need to do. A commissioner himself can by his actions do a certain amount, by dealing with those 500 complaints a year, or however many there are; as I said, that is just an estimate, and we can increase resources if we need more. However, it is the existence of a commissioner—of the website and everything else —that can make the biggest change. That is why I gave assurances to my noble friend Lord Cope about getting the website and the advice right, which is so important.

Hand on heart, I believe that we can make a difference. I hope that that will be the case and that, in a year’s time—perhaps privately outside somewhere, or in debate on some other matter—the noble Lord, Lord Mendelsohn, will be kind enough to join his noble friends and say how well we are doing on this. We occasionally get praise from him, and I look forward to that. An unintended consequence of this debate would be his coming back to me with a degree of thanks.

Motion agreed.