The speech made by Seema Malhotra, the Labour MP for Feltham and Heston, in the House of Commons on 12 January 2022.
It is a pleasure to speak to new clause 1 and amendments 9 to 17, which stand in my name and in the name of my hon. Friend the Member for Brentford and Isleworth (Ruth Cadbury).
A process for resolving commercial rent arrears is very much needed, as dealing with the financial pressures brought on by covid is vital for landlords and tenants alike. Against that backdrop, Labour broadly welcomes the Bill, but we believe that the Government can and should do more on business support. That context is important because covid is not over. Business costs continue to rise, and they are also driven by rising fuel costs and inflation. Economic forecasts for the next three to five years project low growth, high inflation and high taxes. Managing financial pressures and supporting viable businesses to do so—that is the helping hand that we need in place as businesses navigate the uncertain road ahead and as some sectors recover faster than others.
To access the opportunities that we seek to ensure that the Bill provides, we need to be sure of the consistency, affordability and accessibility of arbitration and to ensure that the system operates effectively and fairly. On that basis, we have tabled new clause 1 and our other amendments in a positive spirit, to continue the dialogue that we had at the earlier stages of the Bill, because we support it and want it to work as effectively as possible.
On consistency, the Minister will appreciate that there will be retail and hospitality businesses with numerous landlords, and landlords with numerous tenants; businesses may therefore be party to more than one case under the new system. Predictability and consistency will be vital if those businesses are to have faith in the system, so our new clause 1 would require the Secretary of State to conduct a review of awards to assess whether clauses 15 and 16 have been interpreted consistently. The review would need to be conducted
“no later than three months following the day on which this Act is passed”,
and where the Secretary of State identifies material inconsistencies, he would need to publish or amend guidance to arbitrators as necessary. We believe that such a review would be welcomed by landlords, tenants and arbitrators and would ensure that the system is well understood.
On the accessibility and affordability of the new scheme, the definition of “business tenancy” in clause 2 has important consequences. Only tenancies in which the tenant is in occupation of the property fall within the Bill’s scope and can therefore access the arbitration scheme that it establishes. Let me give the House two examples of circumstances that could fall outside the Bill because of that definition.
First, Sir Paul Morgan, a specialist in property arbitration, has set out the case of a tenant who leaves a property unoccupied because of covid restrictions and does not now intend to reoccupy it when the restrictions end. As Sir Paul explains, the tenant may have a viable business but may not wish to reoccupy the particular premises for which the rent was due. Under the Bill as it stands, there would not be a business tenancy in such a case and the tenant would not be able to claim the benefit of the Bill in relation to that property, where the company was a tenant of that property during the period that is protected.
Secondly, there might be a situation where there is a head lease and a sub-lease on the property, for example where there is a franchising arrangement and the franchisee is the sub-tenant. In such a situation, the head lessee does not occupy the property and therefore could not benefit from the reliefs under the Bill, whereas the sub-tenant could.
Labour’s amendment 9 would fill those gaps, broadening the definition of “business tenancy” to cover arrangements in which the property is not occupied by the tenant. Unless the Minister can confirm that in the examples I have given it is intended that the leases would fall outside the new regime, I very much hope that the Government will recognise the gap and support our proposed changes.
We have tabled amendment 10, in relation to the period for reference to arbitration, in the same spirit of constructiveness. Clause 9 establishes a six-month period for a tenant or landlord to make a reference to arbitration, for which the clock starts on the day on which the Act is passed. We recognise and support the need to act quickly, but want to ensure that the full six months is available to tenants and landlords. The code of conduct suggests that the arbitration scheme will be operational on 25 March 2022, but what happens if the legislation passes before that date? Will that mean that parties have less than six months to make a reference? What if the legislation is not passed until a later date? Presumably, the current code of conduct would then need to be amended and existing protections extended. Amendment 10 reflects the suggestion by Bill Chandler of Hill Dickinson LLP that the date for referrals to open be fixed as 25 March 2022 irrespective of whether the legislation is passed. I would be grateful for the Minister’s feedback on that and on the importance of these questions in relation to improving accessibility to and the clarity of the new regime.
Let me turn to the question of cost. The scheme will be a success only if it is affordable. In Committee, the Minister acknowledged the importance of affordability and suggested that he was working with relevant bodies that may be appointed to agree cost schedules. Could the Minister update the House on those discussions? Clause 19 gives the Secretary of State the discretion to specify ceilings for arbitration fees in secondary legislation. Given the concerns of stakeholders and the financial pressures they are facing, the Secretary of State should be required to set a limit on arbitration fees, and that is the intention of amendment 16.
On county court judgments, the Minister will know that many commercial tenants were deeply frustrated that the temporary protections introduced to assist businesses struggling to pay their rent did not include protections against county court judgments and High Court judgments. UKHospitality and others have been calling for this protection for months. While it is welcome that the Government have finally listened to industry and to Labour, and improved the provisions that would stay any debt proceedings made after 10 November, choosing this cut-off date has had some perverse consequences.
As we heard in Committee, the result of this arbitrary date means that any landlord who started proceedings before 10 November is now arguably in a better position than those who held off and pursued negotiations with their tenant. Surely this cannot be the Minister’s intention. As the British Retail Consortium explained, the more aggressive the landlord, the better the position they are now in on county court and High Court judgments. That is why we have tabled amendment 17, which would remove this arbitrary cut-off date. As a result, a party could apply to court to stay any debt claim that is made by a landlord and relates to protected rent debt, pending a resolution whether by negotiation or arbitration. We see this as an issue of basic fairness. Labour does not believe that landlords or tenants should be punished for in effect doing the right thing and seeking to negotiate a settlement.
I turn now to Labour’s amendments designed to ensure that the new scheme operates effectively. First, on arbitrators and arbitration bodies, arbitral bodies and their members will be absolutely critical to the success of this arbitration scheme. The Government have taken a market-based approach to the running of the arbitration scheme, which will have a list of approved arbitral bodies, rather than a single provider. In Committee, we heard the concerns of stakeholders who wanted to understand what skills and expertise would be required of arbitrators. While some thought that financial and accounting qualifications were critical, others suggested that legal qualifications would be paramount given the complexity of the cases. I would welcome any update on the Department’s discussions with stakeholders and about the approval of suitable arbitral bodies.
As well as ensuring that arbitrators are suitably qualified, it is vital that there is sufficient capacity. The Government’s impact assessment assumes 8,200 cases going to arbitration in its central scenario. While the appointed arbitral bodies will maintain their own lists of arbitrators, in a system where the Secretary of State may appoint several bodies, it is the Secretary of State who ultimately must ensure that there is sufficient capacity. The intention of amendment 13 is to make that an explicit and ongoing duty on the Secretary of State to ensure that the arbitral bodies appointed have sufficient numbers of arbitrators to hear and report on all cases as quickly as possible. If the impact assessment’s estimate is too conservative, our amendment would require the Secretary of State to appoint additional arbitral bodies to work with those bodies already appointed to increase their list of approved arbitrators.
Stakeholders have also made it clear to me how vital it is that there is consistency across the new system in how different arbitrators interpret the legislation and any guidance under it. For example, an arbitrator must dismiss a reference to arbitration where it determines that the tenant’s business is not viable. As such, how arbitrators interpret viability is of central importance.
On the conduct of parties, it is welcome news from stakeholders that the vast majority of landlords and tenants have already reached agreement on their covid rent arrears. The British Retail Consortium estimated in December that 80% to 90% of its members had reached agreement. For the minority of businesses that are yet to reach agreement, the arbitration scheme provides a lifeline for an independent and binding arbitration. However, we believe that the Bill could be improved to further ensure a fairer arbitration process.
Clause 11 requires a reference to arbitration to include a formal proposal for resolving the dispute. The other party may then put forward their own counter-proposal. Both must be supported by supporting evidence. However, a requirement to submit supporting evidence is not the same as full disclosure on an open book basis. As the Property Litigation Association makes clear, parties are not required to provide any evidence which might be adverse to their proposal. This lack of an obligation to make full disclosure prevents the other party from making an informed counter-proposal and, arguably, ultimately the swift resolution of the dispute. That is why our amendment 14 revises clause 11 and requires a formal proposal to be accompanied by all evidence relevant to the proposal, whether helpful to that party or not.
We are pleased to see the Government table Government amendment 4. Although a 50-50 split is fair in most cases, it is right that the arbitrator has the power to change how the arbitration fees are split, particularly if one party has acted unreasonably. However, we believe that the Bill should go further than that as it is vital that tenants and landlords are incentivised to approach the arbitration process fairly and in the spirit of resolution. That is why we have tabled amendment 12, which would provide the arbitrator with the power to make an adverse cost award, where one party has caused the other to incur costs by acting unreasonably. As Sir Paul Morgan said in his written evidence, that would be nothing new. In the case of many tribunals where the general rule is that each party will bear its own costs, the tribunal is typically given such a power.
On swift resolution, the regime is intended to deliver swift resolutions for disputes, yet the Bill does not do everything possible to secure them. While clause 17 requires the arbitrator to make their award within 14 days in a case in which an oral hearing is held, where no oral hearing is held the arbitrator is required to make their award as soon as reasonably practicable. My understanding from debate in Committee is that the likelihood is that most arbitration hearings will not be oral hearings, but on the basis of paperwork. Can the Minister explain the logic here? Why is there no backstop requiring the arbitrator to make their award within a specific timeframe where there is no oral hearing, which, as I say, we understand is expected to be the majority of cases. Labour’s amendment 15 intends to ensure that awards are made within a specific timeframe irrespective of whether there is an oral hearing.
In conclusion, in the current climate viable firms risk going to the wall. We believe that the Government can and should do more. From business rates to energy costs, the Government have let down British businesses and the impacts are now a part of a cumulative rise of cost pressures on businesses. In the context of commercial rent debt, we welcome the relief this Bill offers to commercial tenants facing the risk of eviction, bankruptcy or debt enforcement, and we welcome the prospect of resolution on covid rent arrears offered to landlords and tenants that have not been able to reach agreement. That is why the Opposition have taken a constructive approach to scrutinising this legislation, and I hope that, in recognising the spirit in which our amendments have been tabled, the Minister will respond favourably on the points we have raised today.