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Enterprise Bill


10th April 2002

9 pm

Mr. Jonathan Djanogly (Huntingdon): I appreciate that others wish to speak, so I shall try to be as brief as possible.

The Bill's enormous scope leads me to support the claims of other Members that the time allocated for its consideration in Committee is simply not adequate. The Government spent two years consulting on it, so why can they afford to allocate only five weeks in Committee? That makes no sense.

The Government clearly regard the Bill as a gateway to improving enterprise culture in this country, rather than as a means to improving insolvency, consumer and competition laws. The Secretary of State has said:

"Our goal is to make the UK the best place in the world to do business. The Enterprise Bill is a major step towards achieving this."

We must therefore consider not simply the legalities in isolation, but whether the Bill will help enterprise. That is a much more complex question, which requires us to view the Bill's likely outcomes in the context of the Government's overall position on enterprise. I believe that the Bill is particularly likely to fail in that regard.

On insolvency provisions relating to individuals, I have serious reservations about the proposal to reduce the period of bankruptcy to a maximum of 12 months. Presumably, some bankrupts, if not most, will be released within the first three to four months of bankruptcy. Not only will unfair discrepancies in release times arise throughout the country, but given that more than half of all current bankruptcies involve consumer credit, rather than business debt, it seems highly unlikely that the provisions will make any difference to improving enterprise. Instead, as other hon. Members have said, they may enhance careless risk-taking and excess credit.

The Government have missed the point. What bankrupts need most is the ability to clear the slate after the set period, and to make a fresh start. Shortening the period of bankruptcy is not the key; what is needed is the ability to declare a bankruptcy spent after a set period. As matters stand, bankrupts will still not get a loan because their record will remain for the rest of their life. It is also worth noting that one of the great successes of the Insolvency Act 1986 was the institution of individual voluntary arrangements. Time and again, IVAs have saved people from bankruptcy and saved creditors from losing their money.

Years of repayment under IVAs will become increasingly unattractive. Instead, why should one not simply go bust for a few months? The maximum 12-month period will apply to those who have failed through no fault of their own. I am still not sure what those provisions-they have been mentioned by other hon. Members-mean. Will the person who makes an illegal but small preference or transaction at an undervalue be at fault, while the sole trader who squanders millions through weak cash controls will not? To my mind, the whole approach reeks of future court cases and human rights claims.

I also have serious concerns about companies. The Government seem to be arguing that the procedure will in some way prove unfair to unsecured creditors, but at the moment there is transparency. A quick search on the Companies House register can reveal whether a floating charge is in place. In terms of the credit that they give and the size of the order, companies need to be careful when entering into contracts with their customers' suppliers. That is simply common sense. For larger loans, deals will be done with the creditor who has a floating charge, in terms of the preference that will be received in the case of insolvency.

The main point relates to the cost of receivership compared with that of administration. Receivership is relatively cheap and quick, but administration is very court intensive, slow and expensive. If any hon. Member does not believe me, I suggest that they ask the Secretary of State for Transport, Local Government and the Regions about that. Most companies that go into administration are eventually wound up, but at vast expense and therefore greater loss to their creditors than if they had gone into receivership. That is why receivership is almost invariably used for smaller companies. The Bill will involve more administrations, thus more costs and therefore less money will go to creditors. The key to realising value to creditors in the vast majority of insolvencies where creditors' voluntary arrangements are not possible lies directly with the speed at which the company's underlying business can be sold. Every hour of delay will lower the value of the goodwill and therefore the return to creditors.

We currently have a major problem in this country in getting banks to lend to start-ups and smaller companies, and the Bill will make the situation worse. If banks lend to small companies without significant assets cover on which they can take a secured, fixed charge, they will do so at higher interest rates and the use of personal guarantees will certainly increase. I can only speculate on whether that has anything to do with the Government's proposals to reduce bankruptcy periods, but I am sure that those proposals will not help competition, productivity or enterprise; they will act against them.

I turn now to the competition provisions, many of which will improve the current situation, particularly the decisions to take referrals away from the Secretary of State and to create an independent OFT board, which, as other hon. Members have said, will represent a dramatic improvement. Likewise, the scrapping of the public interest test in favour of the substantial lessening of the competition test will be of great benefit, backed up by a fair de minimis set of provisions that keeps small businesses out of the loop altogether. That makes perfectly good sense.

However, problems have been identified for those companies affected, such as uncertainty and the additional costs involved in what the hon. Member for Twickenham (Dr. Cable) recognised would be a more judicial system. Concerns have also been expressed about the new enforcement powers and, more importantly, how they will be used. As the director general of the Confederation of British Industry put it:

"Nobody will benefit from forcing good firms to defend themselves unnecessarily when their European rivals shelter under less rigorous regimes."

Some may suggest that the attitude that companies should be fearful of the DTI, its investigations and heavy-handedness is mere bluff. I wanted to give two examples, but they will take up more time than I wish to use, given that other of my hon. Friends wish to speak. However, that is a real concern for companies, which are often subjected to Kafkaesque inquires by the DTI at great cost to those involved. That is all very well for listed companies with big pockets that can defend themselves, but the vast majority of companies in this country- 85 per cent.-are small with fewer than 10 employees, and they simply cannot afford the costs involved in defending themselves. That is why it will be necessary to ensure that we look out for smaller businesses. All that is part of the existing enterprise culture, so I hope that hon. Members will forgive me if I seem to be a little bit cautious, but they should please keep in mind those examples as I consider one or two other provisions.

First, the super-complaints process will have to be considered very carefully to avoid its becoming a way to initiate witch hunts, as other hon. Members have said. The CBI noted that the 90-day period was too long, but that could miss the real threat: if the DTI requires a full investigation to take place in that period, how long will that full investigation take? That point was made earlier by my hon. Friend the Member for Maldon and East Chelmsford (Mr. Whittingdale). Will the Government pay the company's costs if nothing comes of an investigation? What rights will the company have to question the outcome? Will there be provisions to ensure that its reputation is not damaged during the investigation? I can imagine a series of trials by tabloid springing up. In October 2001, the OFT agreed to a Consumers Association referral involving a super-complaint against the dentistry profession. The outcome was interesting. The OFT said that it would undertake a full investigation, which is expected to be completed by the end of the year. The question is this: should it not be required to complete the investigation after a certain period? Indeed, many questions arise, which I think should be raised in Committee.

That case is particularly interesting in one respect. The Consumers Association noted that one reason for the referral was the existence of

"huge disparities in tariffs between dentists".

That seems strange. While I understand the association's wish to identify high-charging dentists, I had always assumed that price variations were a sign of an open rather than a closed market. I shall not predict the outcome of the OFT investigation-we must see what emerges-but it would be helpful if we knew the results before the Committee stage, in order to analyse the way in which they would be implemented. Unfortunately, that will not be possible.

Similar concerns arise in relation to proposals for actions against individuals. While acknowledging that some other countries provide for criminal liability regarding cartel arrangements, businesses note that it is rarely enforced, and that the more active enforcement in this country will put UK companies at a competitive disadvantage in Europe.

Others have commented, relevantly, that criminalisation should be delayed until we have reviewed the Competition Act 1998. Concern has been expressed about how criminal liability-in terms of culpability-will work. One of my own main concerns is this: it simply cannot be presumed that criminal sanctions are an effective way of remedying the problem when juries in criminal courts may have to decide beyond reasonable doubt on complex questions of civil competition law when considering a cartel offence. Incidentally, the same applies to insider-trading legislation-as can be seen in section 151 of the Companies Act 1989, which the Government now want to get rid of, and in clause 246 of the Bill, which deals with the new civil bankruptcy restrictions orders that will protect the public from dishonest people.

The Government's White Paper states:

"The high evidential requirements of the current criminal sanctions mean that very few bankrupts have action taken against them."

The same point can be made about the disqualification of directors and, indeed, about criminal charges.

Getting the Bill right will involve balancing the interests of consumers and those of businesses, and ensuring that timely, due and fair process is achieved for all concerned. I do not believe that that balance currently exists in the Bill. Over-regulation will cause companies to leave the marketplace, which will mean less choice for consumers and higher prices.

That leads me to the question of whether the Bill will meet the Government's objective of strong competition, productivity and increased enterprise. According to the DTI website, the Bill's aim is, among other things, to make markets

"work better for both businesses and consumers".

That is an interesting phrase. I understand why Governments, particularly this Government, want to regulate markets, but how can they make them work? Will the Prime Minister send a memo to them?

The Government are entirely wrong to believe that they can make markets work, although they can regulate them. The only thing that will make markets work is Governments' staying away from them as much as possible. What makes markets work-what increases productivity, competition and enterprise in small and large businesses-is freeing labour markets, reducing regulation and lowering corporate taxes.



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