National Security and Investment Bill

Lord Leigh of Hurley Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 4th February 2021 Lords Chamber

[Lord Leigh of Hurley (Con) [V]]

My Lords, I really do have to declare some interests in the context of this Bill. I am the senior partner of Cavendish Corporate Finance, which specialises in advising owners of SMEs on their exit, typically by trade sale or to private equity. I started Cavendish some 30 years ago, and mergers and acquisitions has been my line of work for some 35 years. My business has grown, as nowadays entrepreneurs frequently start a business specifically to grow it and then sell it after a few years, to let another organisation take over with different skill sets as the business outgrows its original founders. In days gone by, family businesses were just that—kept in families for generations. Although I have sold an eighth-generation family business, that is very unusual. Years ago, selling out used to have negative connotations; today, it is seen as mark of success and to be applauded. As a result, SMEs have flourished in the UK, accounting for over 95% of enterprises and some two-thirds of employment.

The UK is seen as a world leader in facilitating new businesses to start up and grow. Much has facilitated this explosion in entrepreneurial flair. Recent Governments have made it easy to start a business, and the combination of relatively low regulation, easy access to finance, and a can-do attitude—unique in Europe—has prevailed. I only hope that the Government do not bring it all to a crashing halt by increasing capital gains tax rates in the Budget next month, but that is not a subject for today.

What is for today is to recognise that FDI here has been a tremendous success. We are consistently second or third in the world, and have long been the first in Europe—and those investors can choose to invest anywhere in the world. When they are asked why, one reason cited is our high standing in the World Bank index of ease of doing business; that includes our flexibility in the labour market, which is second to none. I am looking forward to the maiden speech of the noble Lord, Lord Woodley, who may address that subject.

Another really important aspect, and top of many investors’ lists, has been our rule of law. Investors are hugely attracted to the unique UK legal system, and one of its key features is certainty. We may be about to lose that key plus point.

Many speakers here will, like my noble friend Lady Noakes and me, instinctively want the Government to push for economic growth through market freedom, allowing business to flourish away from government interference. Indeed, I am the chairman for the Lords of the Campaign for Economic Growth. Our president is my noble friend Lord Young of Graffham—a role model for many of us—and we see the dilemma that the Government face, brought into sharp focus by the issues concerning 5G and Huawei.

Economic decisions taken for political reasons rarely lead to good results. As we see in this Bill, the definitions are hard to determine. Few companies are in one sector alone; they are in many. Large numbers of acquisitive, seemingly British companies, particularly those backed by private equity, are in fact technically owned by funds based in Guernsey. Uncertainty in investment leads to only one thing: an increase in the return demanded as compensation, so lowering the price, as a result of the risk factors, and of course lowering subsequent tax revenue.

We can readily observe overseas investors stalling transactions at the moment, just to see where this is going. Why risk investing in a UK company if, when the company becomes so successful that it attracts overseas interest, the process to sell it is hampered, and may even be barred, thus reducing its value? I say “may” even be barred, because it will not be possible to give certainty. Warm words might come from this Government, which have been rightly trusted by business, but this legislation will give less competent and less business-friendly Administrations in the future—they might occur—the power to make life difficult for investors from a particular country that they just do not want to make welcome in the UK.

A former Trade Minister told me this week that he wanted to see 10 Downing Street look at every piece of new legislation through the prism of an SME. Is it helpful or is it unhelpful? This Bill is not helpful—or at least, aspects of it are not helpful. So I hope that BEIS, under its new excellent Secretary of State, will table some of the amendments that were discussed in the Commons, and were suggested by organisations such as the corporate finance faculty of the Institute of Chartered Accountants, of which I had at one point the honour to chair.

The proposed investment security unit may well be swamped: there are some 10,000 M&A deals every year. I cannot see how anyone could have made the estimate of up to 1,830 referrals a year—what an odd number. In any event, how can people possibly know? We need to look at really good precedent models like the Takeover Panel, whose appeals committee I served on, which gives guidance, help and advice to ensure an efficient market. Its practice notes could be emulated, and we must have a fast-track pre-clearing system, together with a big hike in the thresholds and the creation of sensible white-list exemptions to avoid a massive crunch in transactions.

We need much greater clarity on what is national security, and fast problem-resolving mechanisms, with a recognition that some industries, such as cybertech, will have real dual-use issues, whereby a small proportion of their business might be caught, thereby prejudicing their chance of attracting investment, as the exit will be hampered.

The UK has a proud reputation as an excellent place to invest and do business. The phenomenal growth of fintech in the UK did not happen by chance. Look at the people running these businesses, and look at where the money has come from. They have chosen the UK as they believe in the UK as a country with a mindset for standing back and letting business get on with generating wealth for our citizens. Let us not disappoint them.

National Security and Investment Bill

Lord Leigh of Hurley Excerpts

Committee stage & Lords Hansard
Tuesday 2nd March 2021 Grand Committee

Moved by

[Lord Leigh of Hurley]

3: Clause 1, page 1, line 11, leave out “or contemplation”

[Lord Leigh of Hurley (Con)]

My Lords, I thank my noble friend the Minister and his officials for his briefing and help. I suppose I should thank him also for his letter of 18 minutes before the start of this debate, but that has been explained adequately, so we look forward to reading that in depth. I also thank others who have been helpful on this amendment and the Bill, particularly friends from the BVCA, the ICAEW and Herbert Smith.

I think we all have a common purpose here; we all know what we want to achieve, and this is not a party-political matter. We all recognise that, last year, there was £170 billion of FDI into the UK. We have been so consistently successful in the UK at FDI that we frequently, if not for a decade or so, come second in the world league tables. We all need to do what we can not to damage our reputation as a country that is easy to invest in, with clarity and the rule of law not subject to the power of lobbying and political whims. I believe that there is unanimity in that respect.

The Bill must strike a balance between national security on the one hand and economic growth on the other. At present, it needs amending by amendments such as mine and those of fellow Peers if it is to strike that balance. Funnily enough, I read Isabel Hardman’s book over the weekend, Why We Get the Wrong Politicians. In it she quotes, anonymously, an MP who says, “You can ram Bills through in the Commons, but it’s much harder in the Lords.” I do not want to let her down.



I declare my interests. I am the senior partner of Cavendish Corporate Finance, which specialises in selling businesses, typically private businesses. Nearly all our clients are SMEs, so I have a lot of experience there. Sixty per cent or so of our buyers of our clients’ businesses are based overseas, the principal country being the United States of America, but they have included pretty much most industrial developed countries of the world, including in Asia. Cavendish is, of course, part of finnCap, the AIM nomad broker. So I have worked hard to encourage overseas investment. I was lucky enough to find myself on the business trip to China with David Cameron a few years ago.

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[Lord Grimstone of Boscobel (Con)]

The noble Lord, Lord Clement-Jones, and I have had the pleasure of debating these matters at a meeting prior to this Committee, and I must confess that I was probably the author of the fishing analogy, which I may live to regret. The point is that when you are dealing with matters of national security, and these matters are so important, it is perfectly appropriate to use a large net to put the fish in, but then it becomes very important that the way your screening unit works removes fish from that net as expeditiously and efficiently as possible.

[Lord Leigh of Hurley (Con)]

My Lords, I thank the Minister for his response. As the noble Lord, Lord Fox, pointed out, he almost certainly has much greater experience than all of us in this Room combined in advising on transactions. For the avoidance of doubt, sadly the noble Lord, Lord Fox, has not paid me any fees in any matter, as far as I am aware, but I travel in hope. I have to disappoint my noble friend Lord Vaizey, because it does not look like the Minister will accept his very first amendment in whole. On the other hand, I do not think he has provided a slam-dunk answer, as he hoped, to reject Amendments 3 and 4 in particular.

We are very lucky to have the benefit of my noble friend Lord Lansley’s experience and wisdom from the Enterprise Act 2002, and I accept that that is where it came from. However, I do not quite see why there should be a cut-and-paste approach. The CMA will be dealing with a relatively small number of mergers of largely public companies. This will be dealing with all sorts, from minority investments of a few thousand pounds in 15% stakes to IP and—forgive me—a completely different kettle of fish. Therefore, the last thing one wants to do is to have to rely on a traditional review to see this sorted out. That would be hugely expensive and singularly inappropriate for most of the transactions envisaged, which will be of a much larger volume than the CMA and the legislation were structured to deal with. I very much hope that the Minister will have a chance to reflect on this and that he will be persuaded in particular by the point made by the noble Baroness, Lady Bowles—arrangements in progress must be strong enough. I beg leave to withdraw.

Amendment 3 withdrawn.

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[Baroness Noakes (Con)]

My Lords, the voiding of a commercial transaction that has already taken place is a massive penalty for those who have entered into the transaction. Parliament should be very wary of legislating in this way if it is not absolutely necessary. I believe that, as drafted, the Bill goes beyond what is necessary.

A transaction may not have been notified where the parties to it did not believe that they were covered by the legislation, perhaps relying on a misinterpretation of the statement that will come out under Clause 3 or perhaps a misunderstanding of advice received from the investment security unit about the transaction. These could occur in situations of good faith, yet the Act is capable of inflicting the penalty of voiding the transaction even in such an instance.

I do not doubt that voiding a transaction may well be the right result if the transaction really does engage national security, but even then it is not necessarily the case that every transaction should be voided. We have to understand that Clause 13 is one of the parts of the Bill that will drive unnecessary voluntary notification, which I know that the Government will wish to avoid. The amendments in this group are helpful and proportionate and I hope that the Government can accept one of the formulations.

[Lord Leigh of Hurley (Con)]

My Lords, we have heard from a chartered accountant, a banker and a lawyer all in unanimity; it is very worrying. As I understand it, this approach is consistent with some regimes in certain countries. The idea of having a transaction fully voided would lead to many innocent third parties being in limbo. Would it not be better that a transaction or certain parts of it were voidable, as some parts of the transaction may not be in any way relevant to national security. That gives HM Government more flexibility. By being voidable, it allows for negotiation, discussion and parts perhaps to be voided and not the whole thing.

Once again, insisting that the transaction could be voided in legislation will simply deter overseas investors and buyers because it is a huge amount of uncertainty to have such a black and white separation. The amendments still allow for the dictum of the noble Lord, Lord Callanan, in respect of Clause 15 of non-notified acquisitions being able to be retrospectively validated rather than retrospectively invalidated. Giving the Government maximum flexibility seems a wise and good thing to seek.

[Lord Fox (LD)]

I want to pick up where the noble Lord, Lord Leigh, finished: it seems almost punitively value-destroying to have a mandatory process. There will clearly be times when voiding will be the inevitable consequence, but there are others when a retrospective approval would be best for the country, the value, the shareholders, the employees and all the other third parties connected to that business. To lock the Government into auto-voiding seems unnecessary. It may be designed to put people off from not reporting in future but, by their nature, those who do not report probably are not aware of these sanctions, so it is unlikely to have that deterrent effect.

On Amendments 41 and 44, the “Waste Land” amendments, certainty comes up again, as predicted. All they do is ask for a clear signal rather than something simply not happening being the signal. The noble Lord, Lord Hodgson, raised external messaging, but such clarity would also help build a body of case law which would help future practitioners understand what they should and should not do. Having that case law and those examples clearly delineated by a full stop rather than the whimper that is currently enshrined in law would be a much better way of exposing such cases for the textbook.

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[The Deputy Chairman of Committees (Lord Caine) (Con)]

I have received one request to speak after the Minister, from the noble Lord, Lord Leigh of Hurley.

[Lord Leigh of Hurley (Con)]

Does my noble friend the Minister recognise that some countries allow voiding? He pointed out some that do not, but some do. Does he agree that if a transaction is voidable, it could still be declared void?

[Lord Callanan (Con)]

Could my noble friend repeat the question please?

[Lord Leigh of Hurley (Con)]

If the legislation says a transaction is voidable, it could still be declared void.

[Lord Callanan (Con)]

Yes, but we are arguing it should be declared void by automatic obligation of statute, rather than it being a power the Secretary of State could exercise. I have just explained that.

National Security and Investment Bill

Lord Leigh of Hurley Excerpts

Committee stage
Tuesday 9th March 2021 Grand Committee

[The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)]

The noble Lord, Lord Bilimoria, has withdrawn so I call the next speaker, the noble Lord, Lord Leigh of Hurley.

[Lord Leigh of Hurley (Con)]

My Lords, the Bill currently provides that the mandatory filing requirement applies equally to all investors, as my noble friend Lord Vaizey said. This is despite the Government stating quite rightly that domestic investors are inherently less likely to pose a national security risk. The Bill is ultimately about managing risk, so we need to ensure that the notifications that the ISU receives are the right sample. Exempting UK nationals from this process would be a far from proportionate approach. Since we are in the business of managing risk in a proportionate manner, we should consider whether investors from specific allies—Australia, Canada, the US and New Zealand have been suggested—should be exempt since, again, the evidence strongly suggests that such investments are less likely to pose a national security risk, although I will come on to one caveat at the end of my remarks.

This aspect would also align more closely with some of our competitor jurisdictions. In any event, since national security is always paramount, it is worth noting that these amendments concern only the mandatory filing requirement. The Secretary of State would remain fully empowered to call in such transactions for review even if they concerned our citizens or allies or were below the threshold for control. That is an important distinction. I hope it means that lots of potential acquisitions by UK players will not get covered by notifiable regulations if we approve these amendments.

I am sure that the legislation is not meant to cover the situation where someone starts a business with a great idea and, say, £1,000. That business might touch on a number of sectors including, say, defence. We know that the sector definitions are very widely drawn. This entrepreneur then goes to some family and friends to seek funding, which might be through an EIS or, even better, an SEIS or possibly an EIS fund. The family and friends are all local. I know one investor who has only ever invested—with great success—in businesses run by someone he has personally met in his local pub. Such investors are vital to the UK economy and, in my opinion, do not carry a risk to security any greater than the person who started the business. As we currently have no size threshold at all, they would be caught by the Bill. It would be a great shame if they decided that they did not want to wait the 30 days or more for the Secretary of State to opine.

We all know the purpose of the Bill and it is not to restrict UK investors investing in UK companies. If we go down the route of exempting UK companies, we need to look more carefully at the definition of a UK company, which Amendment 96 seeks to do. I recognise that this is difficult. For example, many companies have private equity investment in them. They are clearly UK companies with a UK HQ, UK board and UK business but because the general partner investor may be based in, say, Guernsey, for the limited partners requirement—and the limited partner is almost certainly based abroad—they would need to be treated as a UK company to ensure a level playing field.

My noble friend Lady Noakes and the noble Baroness, Lady Bennett of Manor Castle, have made some valid points. It is indeed true, for example, that many companies which are essentially Chinese are listed on NASDAQ. Would we call them American or Chinese? There has to be some very careful examination.

My last concern, which I mentioned in respect of Amendment 95, is to stop shell companies being created in countries such as Australia. Under these amendments, a shell company could buy a UK tech business and be sold immediately thereafter to a non-friendly company. Undertakings would therefore have to be put in to protect against that situation.

[Lord Fox (LD)]

My Lords, I agree with the analysis of the noble Lord, Lord Vaizey, that Her Majesty’s Government have underestimated the potential workload that this unit will get, but I am not convinced that his solution to reducing that workload is the right one. We have heard many speeches but I would single out those of my noble friend Lady Bowles, the noble Baroness, Lady Noakes, and the noble Lord, Lord Lansley, as reasons why we should not be separating out one set of companies due to their nationality. The noble Lord made the point clearly that the criterion should be: is it or is it not a national security risk, rather than, does it or does it not come from Hampshire or New Hampshire? That should be the rule running through this.

The noble Lord, Lord Leigh, when moving into caveat territory, started to explain why singling out foreign companies becomes an extraordinarily difficult thing to do. First, what is one, and is it a shell company? Is it listed on NASDAQ but actually resident in Beijing? Those kinds of complications start to point to the Government’s analysis that all companies are in. Clearly, it will be easier for the company whose owner your friend meets in a pub to get through the process and not be called in, compared with one that hails from the Far East, for example. Surely, the process should be the efficiency with which the unit can deal with and dismiss issues quickly, rather than accidentally filtering out things that we should not.

On the concept that, “Our friends are our friends, so we include them as ourselves”, the noble Baroness, Lady Noakes, made the wider point about access to the technology. Access can be cut off by our friends as much as by ourselves or, indeed, by external companies. I am sorry, but I am going to repeat the example I gave at Second Reading. A British company with a US-based subsidiary took the technology to the United States, started to produce it and made one small amendment to that technology. The use and sale of the technology back to the UK was then blocked by the Department of Defense under export controls, because it considered it to then be United States strategic technology. I am sure that such things happen all the time—this example is just one that I happen to know about.

Regional agnosticism, the gospel according to the noble Lord, Lord Lansley, is the sensible approach here, and I hope that the Minister can explain his views on this issue.

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[Lord Leigh of Hurley (Con)]

My Lords, I will speak to Amendment 17, which is in my name. I thank the noble Baroness, Lady Hayter, for her comments in respect of her amendment, which might actually be a better amendment than mine but none the less would achieve much the same thing. She probably does it in a more elegant way, but the purpose of my amendment is to understand the logic here and to persuade my noble friend the Minister that he should revert to 25% throughout.

The mandatory notification obligation in Clause 6(2)(b), which the noble Baroness, Lady Hayter, wants to delete, is triggered as a result of acquiring over 15% of shareholding or voting rights. In paragraph 52 and elsewhere, the White Paper specifies 25% but forecasts 15% for notifiable acquisitions. Accordingly, it is not, and is not intended to be, consistent with Clause 8, as the noble Baroness said, but that leads us into problems. Let us try to walk through this. It is complicated.

As I read it, Clause 6 is there so that the Secretary of State is given a mandatory notification for them to consider whether a trigger event has happened. Let us look at what a trigger event is, then. For that, we have to rely on Clause 8 to see under what definitions a people has gained control. Clause 8 lists four situations, three of which are where the shareholding is 25% or more. That is fine, but that clearly does not apply in a 15% situation. So you have to rely on the fourth situation, which is set out in Clause 8(8), which bites because it is the scenario where there is the ability, alone or with others,

“materially to influence the policy of the entity.”

Therefore, if an investor goes from, say, 14% to 20%, a lot of work has to be undertaken to see whether that person can materially influence the policy. If the threshold was 25%, there would be no need to do this. So given that it is most unlikely that a sub-25% shareholder can materially alter the policy—more importantly, this will be hard to determine in practice, as the noble Baroness, Lady Hayter, said—are we not creating an unnecessary problem for ourselves? What does “materially influence the policy” mean anyway? Which policy? All policies? Dividend policy? Maybe. Hiring and firing policy? Most unlikely. Again, this will lead to consternation and commercial agreements on shareholders’ rights having to be implemented, which will be hard to negotiate because, when you enter this sort of area, there will be uncertainty over whether you can materially alter policy.

In my plea for certainty and clarity, can we make it 25% throughout? The risk of a 15% shareholder throwing their weight around to demand that action be taken to change a policy that would be against our national interest is somewhat remote. I suggest that, with a 15% threshold, there will be significantly more cases to consider, the overwhelming majority of which will not have national security implications. The current filing threshold of 15% is significantly below the thresholds used in a number of other major foreign direct investment regimes. France’s is 25%, which the amendment proposes, and Canada’s is 33.3%. I note that my noble friend Lord Vaizey is not due to speak on this group, unfortunately, but if he did I am sure that he would continue to encourage the Minister to look to Canada rather than France, which is perhaps a natural progression.

I am aware that some countries have a 15% threshold, but they are not jurisdictions seen as international business headquarters or centres of international business in the same way as we are, and we have to remember that there is a difference. Considering the volume of transactions, it will even, I suggest, lead to transactions that pose a national risk being overlooked because of the volume generated by this very low, 15% threshold.

While we are on this clause, can the Minister help me with Clause 6(3), which is relevant to the clause we are debating? It states:

“But a notifiable acquisition does not take place if complying with the requirement to give a mandatory notice under section 14(1) in relation to the gaining of control, or the acquisition of the right or interest, would be impossible for the person within subsection (2).”


What does “would be impossible” mean? I have asked around, and no one I have asked can be sure. Is this when a public company’s shareholder trips over 15%? What does “complying … would be impossible” mean? Could we all argue that it is impossible, give all sorts of reasons unspecified and that is the end of it? If much, much better brains than mine cannot understand the clause, it must need amending. I cannot amend it because I do not know what it is trying to achieve, but it cannot be good law to have clauses which are not immediately intelligible to, if not the layman, then the reasonably well-informed reader.

The whole of Clause 6 is difficult. It talks about regulations we have not seen and then gives power for those regulations to be amended at will under subsection (5). I think subsection (5) is where a white list is introduced in the regulations, but it, and subsection (6) allow carte blanche and, accordingly, more uncertainty. Can the Minister commit to look at Clause 6 again, specifically with the amendment I have tabled and with the amendment that he can see I will perhaps have to table on Report? Amendment 94, tabled by the noble Lord, Lord Fox, which we discussed the other day, would have helped. Can the Minister give some assurances that parliamentary scrutiny will be given to these regulations?

Amendment 17 looks to strike a more proportionate balance between protecting national security and reducing unnecessary burdens on investors. We want to be seen as an investment-friendly country.

[Baroness Bowles of Berkhamsted (LD) [V]]

My Lords, I thank noble Lords for introducing their amendments and exploring the reasoning behind them, which I have found helpful. I put my name down to speak to Amendment 17, which was signed by my noble friend Lord Clement-Jones, for whom I am broadly substituting because he is regrettably unavailable until later today. Like the noble Baroness, Lady Hayter, I was wondering why the Government chose 15% as the threshold above which a notification would become mandatory.

On the previous group, I wondered whether we could have different thresholds for different reasons. That would not be without precedent. For example, Australia has different percentage thresholds for lesser and more sensitive assets and different business value thresholds depending on the country of the acquirer. However, here we have 15%, which might be a number above which you fear an activist shareholder, but why?

In the UK, shareholders get some additional rights at 5%: they can go to court to prevent the conversion of a public company to a private company; they can call a general meeting; they can require the circulation of a written resolution to shareholders in a private company; or they can require the passing of a resolution at an annual general meeting of a public company. At 10%, you can call a poll vote on a resolution. At more than 10%, in a private company, you can prevent a meeting being held at short notice. At 15%, you can apply to the court to cancel a variation of class rights, provided that the shareholders have not consented to or voted in favour of the variation. Getting to 25% is significant, because it gives the right to prevent the passing of a special resolution, which could affect various articles and other things. I cannot see that preventing a change in class rights, assuming that a court would agree, is significant. I am slightly bemused about where that 15% number was plucked from.

We get to the point about whether fear of an activist shareholder is what this is all about. We hear of the insistence on having a director, when there is a certain quantity of shares, but they have to be able to control all the other directors, which does not always happen. It brings to the fore a thought about who owns the other shares, which would have to be taken into account in any assessments. Conditions might then be put on a company in respect of what happens to other shareholders to allow a transaction to pass.

As the noble Lord, Lord Leigh, explained, this makes something more complicated for reasons that do not yet seem clear. There are surely other inherent safeguards that would do the job. From that point of view, I support Amendment 17 signed by my noble friend but, as has been explained, there are other ways in which it could be achieved.

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[The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)]

I have received a request from the noble Lord, Lord Leigh of Hurley, to speak after the Minister. I call the noble Lord.

[Lord Leigh of Hurley (Con)]

I thank my noble friend the Minister for his very considered comments, in particular his explanation of Clause 6(3). I think it allows a coach and horses to be driven through most of this legislation if someone can claim an impossibility. The examples he gave were excellent but there will be many other examples where people can claim an impossible circumstance. We will come on later to talk about, for example, the position of administrators and liquidators, and I can think of many others as well. I would have thought Clause 6(3) needed refinement.

Both the Minister and the noble Lord, Lord Fox, mentioned “materially control” as opposed to “materially influence”. There is a difference and this is not about materially controlling but about materially influencing. Regarding Clause 8(8), I accept that there are definitions elsewhere of materially influencing the policy. However, I remain of the view that it is not possible below 15%, or indeed below 25%, to materially influence the policy as far as national security is concerned. Therefore, I very much hope that my noble friend the Minister has a chance to reflect on this specifically before Report.

[Lord Callanan (Con)]

I will take that as a comment and not as a question. I continue to look at all aspects of the Bill to see how they can be improved.

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Moved by

[Lord Leigh of Hurley]

20: Clause 7, page 5, line 10, at end insert “, save that any entity that has annual turnover in the United Kingdom less than £10 million is not a qualifying entity for the purposes of this Act (other than in circumstances where the acquisition of that entity is by means of artificial arrangements which do not reflect economic reality and are intended to circumvent the provisions of the Act).”
Member’s explanatory statement
This amendment, and the amendment to page 5, line 20 in the name of Lord Leigh of Hurley, seek to introduce value thresholds for qualifying entities and assets (subject to anti-avoidance provisions to prevent the circumvention of the Act), which would bring the NSI regime in line with other leading foreign investment regimes that have de minimis financial thresholds for notification.

[Lord Leigh of Hurley (Con)]

My Lords, the Bill is probably more important than many people have realised. I suspect it is not by coincidence that, as I was pleasantly surprised to read in my Sunday papers—on the front page of the business news, no less—it has finally attracted attention from the business community. It has, to be honest, been a bit slow in picking up the significance and importance of this Bill. I am delighted that the noble Lord, Lord Bilimoria, will be speaking to this group of amendments, representing as he does the most important business representative body.

There are significant concerns. Amendment 20 would achieve consistency with other regimes which have de minimis thresholds for notification. A key concern is not to dampen innovation in the UK, where vast VC investment is essential to the growth of businesses, particularly in the tech sector, where we have been spectacularly successful. The cost of investment is high for people watching every penny in a start-up. These are the most mobile entrepreneurs, of course. People just graduating or completing a PhD can choose pretty much any country in the world to start their business. They often start their business knowing it will need a lot of capital to be attractive, and possibly hoping it will be sold to realise capital gain. So, impediments will be a deterrent, particularly for small businesses.

Equally, investors in small businesses want to be sure they can obtain a clean and simple exit. I know that tech businesses can go for astonishingly high valuations and revenue multiples, much to the horror of people like me and, I suspect, other noble Lords in this Committee, who were brought up to regard post-tax profits multiples of seven as perfectly respectable, and are astonished to see revenue multiples of seven on transactions. What we might regard as a small business can have a huge valuation. I hope the Minister finds an acceptable number for a de minimis threshold and, as a result, cuts out a lot of red tape for small businesses, which are looking for government to honour their commitment in these happy post-Brexit days to less red tape for business people—particularly from this Government. Introducing the value thresholds of £10 million in annual turnover in the UK for qualifying entities and £10 million gross value for qualifying assets, subject to anti-avoidance provisions, is a proportionate approach. But, obviously, we look to the Minister to suggest another number if he thinks that is appropriate.

Amendment 52A, which is also in my name, is extremely important. It introduces a fast-track process for transactions that clearly might not raise national security concerns, but which none the less need to be notified due to their targeted activities being in a specified sector. The Bill currently envisages that the ISU will reach an initial decision on whether to clear a notified transaction or call it in for a detailed assessment within 30 working days of accepting the notification as complete. A number of parties who contributed to the public consultation were worried that the ISU would not be able to manage even the modest expected flow of transactions. If a 30-day period is granted and then an extension, which it is within its power to do, one can easily see this becoming the norm. Frankly, this will be far too long. As Ministers know, most things in life, but transactions in particular, have a momentum, and imposing a delay of 30-plus working days could lead to huge uncertainty and worry. People will be aware that the transaction is taking place, and they will be worried about their jobs in case the transaction does not happen. Employers will be nervous, because they will know that this is the point at which their employees are most vulnerable to being poached or headhunted. This long freeze on activity could be a disaster, to the point where business owners become reluctant to take in investment for this very reason, which would be a great shame.

To minimise the deterrent effect of the new regime on foreign investment into the UK, this amendment would introduce a fast-track procedure for non-problematic transactions, enabling the acquirer to request a review period of 10 working days, instead of 30, combined with reduced information requirements for the notification. The use of a fast-track initial review procedure would not prevent the Secretary of State referring a transaction for an in-depth assessment, if considered necessary. The timetable for such subsequent review would not be affected.

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In other words, a person is not treated as gaining control of an entity simply by exercising their rights as an administrator during the relevant insolvency proceedings. I hope that that allows my noble friend to put the audience’s minds at rest, if they raise this issue tomorrow night. I hope that noble Lords feel that I have adequately addressed their concerns and I ask that these amendments be withdrawn.

[Lord Leigh of Hurley (Con)]

I thank the Minister and all noble Lords who contributed to this group. We did not quite get unanimity, but we got close to it from those who spoke. The second-biggest accolade of my life has to be the noble Lord, Lord Clement-Jones, calling my arguments “cogent”, so I am grateful to him for that.

It is noticeable that the noble Lord, Lord Bilimoria—I know that he speaks on behalf of himself—spoke as president of the CBI. It is regarded by some as the advocate for large businesses, but he recognises that small businesses may struggle with this Bill. Although I take the point of my noble friend Lady Noakes that a very small business could be subject to a national security risk, I have to say to the Minister that there must be some level below which this Bill should not apply. He suggested that the Government start with £1 million as a stopgap, but I started with £10 million. What do you say?

I also take his points that revenue and gross asset definitions are difficult sometimes, but there are other ways—for example, just looking at the amount invested in a project or business. If it is less than £0.5 million, would we really think that there is a national security risk from someone taking a 15% stake? Perhaps we could have another look at that.

I thank the Minister again for his comments on the working days needed. I am sure that he is sincere in his view that this will be a deadline but we have seen circumstances where the deadline becomes the norm, and 30 working days with a possible extension of another 40 is a long time. The takeover panel gives rulings within an hour. I would have thought that the Secretary of State might allow himself to be stretched to having the option of allowing a reply within 10 working days in certain circumstances where it is apparent that an urgent matter needs to be resolved for all sorts of extremely important reasons, as we discussed earlier. It could be an opportunity for the Secretary of State to agree to a sticker of 10 working days, as it were, going on a particular case because of a threat to employment, a threat to a business’s viability or certain other criteria.

National Security and Investment Bill

Lord Leigh of Hurley Excerpts

Report stage
Thursday 15th April 2021 Lords Chamber

[The Deputy Speaker (Baroness Watkins of Tavistock) (CB)]

I have received a request to ask a short question for elucidation from the noble Lord, Lord Leigh of Hurley.

[Lord Leigh of Hurley (Con)]

I suppose I should say that modesty had forbidden me from putting my name down for this group. I wanted to have a point clarified and to thank the Government for listening to the Back-Benchers. I think it was fairly random that I took the 15% point: I cannot remember how it was allocated. I thank the Minister for listening to the many people who made representations.

In respect of the point from the noble Lord, Lord Lansley, about the fourth case—Clause 8(8)—we debated this and I think I raised the question at the time as to what influencing the policy of the entity means. To return the compliment to the Government, I agree with them in this instance because if we had Clause 8(8), I can see a lot of discussion and debate as to the meaning of enabling a person to materially influence “the policy”. We discussed the meaning of this at length. I return the compliment and agree with my noble friend the Minister.

[Lord Callanan (Con)]

I will just say that, as always, I agree with my noble friend.

--- Later in debate ---

[Lord Rooker (Lab)]

My Lords, I beg to move Amendment 35, which was tabled in the name of my noble friend Lord Grantchester.

As my noble friend Lady Hayter said in Committee, there is considerable concern in the higher education and research sectors about the potential impact of the Bill on research partnerships. Organisations have been crying out for clarity. Amendment 35, which I move on behalf of my noble friend—I thank the noble Lords, Lord Lansley and Lord Clement-Jones, for signing it—would require the Government to

“publish guidance for the higher education and research sector”,

including

“a clear explanation of asset transactions”

indicating how

“research, consultancy work, and collaborative research and development”

will be affected and how the provisions apply to

“strategic security partnerships and domestic partners.”

The amendment would also require the Government to

“consult the higher education and research sector”

in a meaningful way in advance of the guidance. The amendment is therefore about developing guidance and promoting good practice, in that it should be done in co-operation with the sector. I certainly hope that the Government will agree to that.

The Russell group has said that, without clear guidance, a significant proportion of universities’ routine engagement with British business could inadvertently be captured by the Bill. I am grateful to the Minister for his engagement on this issue; I understand that there has been an indication that the Government have listened. Without getting ahead of the Minister, when he comes to wind up, will he confirm when the guidance will be published by the Government and how higher education and research institutions will be involved in drafting it? Will a draft of the guidance be published beforehand, for example? How will higher education institutions be highlighted in the critical sectors? Will the guidance include hypothetical scenarios so that people can plan?

Universities want to help to make the Bill work, as we all do; the Bill has enormous support across Parliament. We can all be united in recognising the benefits of businesses working with research institutions, which we want not only to continue to support and allow to flourish but to continue increasing. I beg to move.

[Lord Leigh of Hurley (Con)]

My Lords, I thank the Minister, my noble friend Lord Callanan—he is not in his place—for his letter to us regarding guidance products. I was a bit confused by the word “products” but let us let that pass for the moment. The letter tells us about the expert panel, which is welcome; I gather that it has already sat, so that is a good start. I was slightly disappointed not to see any representatives from the insolvency profession on that panel because I think that, when they wake up to it, they will find that this Bill affects them much more than they realise. R3 had already told me that it would like to be on the panel, and no doubt the IPA, after its annual lecture the other week, will be keen to have representations on it. I also hope that the expert panel might include members of the public and practitioners who feel that they can contribute usefully.