Small Business, Enterprise and Employment Bill

Amendments
to be moved
ON REPORT

[Supplementary to the Marshalled List]

Clause 42

LORD HODGSON OF ASTLEY ABBOTTS

 

Page 39, line 15, at end insert—

“( )   must require the parallel rent assessment to be calculated in the
same way as an MRO-compliant tenancy or licence, as defined in
section 43.”

Clause 43

LORD HODGSON OF ASTLEY ABBOTTS

 

Page 40, line 23, at end insert—

“( )     The Pubs Code may set out the circumstances in which subsections (6)(a)
and (b) are deferred for a specified period in circumstances where there is
a significant investment agreement with the tied pub.

( )     The Pubs Code will set out the process and definition of “significant
investment” and “specified period”, to be overseen by the Adjudicator.”

 

Page 40, line 27, at end insert—

“( )     The requirement to offer a market rent only option set out in subsection (1)
does not apply to franchise agreements, defined as agreements whereby no
rent is paid by the franchisee and their share of the profit is unaffected by
the price paid for tied products.”

After Clause 147

BARONESS NEVILLE-ROLFE

 

Insert the following new Clause—

“Protection for applicants for employment etc in the health service

(1)     The Employment Rights Act 1996 is amended as follows.

(2)     After section 49A insert—

“PART 5A

PROTECTION FOR APPLICANTS FOR EMPLOYMENT ETC IN THE HEALTH SERVICE

49B          Regulations prohibiting discrimination because of protected
disclosure

(1)     The Secretary of State may make regulations prohibiting an NHS
employer from discriminating against an applicant because it
appears to the NHS employer that the applicant has made a
protected disclosure.

(2)     An “applicant”, in relation to an NHS employer, means an
individual who applies to the NHS employer for—

(a)   a contract of employment,

(b)   a contract to do work personally, or

(c)   appointment to an office or post.

(3)     For the purposes of subsection (1), an NHS employer discriminates
against an applicant if the NHS employer refuses the applicant’s
application or in some other way treats the applicant less
favourably than it treats or would treat other applicants in relation
to the same contract, office or post.

(4)     Regulations under this section may, in particular—

(a)   make provision as to circumstances in which discrimination
by a worker or agent of an NHS employer is to be treated,
for the purposes of the regulations, as discrimination by the
NHS employer;

(b)   confer jurisdiction (including exclusive jurisdiction) on
employment tribunals or the Employment Appeal Tribunal;

(c)   make provision for or about the grant or enforcement of
specified remedies by a court or tribunal;

(d)   make provision for the making of awards of compensation
calculated in accordance with the regulations;

(e)   make different provision for different cases or
circumstances;

(f)   make incidental or consequential provision, including
incidental or consequential provision amending—

(i)   an Act of Parliament (including this Act),

(ii)   an Act of the Scottish Parliament,

(iii)   a Measure or Act of the National Assembly for
Wales, or

(iv)   an instrument made under an Act or Measure within
any of sub-paragraphs (i) to (iii).

(5)     Subsection (4)(f) does not affect the application of section 236(5) to
the power conferred by this section.

(6)     “NHS employer” means an NHS public body prescribed by
regulations under this section.

(7)     “NHS public body” means—

(a)   the National Health Service Commissioning Board;

(b)   a clinical commissioning group;

(c)   a Special Health Authority;

(d)   an NHS trust;

(e)   an NHS foundation trust;

(f)   the Care Quality Commission;

(g)   Health Education England;

(h)   the Health Research Authority;

(i)   the Health and Social Care Information Centre;

(j)   the National Institute for Health and Care Excellence;

(k)   Monitor;

(l)   a Local Health Board established under section 11 of the
National Health Service (Wales) Act 2006;

(m)   the Common Services Agency for the Scottish Health
Service;

(n)   Healthcare Improvement Scotland;

(o)   a Health Board constituted under section 2 of the National
Health Service (Scotland) Act 1978;

(p)   a Special Health Board constituted under that section.

(8)     The Secretary of State must consult the Welsh Ministers before
making regulations prescribing any of the following NHS public
bodies for the purposes of the definition of “NHS employer”—

(a)   a Special Health Authority established under section 22 of
the National Health Service (Wales) Act 2006;

(b)   an NHS trust established under section 18 of that Act;

(c)   a Local Health Board established under section 11 of that
Act.

(9)     The Secretary of State must consult the Scottish Ministers before
making regulations prescribing an NHS public body within any of
paragraphs (m) to (p) of subsection (7) for the purposes of the
definition of “NHS employer”.

(10)     For the purposes of subsection (4)(a)—

(a)   “worker” has the extended meaning given by section 43K,
and

(b)   a person is a worker of an NHS employer if the NHS
employer is an employer in relation to the person within the
extended meaning given by that section.”

(3)     In section 230(6) (interpretation of references to employees, workers etc) for
“and 47B(3)” substitute “, 47B(3) and 49B(10)”.

(4)     In section 236(3) (orders and regulations subject to affirmative procedure)
after “47C,” insert “49B,”.”

LORD WILLS

LORD PHILLIPS OF SUDBURY

 

Insert the following new Clause—

“Establishment of a National Whistleblowing Review Officer

The Secretary of State shall by order require persons engaged in regulatory
work to establish a National Whistleblowing Review Officer.”

 

Insert the following new Clause—

“The National Whistleblowing Review Officer: definitions

(1)     For the purposes of sections (The National Whistleblowing Review Officer:
Investigations
to (Disclosure of information to the National Whistleblowing
Review Officer
) a “whistleblowing concern” is where a disclosure of
information has been made to either a regulator or an employer which
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;

(2)     A “whistleblower” is—

(a)   a worker;

(b)   an employee;

(c)   a former worker;

(d)   a former employee;

(e)   a student;

(f)   a non-executive director;

(g)   a public appointee; or

(h)   a 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
(disclosure to prescribed person).”

 

Insert the following new Clause—

“The National Whistleblowing Review Officer: investigations

(1)     Subject to subsections (2) and (3), the National Whistleblowing Review
Officer may investigate alleged maladministration or a failure to
investigate by either an organisation or the regulator where a
whistleblowing concern has been made if—

(a)   a whistleblower makes a complaint to the National Whistleblowing
Review Officer;

(b)   representations are made to the National Whistleblowing Review
Officer by a legal or union representative on behalf of a
whistleblower; or

(c)   an organisation or regulator refers itself to the National
Whistleblowing Review Officer for investigation.

(2)     Unless the conditions set out in subsection (3) are satisfied, the National
Whistleblowing Review Officer 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 regulatory or law enforcement body is conducting an
investigation.

(3)     Where subsection (2) applies, the National Whistleblowing Review Officer
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—

“National Whistleblowing Review Officer: determination of complaints

(1)     The National Whistleblowing Review Officer must determine complaints
by reference to what is, in the opinion of the National Whistleblowing
Review Officer, fair and reasonable in all circumstances of the case.

(2)     The determination may contain one or more of the following—

(a)   a review of the handling of a whistleblowing concern to identify
failures in best practice, failure to address public interest issues or
the causing of injustice to a whistleblower;

(b)   advice to an employer, where failure to follow best practice has
been found, to take appropriate or proportionate action;

(c)   recommendations to the relevant system regulator or oversight
body that it make a direction requiring action, which may include
the following—

(i)   addressing any ongoing risks not resolved from the
whistleblowing concern;

(ii)   correction of any failure to investigate a whistleblowing
concern;

(iii)   correction of any non-compliance of good practice
identified;

(iv)   appropriate recognition of the contribution of the
whistleblower in raising a whistleblowing concern;

(v)   rejection of the complaint where the Ombudsman is of the
opinion, after consideration, that—

(a) the complaint is frivolous;

(b) there is no substance to it, or

(c) 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 whistleblower from pursuing a claim
under the Public Interest Disclosure Act 1998.

(4)     The National Whistleblowing Review Officer shall make available a report
of any actions taken under this section.”

 

Insert the following new Clause—

“National Whistleblowing Review Officer: other functions

(1)     The National Whistleblowing Review Officer shall offer guidance on how
to investigate whistleblowing concerns.

(2)     The National Whistleblowing Review Officer shall seek to improve public
awareness of, and public education about, whistleblowing.

(3)     The National Whistleblowing Review Officer shall report annually to
Parliament about its activities and publish a report on its website.”

 

Insert the following new Clause—

“Disclosure of information to the National Whistleblowing Review Officer

(1)     Nothing in this section shall detract from the duty upon relevant public
authorities to provide relevant information to the National Whistleblowing
Review Officer on request from the National Whistleblowing Review
Officer.

(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 National
Whistleblowing Review Officer if disclosure of that information to the
National Whistleblowing Review Officer—

(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 National Whistleblowing Review
Officer provides an assurance that information provided to the National
Whistleblowing Review Officer will be secured to the same data security
standard used by that authority, and the National Whistleblowing Review
Officer may provide such assurance and shall use its best endeavours to
maintain that standard.

(5)     If information is withheld from the National Whistleblowing Review
Officer under subsection (3), the National Whistleblowing Review Officer
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
National Whistleblowing Review Officer 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 The National Whistleblowing Review
Officer under subsection (6), the Information Commissioner shall consider
the application and issue a decision notice to the National Whistleblowing
Review Officer 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 National Whistleblowing Review
Officer 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)     The National Whistleblowing Review Officer and any office or officials
supporting the work of the National Whistleblowing Review Officer 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 (appeal
proceedings) 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 (interpretation).”

After Clause 155

BARONESS NEVILLE-ROLFE

 

Insert the following new Clause—

“Concessionary coal

(1)      This section applies to an entitlement to concessionary coal or payments in
lieu of concessionary coal—

(a)   arising in connection with employment by a company which on 1st
January 2014 was carrying on the business of deep coal-mining in
the United Kingdom, and

(b)   which is not being met otherwise than by virtue of this section.

(2)     The Secretary of State may, out of money provided by Parliament, make
such payments as the Secretary of State considers appropriate for the
purpose of securing that an entitlement to which this section applies is met.

(3)     Payments under this section may be made only with the consent of the
Treasury.

(4)     “Concessionary coal” means coal or other solid fuel supplied free of charge
or at reduced prices.”

Clause 162

BARONESS NEVILLE-ROLFE

 

Page 148, line 20, at end insert—

“(j)   in Part 11, section (Concessionary coal) (concessionary coal).”

Prepared 5th March 2015