Small Business, Enterprise and Employment Bill (HL Bill 91)

(4) 15Subsection (3) does not apply—

(a) if the act or omission is shown to have been in bad faith, or

(b) so as to prevent an award of damages in respect of the act or
omission on the grounds that it was unlawful as a result of
section 6(1) of the Human Rights Act 1998 (acts of public
20authorities incompatible with Convention rights).

(5) In this section—

• “section 16(2) activities” means activities concerned with any of
  the matters within section 16(2);

• “specified” means specified in an order or regulations under this
  25section.

(6) Orders and regulations under this section—

(a) are to be made by statutory instrument;

(b) may make different provision for different cases;

(c) may make transitional provision and savings.

(7) 30A statutory instrument containing an order or regulations under this
section is subject to annulment in pursuance of a resolution of either
House of Parliament, subject to subsection (8).

(8) An order or regulations under this section may be included in a
statutory instrument which may not be made unless a draft of the
35instrument is laid before, and approved by a resolution of, each House
of Parliament.”

(2) Omit section 18 of that Act (exemption from liability for bodies to whom grants
are paid).

(3) In section 66(2) of that Act (provisions extending to Northern Ireland) for “18”
40substitute “18A”.

Part 3 Public sector procurement

39 Regulations about procurement

(1) The Minister for the Cabinet Office or the Secretary of State may by regulations
5impose on a contracting authority duties in respect of the exercise of its
functions relating to procurement.

(2) For the purposes of this section “the exercise of functions relating to
procurement” includes the exercise of functions in preparation for entering
into contracts and in the management of contracts.

(3) 10Subject to subsection (4), “contracting authority” means a contracting authority
for the purposes of regulation 3 of the Public Contracts Regulations 2006 (S.I.
2006/5), or any regulation replacing that regulation, as from time to time
amended.

(4) But such an authority is not a contracting authority for the purposes of this
15section if its functions are wholly or mainly devolved functions, namely—

(a) Scottish devolved functions, that is to say functions the exercise of
which would be within devolved competence (within the meaning of
section 54 of the Scotland Act 1998);

(b) Northern Ireland devolved functions, that is to say functions which
20could be conferred by provision included in an Act of the Northern
Ireland Assembly made without the consent of the Secretary of State
(see sections 6 to 8 of the Northern Ireland Act 1998), or

(c) Welsh devolved functions, that is to say functions which could be
conferred by provision falling within the legislative competence of the
25National Assembly for Wales (as defined in section 108 of the
Government of Wales Act 2006).

(5) Regulations under this section may, in particular, impose—

(a) duties to exercise functions relating to procurement in an efficient and
timely manner;

(b) 30duties relating to the process by which contracts are entered into
(including timescales and the extent and manner of engagement with
potential parties to a contract);

(c) duties to make available without charge—

(i) information or documents;

(ii) 35any process required to be completed in order to bid for a
contract;

(d) duties relating to the acceptance of invoices by electronic means
(including a prohibition on the charging of fees for processing such
invoices, the publication of reports relating to the number of such
40invoices received or the electronic systems that must be used by a
contracting authority);

(e) duties to publish reports about compliance with the regulations.

(6) A person making regulations under this section must before making the
regulations undertake such consultation as the person considers appropriate.

(7) 45The Minister for the Cabinet Office or the Secretary of State may issue guidance
relating to regulations under this section.

(8) A contracting authority must have regard to any guidance for the time being
in force under this section.

(9) Guidance or revised guidance given under this section must be published.

(10) Regulations under this section are subject to negative resolution procedure.

40 5Investigation of procurement functions

(1) In this section “a Minister” means the Minister for the Cabinet Office or the
Secretary of State.

(2) A Minister may investigate the exercise by a contracting authority of relevant
functions relating to procurement.

(3) 10A Minister may by notice require a contracting authority to provide such
documents or other information, in such form or manner as the Minister may
direct, as the Minister may require for the purposes of an investigation under
this section.

(4) A contracting authority must—

(a) 15give a Minister such assistance with an investigation as is reasonable in
all the circumstances of the case;

(b) comply with a notice under subsection (3) before the end of the period
of 30 days beginning with the day on which the notice is given.

(5) In this section—

• 20“contracting authority” has the same meaning as in section 39, but does
  not include a Minister of the Crown or a government department;

• “a relevant function relating to procurement” is a function to which—

  (a)

  the Public Contracts Regulations 2006 (S.I. 2006/5S.I. 2006/5) apply,
  disregarding for this purpose the operation of regulation 8
  25(thresholds),

  (b)

  the Defence and Security Public Contracts Regulations 2011 (S.I.
  2011/1848) apply, disregarding for this purpose the operation
  of regulation 9 (thresholds), or

  (c)

  the Public Contracts (Scotland) Regulations 2012 (S.S.I. 2012/
  3088) apply, disregarding for this purpose the operation of
  regulation 8 (thresholds);

• a reference to regulations includes a reference to any regulations
  replacing those regulations, as from time to time amended.

(6) An investigation under this section may also include an investigation of—

(a) 35preparations for the exercise of a relevant function relating to
procurement, and

(b) the management of a contract entered into in the exercise of such a
function.

(7) But the exercise of a function—

(a) 40by—

(i) the governing body of a maintained school (see section 19 of the
of the Education Act 2002), or

(ii) a person who is the proprietor of an Academy (see section 17(4)
of the Academies Act 2010 and section 579(1) of the Education
45Act 1996), or

(b) which is regulated by the National Health Service (Procurement,
Patient Choice and Competition) (No. 2) Regulations 2013 (S.I. 2013/
500) (functions relating to the procurement of health care services for
the purposes of the NHS),

5may not be investigated under this section.

(8) A person conducting an investigation under this section may publish the
results of the investigation.

Part 4 The Pubs Code Adjudicator and the Pubs Code

10The Pubs Code Adjudicator

41 The Adjudicator

(1) A Pubs Code Adjudicator is established.

(2) Part 1 of Schedule 1 makes provision about the Adjudicator.

(3) Part 2 of that Schedule contains the Adjudicator’s powers to require
15information.

(4) Part 3 of that Schedule contains amendments consequential on the
establishment of the Adjudicator.

The Pubs Code

42 The Pubs Code

(1) 20The Secretary of State must, before the end of the period of one year beginning
with the day on which this section comes into force, make regulations about
practices and procedures to be followed by pub-owning businesses in their
dealings with their tied pub tenants.

(2) In this Part the regulations are referred to as “the Pubs Code”.

(3) 25The Secretary of State must seek to ensure that the Pubs Code is consistent
with—

(a) the principle of fair and lawful dealing by pub-owning businesses in
relation to their tied pub tenants;

(b) the principle that tied pub tenants should not be worse off as a result of
30any product or service tie.

(4) The Pubs Code may, in particular—

(a) contain requirements as to the provision of information by pub-owning
businesses to their tied pub tenants;

(b) require pub-owning businesses, in specified circumstances, to provide
35the following assessments in relation to their tied pub tenants—

(i) rent assessments, or

(ii) assessments of money payable by the tenant in lieu of rent;

(c) make provision about the information that such assessments must
contain and how they are to be calculated and presented;

(d) specify that such assessments must be conducted in accordance with
provisions of documents specified in the Pubs Code;

(e) where any document is specified for the purposes of paragraph (d),
refer to the provisions of the document as amended from time to time;

(f) 5impose other obligations on pub-owning businesses in relation to their
tied pub tenants.

(5) The Pubs Code may require pub-owning businesses to provide parallel rent
assessments in relation to their tied pub tenants falling within section 70(1)(b)
in specified circumstances, and in connection with such provision—

(a) 10may confer on the Adjudicator functions in relation to parallel rent
assessments,

(b) may require the payment of a fee by tied pub tenants to the Adjudicator
in connection with the exercise of those functions, and

(c) may make provision corresponding to that mentioned in subsection
15(4)(c), (d) and (e).

43 Pubs Code: market rent option

(1) The Pubs Code must require pub-owning businesses to offer their tied pub
tenants falling within section 70(1)(a) a market rent option in specified
circumstances.

(2) 20A “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) 25circumstances 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) 30taken 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) 35does 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) 40which 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
45business to offer a tied pub tenant a market rent option—

(a) in connection with the renewal of any of the pub arrangements;