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Lords amendments to the Small Business, Enterprise and Employment Bill


 
 

 

Lords amendments to the

Small Business, Enterprise and Employment Bill

[The page and line references are to HL Bill 57, the bill as first printed for the Lords.]

Clause 3

Page 3, line 44, at end insert “, and

(b)    

the company’s performance by reference to those practices and

policies”

Page 4, line 27, leave out “incurred” and insert “owed or paid”

Page 4, line 28, at end insert “whether in respect of interest or otherwise”

Clause 4

Page 5, line 37, after “to” insert “include an appropriate term in its standard terms

and conditions or to otherwise”

Clause 6

Page 8, line 24, after “(a)” insert “or (4)(b)”

Page 9, line 1, leave out from beginning to “5” in line 2 and insert “Regulations

under section 4 or”

Page 9, line 3, leave out subsection (11)

Clause 7

Page 9, line 29, leave out “, or” and insert “in the course of a business,

(b)    

Page 9, line 30, after “business” insert “, or

(c)    

provides, arranges or facilitates invoice discounting or factoring in

the course of a business,”

Page 9, line 43, leave out “negative” and insert “affirmative”

 
Bill 19055/4

 
 

2

 

Clause 10

Page 12, line 4, leave out “negative” and insert “affirmative”

Clause 13

Page 13, line 18, leave out from second “instrument,” to end of line 19 and insert

“if”

Page 13, line 22, after “to” insert “regulations under subsection (1A) and to”

Page 13, line 22, at end insert—

“(1A)    

The Treasury may by regulations prescribe circumstances in which

subsection (1) does not apply.

(1B)    

Regulations under subsection (1A) may in particular prescribe

circumstances by reference to—

(a)    

descriptions of instrument;

(b)    

arrangements under which presentment is made;

(c)    

descriptions of persons by or to whom presentment is made;

(d)    

descriptions of persons receiving payment or on whose

behalf payment is received.”

Page 14, line 12, leave out “is” and insert “appears to be”

Page 14, line 37, leave out second “banker” and insert “person”

Page 14, line 37, at end insert—

“89CA

Copies of instruments and evidence of payment

(1)    

The Treasury may by regulations make provision for—

(a)    

requiring a copy of an instrument paid as a result of

presentment under section 89A to be provided, on request,

to the creator of the instrument by the banker who paid the

instrument;

(b)    

a copy of an instrument provided in accordance with the

regulations to be evidence of receipt by a person identified

in accordance with the regulations of the sum payable by

the instrument.

(2)    

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

(a)    

prescribe the manner and form in which a copy is to be

provided;

(b)    

require the copy to be certified to be a true copy of the

electronic image provided to the banker making the

payment on presentment under section 89A;

(c)    

provide for the copy to be accompanied by prescribed

information;

(d)    

require any copy to be provided free of charge or permit

charges to be made for the provision of copies in prescribed

circumstances.

(3)    

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

is—

(a)    

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

(b)    

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


 
 

3

 
 

Page 14, line 43, leave out “subsection (1)” and insert “this section”

 

Page 15, line 47, at end insert—

 

“89E  

Supplementary”

 

Page 15, line 48, leave out “section” and insert “Part”

 

Page 16, line 7, leave out “section” and insert “Part”

 

Page 16, line 9, leave out from “containing” to “may” in line 10 and insert “—

 

(a)    

regulations under section 89A or 89CA, or

 

(b)    

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

 

Page 16, line 12, leave out “this section” and insert “section 89D”

 

Page 16, line 14, at end insert—

 

“(12)    

For the purposes of this Part, a banker collects payment of an

 

instrument on behalf of a customer by—

 

(a)    

receiving payment of the instrument for the customer, or

 

(b)    

receiving payment of the instrument for the banker (but not

 

as holder), having—

 

(i)    

credited the customer’s account with the amount of

 

the instrument, or

 

(ii)    

otherwise given value to the customer in respect of

 

the instrument.

 

(13)    

Section 89D(4) applies for the purposes of subsection (12) in its

 

application to section 89D.””

Clause 18

Page 19, line 24, at end insert—

“( )    

Regulations under this section must not specify a regulatory function of the

Commission for Equality and Human Rights.”

Clause 19

Page 20, line 1, after “must” insert “—

(a)    

Page 20, line 2, at end insert “, and

(b)    

lay any such guidance or revised guidance before Parliament.”

Clause 27

Page 26, line 16, leave out sub-paragraph (i)

Clause 35

Page 32, line 36, leave out from “instrument” to end of line 42 and insert “,

(d)    

may not be made unless—


 
 

4

 
 

(i)    

in the case of regulations made by the Secretary of State, a

 

draft of the statutory instrument containing the regulations

 

has been laid before Parliament and approved by a

 

resolution of each House of Parliament,

 

(ii)    

in the case of regulations made by the Welsh Ministers, a

 

draft of the statutory instrument containing the regulations

 

has been laid before, and approved by a resolution of, the

 

National Assembly for Wales.”

After Clause 35

Insert the following new Clause—

“Section 35: supplementary and consequential provision

(1)    

In section 41 of the Landlord and Tenant Act 1954 (trusts), after subsection

(2) insert—

“(3)    

Where a tenancy is held on trust, section 43ZA(2) has effect as if—

(a)    

paragraph (b) were omitted, and

(b)    

the condition in paragraph (c)(i) were a condition that the

terms of the tenancy require at least one individual who is a

trustee or a beneficiary under the trust to occupy the

dwelling-house as a home (whether or not as that

individual’s only or principal home).”

(2)    

A dwelling-house which is let under a home business tenancy is to be

regarded as being “let as a separate dwelling” for the purposes of—

(a)    

section 1 of the Rent Act 1977 (protected tenancies),

(b)    

section 79 of the Housing Act 1985 (secure tenancies),

(c)    

section 1 of the Housing Act 1988 (assured tenancies), and

(d)    

any other England and Wales enactment relating to protected,

secure or assured tenancies.

(3)    

Subsections (1) and (2) do not apply to the tenancies mentioned in section

35(5).

(4)    

Subsections (2) and (3) do not limit the circumstances in which a dwelling-

house which is let under a home business tenancy is to be regarded as “let

as a separate dwelling”.

(5)    

In this section—

“enactment” includes provision made—

(a)    

under an Act, or

(b)    

by or under a Measure or Act of the National Assembly for

Wales,

“England and Wales enactment” means any enactment so far as it

forms part of the law of England and Wales,

“home business tenancy” has the same meaning as in section 43ZA of

the Landlord and Tenant Act 1954.”

Clause 38

Page 35, line 21, leave out from first “authority”” to “, or” in line 23 and insert “has

the same meaning as in regulation 2 of the Public Contracts Regulations 2015 (S.I.


 
 

5

 
 

2015/102)”

 

Page 36, line 16, leave out “negative” and insert “affirmative”

Clause 39

Page 36, line 43, at end insert “or

( )    

the Public Contracts Regulations 2015 (S.I. 2015/102) apply,

disregarding for this purpose the operation of any financial

threshold provided for by those regulations;”

Clause 41

Page 37, line 37, leave out “all provisions of the Pubs Code are” and insert “the

Pubs Code is”

Page 37, line 38, after “with” insert “—

(a)    

Page 38, line 1, leave out from beginning to “the” in line 3 and insert—

“(b)    

Page 38, line 3, leave out “as a result of” and insert “than they would be if they were

not subject to”

Page 38, line 20, leave out “large”

Clause 42

Leave out Clause 42 and insert the following new Clause—

“      

Pubs Code: market rent only option

(1)    

The Pubs Code must require pub-owning businesses to offer their tied pub

tenants falling within section 67(1)(a) a market rent only option in specified

circumstances.

(2)    

A “market rent only option” means the option for the tied pub tenant—

(a)    

to occupy the tied pub under a tenancy or licence which is MRO-

compliant, and

(b)    

to pay in respect of that occupation—

(i)    

such rent as may be agreed between the pub-owning

business and the tied pub tenant in accordance with the

MRO procedure (see section (MRO procedure)), or

(ii)    

failing such agreement, the market rent.

(3)    

The Pubs Code may specify—

(a)    

circumstances in which a market rent only option must or may be

an option to occupy under a tenancy;

(b)    

circumstances in which a market rent only option must or may be

an option to occupy under a licence.

(4)    

A tenancy or licence is MRO-compliant if—

(a)    

taken together with any other contractual agreement entered into

by the tied pub tenant with the pub-owning business in connection

with the tenancy or licence it—


 
 

6

 
 

(i)    

contains such terms and conditions as may be required by

 

virtue of subsection (5)(a),

 

(ii)    

does not contain any product or service tie other than one in

 

respect of insurance in connection with the tied pub, and

 

(iii)    

does not contain any unreasonable terms or conditions, and

 

(b)    

it is not a tenancy at will.

 

(5)    

The Pubs Code may specify descriptions of terms and conditions—

 

(a)    

which are required to be contained in a tenancy or licence for it to

 

be MRO-compliant;

 

(b)    

which are to be regarded as reasonable or unreasonable for the

 

purposes of subsection (4).

 

(6)    

Provision made under subsection (1) must include provision requiring a

 

pub-owning business to offer a tied pub tenant a market rent only option—

 

(a)    

in connection with the renewal of any of the pub arrangements;

 

(b)    

in connection with a rent assessment or assessment of money

 

payable by the tenant in lieu of rent;

 

(c)    

in connection with a significant increase in the price at which any

 

product or service which is subject to a product or service tie is

 

supplied to the tied pub tenant where the increase was not

 

reasonably foreseeable—

 

(i)    

when the tenancy or licence was granted, or

 

(ii)    

if there has been an assessment of a kind mentioned in

 

paragraph (b), when the last assessment was concluded;

 

(d)    

after a trigger event has occurred.

 

(7)    

The Pubs Code may specify what “renewal” means in relation to a tenancy

 

or a licence for the purposes of subsection (6).

 

(8)    

In subsection (6) “pub arrangements”, in relation to a tied pub, means—

 

(a)    

the tenancy or licence under which the tied pub is occupied, and

 

(b)    

any other contractual agreement which contains an obligation by

 

virtue of which condition D in section 65 is met in relation to the

 

premises.

 

(9)    

In this Part a “trigger event”, in relation to a tied pub tenant, means an

 

event which—

 

(a)    

is beyond the control of the tied pub tenant,

 

(b)    

was not reasonably foreseeable as mentioned in subsection (6)(c),

 

(c)    

has a significant impact on the level of trade that could reasonably

 

be expected to be achieved at the tied pub, and

 

(d)    

is of a description specified in the Pubs Code.

 

(10)    

In this Part “market rent”, in relation to the occupation of particular

 

premises under a tenancy or licence which is MRO-compliant, means the

 

estimated rent which it would be reasonable to pay in respect of that

 

occupation on the following assumptions—

 

(a)    

that the tenancy or licence concerned is entered into —

 

(i)    

on the date on which the determination of the estimated rent

 

is made;

 

(ii)    

in an arm’s length transaction ;

 

(iii)    

after proper marketing; and


 
 

7

 
 

(iv)    

between parties each of whom has acted knowledgeably,

 

prudently and willingly; and

 

(b)    

that condition B in section 65 continues to be met.”

After Clause 42

Insert the following new Clause—

“MRO procedure

(1)    

The Pubs Code may—

(a)    

make provision about the procedure to be followed in connection

with an offer of a market rent only option (referred to in this Part as

“the MRO procedure”);

(b)    

confer functions on the Adjudicator in connection with that

procedure.

(2)    

Provision made under subsection (1) may, in particular—

(a)    

make provision for the tied pub tenant to give notice to the pub-

owning business that the tenant—

(i)    

considers that circumstances are such that the pub-owning

business is required to offer the tenant a market rent only

option, and

(ii)    

wishes to receive such an offer;

(b)    

specify a reasonable period (“the negotiation period”) during which

the pub-owning business and the tied pub tenant may seek to agree

the rent to be payable in respect of the tied pub tenant’s occupation

of the premises concerned under the proposed MRO-compliant

tenancy or licence;

(c)    

require the appointment of a person (referred to in this Part as an

“independent assessor”) to determine the market rent of the

premises concerned in a case where, at the end of the negotiation

period, the pub-owning business and the tied pub tenant have not

reached agreement as mentioned in paragraph (b);

(d)    

require that appointment to be made by the pub-owning business

and the tied pub tenant acting jointly or (where they cannot agree

on a person to appoint) by the Adjudicator;

(e)    

require the Adjudicator to set criteria which a person must satisfy

in order to be appointed as an independent assessor;

(f)    

require that the market rent must be determined by the

independent assessor within a specified reasonable period;

(g)    

specify that the determination of the market rent by the

independent assessor must be conducted in accordance with

provisions of documents specified in the Pubs Code;

(h)    

where any document is specified for the purposes of paragraph (g),

refer to the provisions of the document as amended from time to

time.

(3)    

The Pubs Code may make provision for—

(a)    

the tenancy or licence under which the tied pub is occupied, and

(b)    

any other contractual agreement entered into by the tied pub tenant

with the pub-owning business in connection with the tenancy or

licence,


 
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