I was disappointed by some of the Minister’s comments at the very end, because arguments were set up which we clearly have not made or would make, and nothing we have said during the entire course of these proceedings would suggest that we would make such points. We think a weakness is that we have not learned the lessons—from Victoria to Queensland to New South Wales, to the Australian commissioner. Mediating one case does not establish a rule; it will not do in Victoria, Queensland—no one has ever suggested such a thing and it was wrong to suggest that we would. Similarly, the court determines costs and the Small Business Commissioner can make a particular point. The Minister presented a whole series of arguments which are wrong.
I will focus on reputation and naming and shaming. I accept that the Government think there is some huge benefit to this, saying that we can deal with naming and shaming and reputations, and that it is some kind
of Aladdin’s lamp. However, frankly, people need a little more, and the noble Lord, Lord Hodgson, made exactly that point. You can string out an awful lot of the process by not being able to do it. Someone needs a lever so that they can say, “If you choose to frustrate a process and to refuse to do these things, there are other ways you can deal with this. Or, if you feel that you are being strung out, it will not work totally and wholly to your detriment”. That is quite important.
The noble Viscount, Lord Eccles, made the point that we should not make a detailed examination of particular businesses. Certainly, it would be extremely concerning if, when every business qualified, a series of checks about its health were made. However, these matters are relevant to how a conclusion is reached. There may well be restrictions when there is a payment dispute, the contract term is a problem and the larger business is willing to change it, but a broader change is required. You sometimes have to get into those issues where you are resolving a case. When a company is going to be named and shamed, its willingness to address that in the circumstances is the sort of issue that will certainly weigh on the Small Business Commissioner. If it found that there was a problem, it would reflect on whether the magic lever of naming and shaming should be applied if the company showed some sort of good faith and good will.
4.30 pm
I have one simple question for the Minister, who has declined to do too much that would give a degree of discretion. These amendments would give some sort of benefit. I would like her to see whether or not a large company could contract lawyers to design a contract that would allow them to carry on with exactly what they were doing, with long payment terms and terrible practices, and that would not come under the Small Business Commissioner. I would like to know that before Report. One of the large magic circle firms has indeed drafted a contract that would exclude any large business from coming under this provision.
The only provisions in this legislation that are outside core payment terms relate to new fees, altering the price of fees agreed, and replacing the payment of a fee that is provided for by a contract but not previously relied upon. They are new areas, and I understand the area of law that they are in. If you establish a contract that has provisions that allow for arrangements freely entered into, there is a huge imbalance and you can design a contract that would exclude large businesses from coming under this ambit. That is my problem with the narrow focus. That is my problem with relying on naming and shaming. That is my problem with relying on the good will of the people involved in this process. The Government themselves have provided the focus on this. They want to deal with the most egregious problems first, and this does not address them. They should at least give the Small Business Commissioner some powers.