Session 2014-15
Other Public Bills before Parliament
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Small Business, Enterprise and Employment Bill
marshalled
list of amendments
to be moved
in Grand Committee
The amendments have been marshalled in accordance with the Instruction of 15th December 2014, as follows—
| Clauses 144 to 151 Clauses 41 to 70 Clause 40 | Clauses 152 to 158 Schedule 1 |
[Amendments marked * are new or have been altered]
Clause 144
LORD WILLS
LORD LOW OF DALSTON
THE EARL OF LYTTON
LORD YOUNG OF NORWOOD GREEN
Page 124, line 5, at end insert—
“( ) In section 43B (disclosures qualifying for protection), after subsection (1)
insert—
“(1A) For the purposes of subsection (1), a “qualifying disclosure”
includes instances where a worker is thought to have made a
disclosure for information.””
Page 124, line 28, at end insert—
“( ) For section 43J substitute—
“43JA Contractual duties of confidentiality (No. 2)
No agreement made before, during or after employment between a
worker and an employer may preclude a worker from making a
protected disclosure.””
Page 124, line 28, at end insert—
“( ) In section 43K(1) (extension of meaning of “worker” etc. for Part IVA), after
paragraph (d) insert—
“( ) is or was provided with work experience pursuant to an
education, training course or programme that leads to
registration with a body mentioned in section 25(1) or (3) of
the National Health Service Reform and Health Care
Professions Act 2002.””
Page 124, line 28, at end insert—
“( ) In section 43K(1) (extension of meaning of “worker” etc. for Part IVA), after
paragraph (d) insert—
“( ) is or has been a job applicant and where the employer knew
or could be reasonably expected to know that the job
applicant had made a protected disclosure.””
Page 124, line 28, at end insert—
“( ) In section 43L (other interpretative provisions), at end insert—
“(4) A disclosure of information shall include allegations.””
Page 124, line 28, at end insert—
“( ) In section 203(3)(c) (restrictions on contracting out), at end insert “and the
impact of section 43JA on the agreement”.”
After Clause 144
LORD WILLS
LORD LOW OF DALSTON
THE EARL OF LYTTON
LORD YOUNG OF NORWOOD GREEN
Insert the following new Clause—
(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is
amended as follows.
(2) In section 203 (Codes of Practice issued by the Secretary of State), after
paragraph (1)(b) insert—
“(c) of promoting effective whistleblowing arrangements.””
LORD WILLS
Insert the following new Clause—
(1) The Secretary of State shall establish a Whistleblowing Ombudsman (“the
Ombudsman”).
(2) The Ombudsman must consist of—
(a) a board appointed by the Secretary of State,
(b) a chairman appointed by the board with the approval of the
Secretary of State, and
(c) at least 6 (but not more than 8) other persons appointed by the
board after consultation with the chairman.
(3) The Secretary of State shall pay the expenses of the Ombudsman and may
also pay such allowances as the Secretary of State determines.
(4) The Secretary of State is under a duty to ensure that there is an efficient and
effective system to support the carrying out of the business of the
Ombudsman.”
Insert the following new Clause—
(1) Subject to subsections (2) and (3), the Ombudsman may investigate alleged
maladministration or a failure to investigate by either an organisation or
the regulator where a disclosure of information has been made if—
(a) a whistleblower makes a complaint to the Ombudsman,
(b) the Ombudsman is invited to do so by the Secretary of State,
(c) representations are made to the Ombudsman by a legal or union
representative on behalf of a whistleblower, or
(d) an organisation or regulator refers itself to the Ombudsman for
investigation.
(2) Unless the conditions set out in subsection (3) are satisfied, the
Ombudsman shall not conduct an investigation in respect of action in
relation to which the whistleblower has or is pursuing—
(a) a right of appeal, reference or review to or before a tribunal
constituted by or under any enactment or by virtue of Her
Majesty’s prerogative,
(b) a remedy by way of proceedings in any court of law, or
(c) where a prescribed person, as defined in section (Whistleblowing
Ombudsman: definitions)(1), is conducting an investigation.
(3) Where subsection (2) applies, the Ombudsman shall conduct an
investigation where he is satisfied that—
(a) the procedure has been exhausted,
(b) in the particular circumstances it is not reasonable to expect that
procedure to be invoked or (as the case may be) exhausted, or
(c) the procedure or investigation has not been adequately pursued.”
Insert the following new Clause—
(1) The Ombudsman must determine complaints by reference to what is, in the
opinion of the Ombudsman, fair and reasonable in all circumstances of the
case.
(2) The determination may contain one or more of the following—
(a) a direction that the organisation or the prescribed person pays
compensation to the whistleblower of such an amount as the
Ombudsman sees fit in respect of loss which has been suffered by,
or any inconvenience or distress which has been caused to, the
whistleblower as a result of any matter connected to the complaint;
(b) a direction that the organisation should consider changes and
improvements to systems and policies in the area of concern raised
by the whistleblower;
(c) all forms of remedy including apology, explanation and remedial
action;
(d) a report to one of the following about the complaint—
(i) the Secretary of State,
(ii) Parliament, or
(iii) a prescribed person under section 43F of the Employment
Rights Act 1996;
(e) rejection of the complaint where the Ombudsman is of the opinion,
after consideration, that—
(i) the complaint is frivolous,
(ii) there is no substance to it, or
(iii) the organisation or any third party organisation has dealt
with the concern raised by the whistleblower or with the
complaint about the way the whistleblower has been
treated.
(3) Nothing in this scheme prevents the worker from pursuing a claim under
the Public Interest Disclosure Act 1998.”
Insert the following new Clause—
(1) The Secretary of State shall have the power to instruct the Ombudsman to
create a document that outlines best practice for whistleblowing
arrangements for organisations and prescribed persons, as defined under
section (Whistleblowing Ombudsman: definitions)(1).
(2) The Ombudsman shall seek to improve public awareness of and public
education on whistleblowing.
(3) The Ombudsman shall report annually to Parliament about its activities
and publish a report on its website.
(4) The Ombudsman shall put in place an awards programme for
whistleblowers who are judged to have made a positive contribution to the
public interest or society.”
Insert the following new Clause—
(1) Nothing in this section shall detract from the duty upon relevant public
authorities to provide relevant information to the Ombudsman on request
from the Ombudsman.
(2) In this Act—
“relevant information shall include all information which may
reasonably be considered to relate to the cause of the event, the
event itself, and actions taken after the event as a result;
“public authority” shall have the same meaning as in the Freedom of
Information Act 2000.
(3) A public authority may only decline to provide information to the
Ombudsman if disclosure of that information to the Ombudsman—
(a) is not possible for the purpose of safeguarding national security;
(b) would, or would be likely to, prejudice the defence of the realm or
the capability, effectiveness or security of the armed forces of the
Crown;
(c) is prohibited by or under any enactment, is incompatible with any
EU obligation, or would constitute or be punishable as a contempt
of court; or
(d) would, or would be likely to, prejudice a police investigation into
whether any person has failed to comply with the law.
(4) A public authority may request that the Ombudsman provides an
assurance that information provided to the Ombudsman will be secured to
the same data security standard used by that authority, and the
Ombudsman may provide such assurance and shall use its best
endeavours to maintain that standard.
(5) If information is withheld from the Ombudsman under subsection (3), the
Ombudsman must be informed of the subject of the matter being withheld
and the reason for that exemption.
(6) Upon receiving a notification that information is being withheld, the
Ombudsman may apply to the Information Commissioner for a decision
whether the public authority has assessed correctly that disclosure is not
possible under subsection (3).
(7) Upon receiving an application from an Ombudsman under subsection (6),
the Information Commissioner shall consider the application and issue a
decision notice to the Ombudsman and to the relevant public authority
stating either—
(a) that the public authority has correctly assessed that the information
should be withheld; or
(b) that all or some of the information should not be withheld, the steps
that the public authority must take to provide the information and
the period within which they must be taken.
(8) A decision notice issued by the Information Commissioner under
subsection (7) may be appealed by the Ombudsman or the relevant public
authority to the Tribunal.
(9) If on an appeal under subsection (8) the Tribunal considers—
(a) that the notice against which the appeal is brought is not in
accordance with the law, or
(b) to the extent that the notice involved an exercise of discretion by the
Commissioner, that he or she ought to have exercised his or her
discretion differently,
the Tribunal shall allow the appeal or substitute such other notice as could
have been served by the Commissioner, and in any other case the Tribunal
shall dismiss the appeal.
(10) On such an appeal, the Tribunal—
(a) may review any finding of fact on which the notice in question was
based; and
(b) shall notify the Lord Chancellor of its decision.
(11) An Ombudsman and any office or officials supporting the work of the
Ombudsman are not a public authority for the purpose of the Freedom of
Information Act 2000.
(12) The provisions of Schedule 6 to the Data Protection Act 1998 have effect (so
far as applicable) in relation to appeals under this section.
(13) In this section, “Tribunal” has the meaning given by section 84 of the
Freedom of Information Act 2000.”
Insert the following new Clause—
(1) A “whistleblower” is a—
(a) worker,
(b) employee,
(c) former worker,
(d) former employee,
(e) student,
(f) non-executive director,
(g) public appointment, or
(h) volunteer
who has made a disclosure of information to either an organisation or a
regulator as set out in section 43F of the Employment Rights Act 1996.
(2) A “disclosure of information” must tend to show one of the following—
(a) that a criminal offence has been committed, is being committed or
is likely to be committed;
(b) that a person has failed, is failing or is likely to fail to comply with
any legal obligation to which he is subject;
(c) that a miscarriage of justice has occurred, is occurring or is likely to
occur;
(d) that the health or safety of any individual has been, is being or is
likely to be endangered;
(e) that the environment has been, is being or is likely to be damaged;
(f) that gross waste or mismanagement of funds is being committed or
is likely to be committed;
(g) that serious misuse or abuse of authority is being committed or is
likely to be committed; or
(h) that information tending to show any matter falling within any one
of the preceding paragraphs has been, is being or is likely to be
deliberately concealed.”
Clause 145
LORD YOUNG OF NORWOOD GREEN
LORD STEVENSON OF BALMACARA
Page 125, line 43, leave out from beginning to end of line 4 on page 126
Page 129, line 18, at end insert—
“( ) Any payments made under this section by the employer must be
paid to the employee to the extent that the relevant sum has been
fully paid before any sums are payable under the penalty notice.”
Page 129, line 18, at end insert—
“( ) The Secretary of State may make regulations to allow a penalty
notice under this section to include a provision for the publication
of the name and other particulars of an employer who does not pay
the relevant sum as per the conditions of the notice.”
Page 130, line 2, after “penalty” insert “and relevant sum”
Page 130, line 11, after “penalty” insert “and relevant sum”
Page 130, line 19, after “penalty” insert “and relevant sum”
Clause 147
LORD YOUNG OF NORWOOD GREEN
LORD STEVENSON OF BALMACARA
Page 136, line 39, leave out “£20,000” and insert “£50,000”
Page 136, line 40, leave out “£20,000” and insert “£50,000”
Page 137, line 4, at end insert—
“( ) The Secretary of State shall provide an annual report to Parliament on the
effectiveness of—
(a) enforcement of the national minimum wage;
(b) the level of the financial penalty for underpayment, including but
not limited to its impact on compliance; and
(c) changes in provisions relating to the national minimum wage
improving other measures of pay in the labour market.”
Page 137, line 4, at end insert—
“( ) The Secretary of State may by regulations devolve the enforcement of the
national minimum wage to local authorities.”
After Clause 147
LORD YOUNG OF NORWOOD GREEN
LORD STEVENSON OF BALMACARA
Insert the following new Clause—
(1) Section 17 of the National Minimum Wage Act 1998 (non-compliance:
worker entitled to additional remuneration) is amended as follows.
(2) In subsection (2), at the end of paragraph (b) insert “including any relevant
remuneration the worker would have received in respect of holiday pay or
other leave pay”.”
BARONESS DONAGHY
Insert the following new Clause—
(1) The Secretary of State must publish a report on the use of internships
within the UK labour market.
(2) The report shall include details on, but is not limited to—
(a) the definition of an internship with reference to other forms of
voluntary work and work experience;
(b) the growth of internships in the labour market over the past five
years;
(c) the incidence of internships by industrial classification;
(d) the range of contractual arrangements that apply to internships;
(e) the average and median length of internships;
(f) the proportion of internships that are paid;
(g) the range, average and median pay for paid internships;
(h) the expenses and allowances made available to internships;
(i) the impact of internships on social mobility;
(j) the subsequent career choices made by interns;
(k) the relative progress in employment of those who have undertaken
internships.
(3) This report shall be published within one year of the commencement of this
Part and must be laid before both Houses of Parliament.”
Clause 148
LORD YOUNG OF NORWOOD GREEN
LORD STEVENSON OF BALMACARA
Page 137, line 27, at end insert—
“( ) The Secretary of State shall make regulations containing provisions
and measures enabling and facilitating the enforcement by workers
of the rights conferred under this section.
( ) Those regulations shall be laid before each House of Parliament in
draft before being made, subject to the affirmative resolution
procedure.”
Page 137, line 27, at end insert—
“(3A) An employer must offer a fixed-hours contract to a worker who has
worked regular hours over six months of continuous employment,
but the worker may reject the offer.
(3B) The Secretary of State shall by regulations make provision for the
determination of “regular hours” under subsection (3A).”
Page 137, line 32, leave out “may” and insert “must”
LORD YOUNG OF NORWOOD GREEN
LORD STEVENSON OF BALMACARA
BARONESS HOLLIS OF HEIGHAM
Page 137, line 36, at end insert—
“( ) Regulations made under subsection (1) shall include provisions—
(a) giving zero hours workers the right to be awarded financial
compensation of amounts, and in circumstances, to be
determined by the Secretary of State;
(b) giving employment tribunals powers to enforce their
judgments, including the award of any applicable
compensation as referred to in paragraph (a), or imposition
of any applicable penalty, in cases involving zero hours
workers; and
(c) imposing an obligation on an employer to offer a fixed
hours contract when a worker has worked regular hours for
a continuous period, or series of continuous periods, of
employment, to be determined by the Secretary of State.”
BARONESS HOLLIS OF HEIGHAM
Page 138, line 7, at end insert—
“( ) Such workers shall be eligible for inclusion within the national
insurance system where the relevant worker’s annual earnings
exceed £3,000 per year.”
LORD YOUNG OF NORWOOD GREEN
LORD STEVENSON OF BALMACARA
Page 138, line 28, at end insert—
“(f) extending provisions to prevent “effective exclusivity”
through conferring further rights on zero hours workers.”
Page 138, line 28, at end insert—
“( ) For the purposes of subsection (5)(c), the Secretary of State must
require an employer to pay compensation to workers when—
(a) the said worker is requested to work, turns up for work, and
is subsequently given less than a minimum number of hours
worked; or
(b) the said worker is requested to work, but the work is
cancelled at short notice.
( ) The Secretary of State shall by regulations define “compensation”,
“short notice” and “a minimum number” under this section.”
Page 139, line 2, at end insert—
“( ) The provisions in this section shall be enforceable by the
employment tribunal system.
( ) The Secretary of State shall make regulations that determine—
(a) the length of any qualifying period;
(b) the involvement of early conciliation at ACAS;
(c) the level of any fee payable by the worker;
(d) the imposition of penalties on the employer; and
(e) the remedies available to the workers.
( ) The Secretary of State shall make such regulations by affirmative
resolution procedure.”
Page 139, line 2, at end insert—
“27C Power to make further provision in respect of transparency of zero
hours workers’ terms and conditions
The Secretary of State may by regulations make provision to require
employers to provide basic information about terms and conditions
to all zero hours workers within two months of their start date.”
Clause 149
BARONESS NEVILLE-ROLFE
Page 139, line 5, leave out “The Treasury may by regulations” and insert
“Regulations may”
Page 139, line 9, leave out “Treasury think” and insert “person making the
regulations thinks”
Page 139, line 31, leave out subsection (6)
Clause 150
BARONESS NEVILLE-ROLFE
Page 140, line 1, leave out from second “a” to “or” in line 2 and insert “prescribed
public sector authority”
Page 140, line 3, leave out “public sector office so prescribed” and insert
“prescribed public sector office”
After Clause 150
BARONESS NEVILLE-ROLFE
Insert the following new Clause—
Ministers
(1) The power to make regulations under section 149(1) is exercisable—
(a) by the Scottish Ministers in relation to payments made by a relevant
Scottish authority;
(b) by the Treasury in relation to any other payments,
(but this subsection is subject to subsection (2)).
(2) Where the relevant Scottish authority is the Scottish Administration the
power to make regulations under section 149(1) is exercisable by the
Treasury (instead of the Scottish Ministers) in relation to payments made
to—
(a) the holders of offices in the Scottish Administration which are not
ministerial offices (read in accordance with section 126(8) of the
Scotland Act 1998), and
(b) the members of the staff of the Scottish Administration (read in
accordance with section 126(7)(b) of that Act).
(3) In this section “relevant Scottish authority” means an authority which
wholly or mainly exercises functions which would be within devolved
competence (within the meaning of section 54 of the Scotland Act 1998).
(4) Regulations under section 149(1)—
(a) if made by the Treasury, are subject to negative resolution
procedure;
(b) if made by the Scottish Ministers, are subject to the negative
procedure.”
Clause 151
BARONESS NEVILLE-ROLFE
Page 140, line 38, leave out “virtue of” and insert “regulations made by the
Treasury under”
Page 140, line 38, at end insert—
“(1A) The Scottish Ministers may waive the whole or any part of any repayment
required by regulations made by the Scottish Ministers under section 149(1).”
Page 140, line 42, after “regulations” insert “made by the Treasury”
Page 140, line 42, at end insert—
“( ) make provision for the power under subsection (1) to be exercisable
on behalf of the Secretary of State by a prescribed person,”
Page 141, line 2, at end insert—
“( ) The exit payments regulations made by the Scottish Ministers may—
(a) make provision for the power under subsection (1A) to be
exercisable on behalf of the Scottish Ministers by a prescribed
person,
(b) make provision for a waiver to be given only—
(i) with the consent of the Scottish Ministers, or
(ii) following compliance with any directions given by the
Scottish Ministers,
(where provision is made by virtue of paragraph (a)), and
(c) make provision as to the publication of information about any
waivers given.”
Page 141, line 3, after “regulations” insert “made by the Treasury”
Page 141, line 5, leave out paragraph (a)
Schedule 1
BARONESS NEVILLE-ROLFE
Page 148, line 13, leave out from beginning to “require” in line 15 and insert “The
Adjudicator may, for the purposes of exercising functions in relation to the offer of
a market rent option or the provision of parallel rent assessments,”
Clause 41
BARONESS NEVILLE-ROLFE
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) ”
LORD HODGSON OF ASTLEY ABBOTTS
LORD HOWARD OF RISING
Page 38, line 20, leave out subsection (6)
BARONESS NEVILLE-ROLFE
Page 38, line 20, leave out “large”
Page 38, line 21, after “tenants” insert “falling within section 67(1)(b)”
Clause 42
LORD BERKELEY
Page 38, line 46, leave out “500” and insert “100”
LORD HODGSON OF ASTLEY ABBOTTS
LORD HOWARD OF RISING
Page 38, line 46, leave out “or more” and insert “tied”
Page 38, line 46, leave out from “description);” to end of line 47
LORD HODGSON OF ASTLEY ABBOTTS
LORD HOWARD OF RISING
VISCOUNT RIDLEY
Page 39, line 1, leave out “may” and insert “shall”
Page 39, line 2, after “that” insert “only”
Page 39, line 3, leave out “are” and insert “can be”
LORD HODGSON OF ASTLEY ABBOTTS
Page 39, line 6, leave out “that”
LORD HODGSON OF ASTLEY ABBOTTS
LORD HOWARD OF RISING
VISCOUNT RIDLEY
Page 39, line 6, after “a” insert “new lease or tenancy with a”
Page 39, line 7, after “tenant” insert “only”
Page 39, line 8, after “of” insert “renewal of a”
Page 39, line 8, leave out “renewal”
Page 39, line 11, leave out “a significant” and insert “an unfair”
Page 39, line 14, leave out paragraphs (c) and (d)
Page 39, line 17, leave out “an event” and insert “a material change in
circumstances (as defined in paragraph 2(7) of Schedule 6 to the Local Government
Finance Act 1988)”
Page 39, line 19, at end insert—
“( ) The Pubs Code shall offer an exemption from the Market Rent Only Option
for a mutually agreed period in return for a significant investment by a
large pub-owning business in that tenant’s pub.”
LORD BORWICK
Page 39, line 20, leave out “21” and insert “90”
LORD HODGSON OF ASTLEY ABBOTTS
LORD HOWARD OF RISING
Page 39, line 23, after “agreeable” insert “new tenancy or lease with a”
Page 39, line 25, after “(7)” insert “, and if the large pub-owning business and the
tenant have not reached a mutually agreeable Market Rent Only settlement,”
Page 39, line 40, leave out “time” and insert “end”
Page 39, line 42, after “business” insert “under the new lease or tenancy”
Page 39, line 43, at end insert—
“( ) the tenant will comply with the provisions of the existing contract
until the new Market Rent Only contract comes into effect”
Page 39, line 50, at end insert “provided that the requirement to enter into a new
tenancy or lease if such tenants choose the Market Rent Only option shall not be
considered discrimination”
Page 40, line 3, leave out “a significant” and insert “an unfair”
BARONESS NEVILLE-ROLFE
Leave out Clause 42 and insert the following new Clause—
(1) The Pubs Code must require pub-owning businesses to offer their tied pub
tenants falling within section 67(1)(a) a market rent option in specified
circumstances.
(2) A “market rent 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 the market rent in respect of that occupation.
(3) The Pubs Code may specify—
(a) circumstances in which a market rent option must or may be an
option to occupy under a tenancy;
(b) circumstances in which a market rent 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—
(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) may, in particular, require a pub-
owning business to offer a tied pub tenant a market rent 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 particular premises at any time,
means the rent which the premises might reasonably be expected to fetch
at that time in the open market, on the assumption that condition B in
section 65 continues to be met.”
After Clause 42
BARONESS NEVILLE-ROLFE
Insert the following new Clause—
(1) The Pubs Code may—
(a) make provision about the procedure to be followed in connection
with an offer of a market rent option (referred to in this Part as “the
market rent option 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 option,
and
(ii) wishes to receive such an offer;
(b) 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 the pub-owning business and
the tied pub tenant cannot agree on that market rent;
(c) 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;
(d) require the Adjudicator to set criteria which a person must satisfy
in order to be appointed as an independent assessor;
(e) 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;
(f) where any document is specified for the purposes of paragraph (e),
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,
as they are in force when a notice is given by virtue of subsection (2)(a), to
continue to have effect until such time as the market rent option procedure
has come to an end (regardless of whether any of the agreements would or
could otherwise cease to have effect before that time).
(4) The Pubs Code may, for the purposes of subsection (3), specify the
circumstances in which the market rent option procedure is to be treated as
having come to an end.”
Insert the following new Clause—
(1) The Secretary of State may by regulations confer functions on the
Adjudicator in connection with the resolution of disputes relating to the
offer of a market rent option.
(2) The regulations may, in particular, make provision concerning the
resolution of disputes about whether—
(a) circumstances are such that a pub-owning business is required to
offer a tied pub tenant a market rent option;
(b) a proposed tenancy or licence is MRO-compliant;
(c) a determination of the market rent of a tenancy or licence made by
an independent assessor has been made in accordance with the
Pubs Code;
(d) any other requirement of the market rent option procedure has
been complied with.
(3) The regulations may, in particular, confer on the Adjudicator the function
of determining the market rent of a tenancy or licence in such
circumstances as may be specified in the regulations.
(4) Nothing in sections 45 to 49 applies in relation to provision made by virtue
of section (Pubs Code: market rent option) or (Market rent option: procedure) but
the regulations may include provision which is similar to that contained in
or made under those sections.”
Clause 43
LORD HODGSON OF ASTLEY ABBOTTS
LORD HOWARD OF RISING
VISCOUNT RIDLEY
Page 40, line 26, at end insert—
“( ) Any proposed changes to the Pubs Code must be subject to full
parliamentary scrutiny and consultation.”
BARONESS NEVILLE-ROLFE
Page 40, line 29, leave out “and (if applicable) (4)”
After Clause 43
LORD BERKELEY
Insert the following new Clause—
The market rent shall be determined on the basis of the likely turnover and
profit of the business of the pub, and shall not take into account any value
to the pub owner of a change of use of the pub.”
Clause 44
BARONESS NEVILLE-ROLFE
Page 41, line 11, after “with” insert “regulations under section (Market rent option:
disputes) or in accordance with”
Page 41, line 14, at end insert—
“( ) regulations under section (Market rent option: disputes),”
Clause 59
BARONESS NEVILLE-ROLFE
Page 47, line 17, leave out “under the Pubs Code in relation to” and insert “in
relation to the offer of a market rent option or”
Clause 60
LORD HODGSON OF ASTLEY ABBOTTS
VISCOUNT RIDLEY
Page 47, line 30, leave out “may require” and insert “must require every”
Clause 65
LORD HODGSON OF ASTLEY ABBOTTS
LORD HOWARD OF RISING
VISCOUNT RIDLEY
Page 49, line 34, at end insert—
“and part of this agreement contains special commercial and financial advantages.”
BARONESS NEVILLE-ROLFE
Page 49, line 34, at end insert—
“(5A) But condition D is not met if the contractual obligation is a stocking
requirement.
(5B) The contractual obligation is a stocking requirement if—
(a) it relates only to beer or cider (or both) produced by the landlord or
by a person who is a group undertaking in relation to the landlord,
(b) it does not require the tied pub tenant to procure the beer or cider
from any particular supplier, and
(c) it does not prevent the tied pub tenant from selling at the premises
beer or cider produced by a person not mentioned in paragraph (a).
(5C) In subsection (5B), “beer” and “cider” have the same meanings as in the
Alcoholic Liquor Duties Act 1979 (see section 1 of that Act).”
Clause 66
BARONESS NEVILLE-ROLFE
Page 49, line 39, leave out subsection (1) and insert—
“(1) A person is a “pub-owning business” for the purposes of this Part—
(a) in the period beginning with the day on which the Pubs Code
comes into force and ending with the following 31 March, if
immediately before the Pubs Code comes into force the person was
the landlord of 500 or more tied pubs;
(b) in any subsequent financial year, if for a period of at least 6 months
in the previous financial year the person was the landlord of 500 or
more tied pubs.
(1A) For the purposes of calculating the number of tied pubs of which a person
(“L”) is the landlord, any tied pub the landlord of which is a person who is
a group undertaking in relation to L is treated as a tied pub of which L is
the landlord.”
LORD BERKELEY
Page 49, line 39, leave out “500” and insert “100”
BARONESS NEVILLE-ROLFE
Page 50, line 1, leave out “But regulations may” and insert “The Secretary of State
may by regulations”
Page 50, line 2, leave out “such a landlord” and insert “a pub-owning business”
Page 50, line 5, leave out “the landlord” and insert “any other person”
Page 50, line 7, leave out subsections (3) to (5)
LORD BERKELEY
Page 50, line 10, leave out “500” and insert “100”
Page 50, line 13, leave out “500” and insert “100”
LORD HOWARD OF RISING
Page 50, line 18, leave out subsection (6)
BARONESS NEVILLE-ROLFE
Page 50, line 19, leave out “subsections (3) and (4)” and insert “subsection (1)(a) or
(b)”
Page 50, line 23, leave out “(5)” and insert “(1A)”
LORD HODGSON OF ASTLEY ABBOTTS
LORD HOWARD OF RISING
VISCOUNT RIDLEY
Page 50, line 23, at end insert—
“( ) Subsections (3) and (4) may only be amended after independent review and
full public consultation.”
Clause 67
LORD HODGSON OF ASTLEY ABBOTTS
LORD HOWARD OF RISING
Page 50, line 27, leave out paragraph (b) and insert—
“(b) who is party to negotiations which have reached the stage of a
provisional trading agreement for the prospective tenancy of a
premises which are, or expected to be, a tied pub ahead of any final
terms of the agreement being agreed.”
LORD HODGSON OF ASTLEY ABBOTTS
LORD HOWARD OF RISING
VISCOUNT RIDLEY
Page 50, leave out line 43
Page 50, line 43, at end insert—
“( ) The definition of tenancy in subsection (2) excludes temporary agreement
where the tenant has occupied the same pub premises for less than twelve
months.”
LORD HODGSON OF ASTLEY ABBOTTS
LORD HOWARD OF RISING
Page 50, line 43, at end insert—
“( ) The definition of “tenancy” in subsection (2) excludes franchise agreements
whereby no rent is paid by the franchisee and their share of the profit is
unaffected by the price paid for tied products.”
Clause 68
BARONESS NEVILLE-ROLFE
Page 51, line 22, leave out from “of” to end of line 23 and insert “determining under
section 66 whether a person is a pub-owning business”
LORD BERKELEY
Lord Berkeley gives notice of his intention to oppose the Question that Clause 68 stand part
of the Bill.
Clause 69
BARONESS NEVILLE-ROLFE
Page 51, line 33, at end insert—
““independent assessor” has the meaning given by section (Market
rent option: procedure);
“market rent” and “market rent option” have the meanings given by
section (Pubs Code: market rent option);
“market rent option procedure” has the meaning given by section
(Market rent option: procedure);
“MRO-compliant”, in relation to a tenancy or licence, has the meaning
given by section (Pubs Code: market rent option);”
Page 51, line 35, at end insert—
““product or service tie” means a product tie or a service tie;”
Page 51, line 36, leave out “or service”
Page 51, line 36, after “obligation” insert “, other than a stocking requirement,”
Page 51, line 43, leave out paragraph (b)
Page 51, line 45, at end insert—
“service tie” means any contractual obligation of a tied pub tenant to
receive a service supplied by—
(a) the landlord of the tied pub or a person who is a group
undertaking in relation to the landlord, or
(b) a person nominated by the landlord or by a person who is a
group undertaking in relation to the landlord;
“stocking requirement” has the meaning given by section 65.”
Page 51, line 45, at end insert—
“( ) In this Part, references to “rent”, in relation to a licence to occupy, are to be
read as references to the fee payable in respect of the licence.”
Page 52, line 1, leave out subsection (2)
Clause 70
LORD HODGSON OF ASTLEY ABBOTTS
Page 52, line 12, leave out “negative” and insert “affirmative”
Clause 152
BARONESS NEVILLE-ROLFE
Page 141, line 24, leave out “section 35 as it applies” and insert “sections 35 and
(Section 35: supplementary and consequential provision) as they apply”
Page 141, line 40, after “35” insert “or (Section 35: supplementary and consequential
provision)”
After Clause 152
BARONESS NEVILLE-ROLFE
Insert the following new Clause—
(1) Subsection (2) applies to any provision of this Act that provides that a
person guilty of an offence triable either way is liable on summary
conviction in England and Wales to a fine.
(2) In relation to an offence committed before section 85(1) of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 comes into force, the
reference to a fine is to be read as a reference to a fine not exceeding the
statutory maximum.
(3) After section 1131 of the Companies Act 2006 insert—
“1131A Fines on summary conviction in England and Wales: transitory
provision
(1) In relation to an offence committed before section 85(1) of the Legal
Aid, Sentencing and Punishment of Offenders Act 2012 comes into
force, in the provisions mentioned in subsection (2), “a fine” is to be
read as “a fine not exceeding level 5 on the standard scale”.
(2) The provisions are—
(a) section 156A(7)(a);
(b) section 167D(5)(a);
(c) section 279D(5)(a);
(d) section 853L(2)(a).
(3) In relation to an offence committed before section 85(1) of the Legal
Aid, Sentencing and Punishment of Offenders Act 2012 comes into
force, in the provisions mentioned in subsection (4), “a fine” is to be
read as “a fine not exceeding the statutory maximum”.
(4) The provisions are—
(a) section 790F(2)(b)(i);
(b) section 790R(3)(b)(i);
(c) section 1028A(11)(b)(i);
(d) section 1032A(12)(b)(i);
(e) paragraphs 7(1)(b)(i), 13(4)(b)(i) and 14(3)(b)(i) of Schedule
1B.””
Clause 153
BARONESS NEVILLE-ROLFE
Page 142, line 23, leave out “section 35 as it applies” and insert “sections 35 and
(Section 35: supplementary and consequential provision) as they apply”
Page 142, line 26, after “35” insert “or (Section 35: supplementary and consequential
provision)”
Clause 154
BARONESS NEVILLE-ROLFE
Page 142, line 29, after “1” insert “or 149(1)”
Clause 156
BARONESS NEVILLE-ROLFE
Page 143, line 18, leave out “section” and insert “sections 110 and”
Clause 157
BARONESS NEVILLE-ROLFE
Page 144, line 9, leave out “section 41” and insert “sections 41 to (Market rent option:
procedure)”
Page 144, line 29, at end insert—
“( ) Section 13 (electronic paying in of cheques etc) comes into force—
(a) on the day this Act is passsed, for the purpose of enabling the
making of regulations under section 89D of the Bills of Exchange
Act 1882 (as inserted by section 13);
(b) on 31 July 2016, for all other purposes.”
Page 144, line 30, leave out “Section 35 as it applies in Wales comes” and insert
“Sections 35 and (Section 35: supplementary and consequential provision) as they apply
in Wales come”