Small Businesses: Retention

Lord Henley Excerpts

Wednesday 21st February 2018 Lords Chamber

[Lord Aberdare]

To ask Her Majesty’s Government, in the light of the loss of retention monies by small firms following the insolvency of Carillion, what steps they are taking to provide protection against such losses in the future.

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

My Lords, the Government are committed to improving payment practices. Our consultation on the contractual practice of cash retention, alongside a parallel consultation on the effectiveness of the 2011 changes to the Construction Act 1996, closed on 19 January. We are now considering the responses.

[Lord Aberdare (CB)]

My Lords, retentions as currently practised mean that not only do small construction firms have to wait to be paid for work that they have done, often for several years, but that when a client company becomes insolvent they never get paid at all. Carillion alone held some £700 million of retentions, which its suppliers have now lost. Can the Minister assure us that immediate steps will now be taken to protect small firms from the loss of funds they are owed—for example, by ring-fencing retention funds in secure trust accounts? Will he look at the 10-minute rule Bill recently introduced in the other place by Peter Aldous MP, with widespread cross-party and industry support, as a possible approach to achieving this? When will something happen after all the promises we have had over the years?

[Lord Henley]

My Lords, I agree with some of the noble Lord’s analysis about problems related to retention, a practice that is common within the construction industry but which has negative impacts. That is why we had the consultation, as I think he knows. We obviously want to consider the results of that consultation and in doing so we will look, as he has suggested, at Peter Aldous’s Bill and see whether it is appropriate that we can take further steps. But the consultation having been completed, we need to consider it first.

[Lord Stevenson of Balmacara (Lab)]

My Lords, you have to wonder why this Government have it in for SMEs. We have a Small Business Commissioner who seems to have none of the powers necessary to do anything about the late payments scandal that they have to face; and on retention, as we have just heard, very good and well-argued proposals have been played into the long grass and will not see the light of day for some time, as the Minister seemed to suggest. Should this not be put immediately to the task force that the Secretary of State has put together to advise on how to mitigate the Carillion disaster?

[Lord Henley]

My Lords, as I said, we are considering these matters. The noble Lord quite rightly points out the task force that my right honourable friend has set up; I add that the Small Business Commissioner, Paul Uppal, will sit on that task force. We will consider all the options as a result of that but we will not rush into legislation; we are going to consider what is appropriate. Perhaps we can give some support to Peter Aldous’s Bill but these matters need to be considered and we will then deal with the problem.

[Lord Naseby (Con)]

My Lords, if the retention moneys at Carillion have gone walkabout, surely that is the legal responsibility of the board of directors of that company and prosecutions should follow accordingly. But in relation to retention moneys in general, in addition to what my colleague the noble Lord, Lord Aberdare, suggested, could we not consider the simple principle that if you buy a house and pay a deposit, that money rests with the lawyers for the transaction until such time as completion is made?

[Lord Henley]

My Lords, I am not going to comment on the first part of my noble friend’s question as that is obviously a matter for the official receiver and the legal authorities more generally. On his more general points about retention moneys, we believe they have negative impacts. We want to consider the right way forward, and will then take action.

[Baroness Burt of Solihull (LD)]

Retention has been described by the Federation of Small Businesses as a total scam. Now industry is coming together to abolish retention, to have project bank accounts to manage large procurement projects, and to remove the incentives for late payments and bad cash-flow practices by the Carillions of this world. I understand what the Minister said about considering the consultation, but will the Government join in and implement project bank accounts for large government projects?

[Lord Henley]

Again, my Lords, I am not going to make promises at this stage about what we will do because, as I made clear, we want to consider the consultation. We have also made clear that we recognise that retention, which is common in the construction industry, can have negative impacts. That is why we set up the Small Business Commissioner to assist on late payments. As the noble Baroness will be aware, we had a debate on that matter only the other day. Things are happening. Things will continue to happen. We will continue to look at that consultation and we will then take action.

[Lord Lea of Crondall (Lab)]

My Lords, will the Minister comment on the ongoing role and remit of the Financial Conduct Authority, not only on the narrow point but on such questions as its relation with the big four auditing companies? Is this within the scope of this separate inquiry?

[Lord Henley]

I think the noble Lord is going somewhat beyond the Question on the Order Paper and I do not think I ought to comment on that at this stage. We are looking at the practice of retention. I have made clear where we are, and we will act when appropriate.

[Lord O’Neill of Clackmannan (Lab)]

Is the Minister aware that his consultation process started as a result of an undertaking by one of his colleagues to have a review, which started some two years ago? I declare an interest in this as set out in the register. This is far too long a period to say that we are just awaiting a further consultation. How long does this process have to take and how many businesses are going to go bankrupt? It is not just the Carillions of this world. It is small builders, 95% of which employ fewer than 10 people, who are intimidated by companies from seeking the legal redress which would be the obvious route to get the money to which they are entitled.

[Lord Henley]

The noble Lord is quite right to point out that this started during the passage of the 2016 Act as a result of promises made by my noble friend Lady Neville-Rolfe. We instituted a report into this matter to gather evidence and following that report late last year we instituted the consultation. The consultation ended in January. That is why we are now considering that consultation, and we will act when appropriate.