§ Order for Second Reading read.
3.36 pm§ The Parliamentary Under-Secretary of State for Corporate Affairs (Mr. Neil Hamilton)I beg to move, That the Bill be now read a Second time.
The Bill is short but it is technical. Although I shall need to be precise in some areas, I hope that I shall be able to address the broad issues without becoming enmeshed in too much detail.
First, I should outline the circumstances in which we have found it necessary to introduce this Bill. The Insolvency Act 1986 contains two measures, administration and administrative receivership—the latter is known in Scotland simply as receivership—which are used frequently to rescue financially troubled companies or to save viable parts of their businesses. For the sake of convenience, I shall refer simply to receivers and receivership, but the reference will be to administrative receiver and administrative receivership in England, Wales and Northern Ireland, and receiver and receivership in Scotland.
Putting together a rescue package and seeing it through to a conclusion often takes several months—if not longer. During this time the business has to be kept going and the administrator or receiver will need to keep on at least part of the work force. The legislation, however, gives him a period of grace of only 14 days before he has to decide whether to adopt their contracts of employment. In the case of administration, the effect of adoption is that in practice the obligations under the contracts of employment become expenses of the proceedings. In an administrative receivership, however, in addition to the company's continuing liability the receiver also becomes personally liable under the contract.
Fourteen days is not a long time. It will rarely be long enough to effect a rescue or conclude a sale. Administrators and administrative receivers were clearly concerned about the implications of adopting contracts of employment right from the time the legislation came into force at the end of 1986. As early as February 1987 the receivers, in the case of Specialised Mouldings, obtained directions from the High Court that it was possible to avoid adopting such contracts but to continue to employ the employees.
From this there developed a practice whereby receivers would send letters to employees whom they wished to retain saying in essence that they were not adopting their contracts and that they accepted no personal liability, but that they would continue to pay wages, salaries and pension contributions as before. In due course this seems to have become standard practice in cases of administration too, although the legislation does not provide for an administrator to have personal liability.
On this basis, matters proceeded—apparently satisfactorily—for more than six years. However, in July 1993 a decision of the High Court in the case of Paramount Airways Ltd (No. 3) cast doubt on the effectiveness of the disclaimer—if I may call it that—which by then was being routinely used. There was an appeal to the Court of Appeal 24 in February this year which upheld the decision of the High Court. Moreover, although it was an administration case, the judgment also raised serious doubts about the effectiveness of the disclaimer in receivership cases. Since then, the general perception has been that it is no longer safe to place any reliance on the use of disclaimers, with the result that if employees are not dismissed within the 14-day grace period their contracts will be held to have been impliedly adopted.
The consequence of the Paramount judgment is that the contractual rights arising from the termination by administrators of contracts of employment that they had adopted, even unwittingly, constitute a priority charge on the company's assets. Insolvency practitioners concluded that the effect of that might be so to encumber the company that there would be no substance left upon which to base an effective rescue package. Understandably, they were even more alarmed at the prospect, in receiverships, of incurring substantial personal liability. The result was likely to be that they would resort to wholesale dismissal of employees unless the business could be sold within 14 days. That would not have been good for business, employment or the economy.
Right hon. and hon Members will recall that on 14 March my right hon. Friend the President of the Board of Trade made a statement to the House on the issue. He said that he intended to bring forward legislation at the earliest opportunity which would enable an administrator or a receiver to adopt a contract of employment with more restricted effects than at present. That commitment is now honoured in the Bill. The aim is to discourage administrators and receivers from dismissing employees simply because of the fear of the extensive liabilities which may be incurred—in the case of receivers, extensive personal liabilities—as a result of the adoption of the contracts. Under the proposals, only qualifying liabilities, which I shall shortly describe, would be incurred.
In the case of administration, that aim would be achieved by the amendments to section 19 of the Insolvency Act 1986 contained in clause 1 of the Bill. Those amendments provide that only qualifying liabilities would in future be covered by the statutory priority charge over a company's assets. Qualifying liabilities are defined broadly as wages or salary or contributions to an occupational pension scheme in respect of services rendered after the adoption of the contract. That would also cover rights to holiday pay and sickness pay arising after adoption.
In the case of administrative receiverships, the aim is achieved by amendments to section 44 of the Act, which are contained in clause 2 of the Bill. Those amendments also restrict the receiver's personal liability—and consequently his statutory right of indemnity from the company's assets—to only qualifying liabilities as I have just described them.
Clause 3 of the Bill makes provision for amendment of section 57 of the Act. It introduces the limited personal liability of the new scheme into the Scottish system of receivership. Clause 4 and schedule 1 provide for the Bill's effects to be brought about in Northern Ireland by amendment of the relevant provisions of the Insolvency (Northern Ireland) Order 1989.
There will be, of course, entirely understandable concern that the proposed amendments should not disadvantage employees whose contract is terminated by an administrator or receiver. They do not.
25 Liabilities, other than qualifying liabilities, arising from a contract of employment will remain, but they will be treated as an unsecured claim against the company. Moreover, the proposals will not affect the employee's position under employment law.
This measure is not intended to overturn the decision in the Paramount Airways case, which may go to appeal. It would apply only to contracts that are adopted on or after 15 March 1994. Any contract adopted before then will not be affected by the changes.
It is hoped, of course, that the proposals will be adopted and that as a result it will prove possible more often to return companies to viability or to sell their businesses as going concerns. In that way, employees will keep their jobs. They would not be affected by the proposals because their contracts of employment would not have been terminated.
That brings me back to the concerns that have caused us to act so quickly to resolve the difficulty. Those concerns are recognised on both sides of the House. In that context, I should like to thank the Opposition for their constructive approach in facilitating the measure. It cannot be in anyone's interests for administrators or receivers to feel constrained to close businesses and dismiss employees because they cannot risk an otherwise viable rescue plan being subverted by the burden of rights that arise when they find it necessary to terminate a contract of employment that they have adopted, or because they would be personally liable for those costs.
§ Mr. Dennis Skinner (Bolsover)The Bill is very narrow and I suppose that it will remain so. As I am suspicious about what the Government might do, however, and as I have read in the newspapers that many Tory Members of Parliament are heading for bankruptcy, can the Minister assure us that this narrow Bill will not be amended here or in another place to ensure that they are rescued from bankruptcy? He says that he does not believe in intervening in the market, so will he give us an assurance that, in the life of this Parliament, no Tory Members who have got up to their necks in debt with Lloyd's will be rescued by the Government, which means by the taxpayer?
§ Mr. HamiltonLike the hon. Gentleman, I wear my badge of poverty with some pride. I am not one of those people who have ever been a part of Lloyd's or a party to any other investment in which I stood to lose any substantial sum. I cannot foretell the circumstances in which the House or another place might amend the Bill. As a general rule, Ministers are not too keen on their legislation being amended. I do not propose to amend the Bill and my proposals are before the House. I think that I can give the hon. Gentleman the assurance that he requests, but it is not for me to foretell the future.
It cannot be in anyone's interests for businesses that might otherwise be saved to be closed down as a result of the adventitious circumstances that gave rise to the need for us to legislate in this form today.
The statement by my right hon. Friend the President of the Board of Trade on 14 March was welcomed on both sides of the House. The Bill will give effect to his proposals, and on that basis I commend it to right hon. and hon. Members.
§ Mr. Stuart Bell (Middlesbrough)I am grateful to the Minister for his short and technical introduction to our Second Reading debate on what he describes as the broad issues. I am glad that my hon. Friend the Member for Bolsover (Mr. Skinner) brought to the attention of the House one of those issues by mentioning one of the great difficulties that may lie ahead for the Government. They may find that they are forced into different streams and torrents, and that they have to distort the meaning of the Bill.
When the President of the Board of Trade, who is not here today, made his statement last week, he reminded me of the opening of the first motorway in Lancashire. Harold Macmillan, who was then Prime Minister, opened it, but two weeks later it was closed for repairs. At the time, Harold Wilson said that it was a pity that the Prime Minister had been invited to the opening but not to the closure.
We cannot lay the blame for the Insolvency Act 1986 at the door of the President of the Board of Trade. He was on a short trek through the wilderness at that time and was writing such lively and entertaining books as, "Where There's A Will" and showing us what a real interventionist in the economy can do. However, the right hon. Gentleman had to tell the House about the difficulties that resulted from the 1986 Act.
The Under-Secretary of State took us a little way through the variety of legal circuits that have had to be followed. The Bill came about because of a court ruling in the case of Nicoll v. Cutts, followed by that in the case of Specialised Mouldings Ltd. on 13 February 1987. The latter judgment was never properly reported, which is astonishing. There was no report or transcript of the judgment, no note of the reasons why Mr. Justice Harman reached his conclusions and no details of the facts of the case were given. No helpful authority was given for the judgment; and that is not merely my view, but that of the Court of Appeal.
Since 1987, the Government and practitioners of insolvency law have known that they had little authority for allowing receivers to escape their liabilities by sending a letter saying that they had not adopted the contracts of employment. Everyone knew that that was bad and unsafe law, yet the Government did nothing about it. That says a lot about the Executive; it also says something about our legislature.
The legislation had its Committee stage, and experts served on the Committee. Time and again, Tories with expertise and knowledge are metaphorically bound and gagged in Committee: they are not allowed to say a single word that might delay the proceedings. Notwithstanding all that was said by insolvency practitioners at the time, the Bill reached the statute book—with a hidden timebomb ticking away under every insolvency practitioner in the country.
On 14 March, on the Floor of the House, the President of the Board of Trade promised this legislation. As my hon. Friend the Member for Workington (Mr. Campbell-Savours) has said, Opposition Members are concerned about the public interest, and will facilitate the Bill's passage; nevertheless, we are anxious about certain omissions. One such omission—with which we may deal 27 later, in Committee—relates to law-of-property receivers who are sent in, on behalf of banks and building societies, to recover big single assets such as hotels and office blocks.
The Minister and his Department may well have accepted that hotels and office blocks do not necessarily employ staff, and that contracts of employment will not be involved in such cases; if they are not involved, they should not be included in the legislation. As has been said, however, when staff are involved they may need to remain involved. That suggests that an appropriate amendment should be tabled to cover the provisions of section 37 of the 1986 Act.
I listened with interest to the Minister's clarification of the Government's position on retrospection. He said that the Bill would not be retrospective but would take effect from 15 March. In 1964, we had a Labour Government, whose first act was to pass retrospective legislation in respect of Burmah Oil, to reverse a decision of the Law Lords in the national interest. I believe that the President of the Board of Trade is somewhat exercised by the question whether to start from the position of 14 or 15 March, or whether to go back to 1987: he said last week that there was a question of retrospection, and I believe that he was thinking very deeply about that.
The Bill raises a serious issue. The Minister seemed to be saying that he did not wish to overrule the decision of the Court of Appeal. However, he is doing what should have been done years ago—rectifying an error that turned up in the Insolvency Act 1986. I fear—as do insolvency practitioners—that a number of law suits may result from the legislation. My hon. Friend the Member for Bolsover mentioned Lloyd's of London; but professional indemnity insurers, who may have to pick up the tab, must be worried about the possibility of consequential claims on the insurance market. The hon. Member for Tynemouth (Mr. Trotter), with his knowledge of insolvency matters, may wish to help us in that regard.
Perhaps the Minister will give us a fuller explanation in Committee, but I am not entirely sure that it is wise to make the Bill retrospective only to 15 March, rather than taking the retrospection back to 1987. The former date may create uncertainty among lawyers, insolvency practitioners and those who have lost their jobs in the past few years, and who may suddenly feel that they have a claim that can be honoured.
Let me deal with some of the points made last week. The Minister has rightly said that this is a narrow, technical Bill. However, my hon. Friends the Members for Birmingham, Hodge Hill (Mr. Davis) and for Livingston (Mr. Cook) are still concerned about a matter that they raised then—the £205 redundancy money. That is not a huge sum in this day and age; it is certainly less than the average industrial wage. We feel that statutory redundancy money should be increased to bring it into line with that average.
As we are amending the 1986 Act, we should ask how that Act came to be such a disappointment. Was it overwhelmed by the number of insolvencies and bankruptcies that occurred in a recession that lasted three years? Was it overwhelmed by the number of firms that went into administration and receivership, or was the Bill simply flawed? Do those flaws still confront the House and insolvency practitioners?
28 We are pleased that the number of insolvencies is reducing, from the high of 5,734 appointments in administration and receivership in 1991 and 3,266 in 1992, but the target of 2,000 in 1994 hardly gives the impression that the economy is thriving.
More than 4,000 firms were wound up and more than 6,000 individuals were declared bankrupt in 1992–93 as a result of actions brought by Government Departments. Those figures came from the Under-Secretary of State for Corporate Affairs. Many of those actions were taken by the Inland Revenue and Customs and Excise. I fully accept that they must both look after taxpayers' interests, but these may be equally served by keeping men and women in work and businesses viable and solvent.
Customs and Excise and Inland Revenue specialised units involved in debt recovery take into account a variety of factors, such as the company's tax history, the need to ensure future compliance and expectations if a business continues to trade. Perhaps we will learn later today, or after publication of the Government's consultation paper on the future of insolvency law, whether the United Kingdom will go to the lengths of Australia, Denmark and Canada in reducing the preferential status of the taxman.
§ Mr. Derek Enright (Hemsworth)I share the suspicions of my hon. Friend the Member for Bolsover (Mr. Skinner). Has my hon. Friend the Member for Middlesbrough (Mr. Bell) considered the case of Unicorn Heritage plc, which took £200,000 from the Government and subsequently went bankrupt? That put many other firms into bankruptcy, yet Unicorn Heritage's investors were again awarded money direct from the Government in tax returns. People employed by that company, and also those who were on its board and who played a leading part, are still able to conduct other profitable businesses and have important jobs in the Treasury. Should not that scandal be put right in future, if not by the Bill?
§ Mr. BellI entirely agree. We have expressed concern on many occasions about phoenix companies that go into liquidation but whose directors rise from the ashes, whereas the work force pay a heavy penalty—which is aggravated by statutory redundancy money not being as much as it should be.
We will extend as much co-operation as we can to the Minister in the preparation of a proper insolvency Bill that can be appropriately debated at every stage. We want to identify how, out of the morass of insolvency, there may be more management and worker buy-outs and employee share ownership schemes, and how those could be developed as a first option for any company in difficulty. Employees who have invested their working lives in a company should enjoy a return by having some say in the company's survival and future.
We are looking, not for a technical Bill that modifies a weakness in the law that was perceived way back in 1987, but for a comprehensive review of insolvency law, to make it easier and cheaper to obtain an administration order, to abolish the law of distress, encouraging creditors and Government Departments to use accountants to look at alternatives before closing a business, and looking more closely at the moratorium aspects of business debts. We must move away from the concept of closing down viable businesses. We must establish a culture in which troubled companies, professional advisers, creditors and 29 Government are committed to ensuring that troubled businesses, when essentially sound, survive periods of economic downturn.
As we said earlier, in the public interest and that of workers, management and business who may be uncertain, we are happy to give the Bill latitude in the House after it has been given due debate on Second Reading, in Committee, on Report and on Third Reading. Nevertheless, the matter should have been brought to the House and the weakness in the law rectified a long time ago. We welcome the fact that the Government have now brought it to our attention.
§ 4 pm
§ Mr. Neville Trotter (Tynemouth)The hon. Member for Middlesborough (Mr. Bell) referred to my background as an accountant. I remind the House that I served on the Committee that considered the Insolvency Bill in 1985. The hon. Gentleman referred to, perhaps, the too hasty passage of that Bill. It was anything but hasty. It was an epic occasion, as I remember it, with more than 1,000 amendments tabled in the House. The debate went on for weeks and months. The Bill came out in a somewhat better form than many of us who served on the Committee thought likely as there had been so many amendments.
It might be helpful if I explain some of the background to the situation that we now face. It was nearly 10 years before the matter came before the court; in fact it came before the court shortly after the 1986 Act came into force on a case involving Specialised Mouldings Ltd. That case did not have the full hearing that the recent Paramount Airways case did. The receiver went to the judge and said, "I am faced with a difficult decision here. This is what I think I ought to do, but will you tell me whether I am right?" The judge told him that he was right and upheld the situation that had previously prevailed for employee claims up until that time. That decision does not seem to have counted in the way that it might have, because. as I understand it, no transcript was made of the proceedings as has been done in the Paramount Airways case.
It was on the basis of the Specialised Mouldings decision that the rescue operations for thousands of companies have taken place in the past few years. It is the doubt over the situation in those rescued companies—or cases where attempts were made to rescue companies—that gives me most concern tonight. I congratulate my hon. Friends on their speedy action in putting the situation right for the future in the light of the Paramount Airways decision. I know that there are cases throughout the country, such as the one mentioned recently in my local paper, where an attempt to save a firm will get a boost from the action now being taken. But for that action being taken, I believe that we would have seen the end of recovery situations, which is the principal aim of the insolvency legislation—to try to rescue companies and preserve jobs. We are right in putting the Bill through speedily tonight to remove the doubt and uncertainty that there would otherwise be.
The Paramount case may well go to the Lords on appeal, but we do not know what the outcome of that would be. Three learned judges in the Court of Appeal have decided as they have. I am not sure whether they had the benefit of a full explanation of the thinking m the House during the Report stage of the Insolvency Bill when the matter came up for consideration. If one reads 30 Hansard, one sees that it is quite clear that the aim was not as interpreted by the Court of Appeal in the recent case. It was to
catch the case where a receiver knowingly allows an employee to contribute his services and says nothing to him for more than 14 days about payment for those services."—[Official Report, 18 July 1985; Vol. 83, c. 544.]The consequences of that would have been that an individual could have been employed by a receiver and never paid for being employed by him. The section was supposed to deal with that situation. No intention was ever outlined in Committee to bring about the consequences that the judges in the Paramount Airways case have held to be the law.I believe that the Government are right in what they are seeking to do today, but I have grave doubts about what will happen if the need to clear up the situation for the intervening years from 1985–86 to now is not tackled. The seriousness of the situation must be stressed. Many companies are involved and, potentially, many claims could be made on the basis of the interpretation of the law in the Paramount Airways judgment, which was completely different from what the law used to be before the 1986 Act, from what was said to be the intention that lay behind that measure, from the interpretation that was applied in Specialised Mouldings and from what everyone thought the position to be in the interim, including the Department of Employment, which confirmed recently that it believes that the decision in Specialised Mouldings to be the right one and will continue to apply it.
I am supportive of the amendment that, technically, has been tabled at the last moment. If it had not been that I was on the train travelling down from Tynemouth, I would have signed it. We should give great consideration to the need to correct the situation back to 1985–86.
Similarly, I would have been happy to support the amendment that would bring section 37 of the 1986 Act within the proposed provision if I had been able to do so. Why should the receivers who are covered by section 37 be treated differently from other receivers? We are talking of receivers or managers who are appointed under powers that are contained in an instrument for certain contracts. They have always been treated in exactly the same way as other receivers in respect of the priority of debts. I can see no reason why that should not be the position now. I am happy to support the relevant amendment.
The aim of all insolvency legislation is to preserve jobs. The action that we are taking—I have suggested previously that we should take it—will be helpful in preserving jobs in future. Without it, rescue operations will not be mounted. It is in all our interests that they should take place wherever possible, and those involved should be given every assistance to ensure that the operations are successful and preserve jobs for the future.
§ Mr. John Gunnell (Morley and Leeds, South)There is more or less unanimity in the Chamber this afternoon. Anyone who recognises the positive role that receivers have played in company rescues in the years since the Insolvency Act 1986 will welcome the Bill and appreciate that the major disruption in the work of receivers that has been caused by the recent judgment warrants an immediate response. We have before us an attempt to restore what was perceived to be the position before the Paramount Airways judgment.
31 Will the Minister confirm that it was the Government's intention when they introduced the 1986 Act—I think that that happened in 1984–85—to make the law as it will become when the changes that are set out in the Bill take effect? That is a key question. Our response to other issues, including those raised by the hon. Member for Tynemouth (Mr. Trotter) in relation to past receiverships, will perhaps hinge on the Minister's answer. Given the speed of the Government's reaction, it seems that a serious drafting error was made in the past. There should not be such major ambiguity in company law.
The error was not so transparent that it became quickly obvious, otherwise the present practice would not have continued for so long. It cannot be certain, therefore, that the Paramount Airways judgment will survive following appeal to the House of Lords. The Government are right not to wait to find out what will happen there, assuming that the matter goes to the House of Lords, but I would think that the receivers will insist that it does.
Am I right in thinking that confusion hangs on the meaning of "adoption" as used in present legislation? Is it possible that the word is interpreted differently in English and Northern Ireland law from Scottish law? Why is there no definition of "adoption"? It reappears in the Bill, and the provision of a definition would bring an end to any confusion. Presumably, those who drafted the Bill considered the meaning to be so well known that a definition was not required. In that case, I think it might be helpful to practitioners if, in his summing up, the Minister would define very clearly what is meant by the word "adoption". Should a receiver or an administrative receiver adopt the contracts of employees if he is not necessarily aware of them at the time? For example, at the time that a contract is dealt with there may be employees on extended sick leave or maternity leave who are not on the payroll. Despite this fact, are those employees "adopted" in the sense of the Act? I think it is important for people to know what the Act means in this regard.
I raised the question about on-going receiverships in the discussion which followed the announcement by the President of the Board of Trade and I accepted his explanation that he could not introduce retrospective legislation. As hon. Members know, that news has cost jobs already. A company called Michael Mayes—I think the Minister will know of it—is trading at Thurnscoe in south Yorkshire in the Dearne valley and its chances of survival beyond the next day or two are now remote. We were given a ruling that this legislation could not be retrospective and, therefore, the receiver had to act within 14 days. However, it was not possible for him to do so, which is a tragedy because that company may have survived. There is a real shortage of jobs in the Deane valley, as the Minister will know, and it is far easier to lose jobs than find them. The loss of that company is significant and we are all sad about it.
The key to the way in which we deal with the past—the hon. Member for Tynemouth said correctly that he hoped that the Minister had some constructive thoughts about this matter—lies in my original question: did the Government always intend the law to operate as it has operated for the past seven years? If that is so, I think some account must be taken of what I would call the fallout from the 32 Paramount judgment. That fallout is the implications for those who have been conducting receiverships for the past seven years.
As has been said already, there have been thousands of receiverships and hundreds of administration orders. Businesses have been kept going and workers kept in their jobs as a result of reliance on the court judgment already referred to—the 1987 case of Specialised Mouldings Ltd. Reasons have been given why the present judgment supersedes the 1987 judgment. Many jobs have been saved in that time. In some companies it has not been possible to save all jobs and in other companies a receiver has traded for far more than 14 days, taking on the contracts of employees on the assumption that they would not fall on himself, but has found it impossible to maintain the company in the long run. Therefore, receivers face considerable debts if the Paramount judgment is not reversed.
In those circumstances, is it reasonable that receivers should be liable for the contracts of all those people who have lost their jobs, despite the fact that it was the receivers' intention to keep them in their jobs if possible? Neither the receiver nor the employees concerned were under any illusions about who was picking up the bill—neither expected that the bill would finally pass to the receiver.
Press speculation suggests that the debt for receivers could run into millions of pounds. It seems obvious to me—I hope that the Minister will confirm this point—that this was never intended to happen. Receivers did not believe that they were liable and employees were never led to believe that the receivers would be liable. I understand that the Government will await the result of an appeal to the House of Lords, on the pretty certain assumption that there will be one. However, I very much hope that constructive thinking is taking place at the Department of Trade and Industry in respect of how to deal with a potentially messy situation should the need arise. After all, to a certain extent, the more constructive the receiver has been in his attempt to save jobs and to rescue companies, perhaps the greater is his possible exposure. That surely cannot be right.
It is regrettable that the timing of the Paramount judgment, and this House's correction of it, catch some companies which are in the middle of a constructive receivership and companies which, like RFS Doncaster, are trading well. Will the Minister be able to say anything in the debate about possible additional intentions if the need for those should arise? The Minister might be able to say something about the Government giving the matter constructive thought and that might help to keep running businesses which are on the edge at the moment only because of what has happened through the Paramount judgment.
Ironically, the seven-year time scale of the operation of what seems now to be unclear drafting, which must have taken place in the DTI, could well threaten our most experienced receivers and mean that they end up in receivership themselves.
§ Mr. Malcolm Bruce (Gordon)As Members in all parts of the House have welcomed the Bill, I hope that the Government will accept that the comments have been made in the spirit of ensuring that an amendment to an Act made necessary by a court hearing is passed quickly and 33 correctly. That is why amendments have been tabled which have been signed by myself, the hon. Member for Middlesbrough (Mr. Bell) and the hon. Member for Tynemouth (Mr. Trotter). Although the hon. Member for Tynemouth has had to leave the Chamber, I am grateful to him for saying that the amendments have all-party support. The amendments have been tabled in a spirit of helping the Government to ensure that we pass a Bill that meets the needs raised by the court case about which we are concerned.
There is no doubt that we need a rescue culture in this country. That means not a culture which seeks to put good money after bad when a business encounters difficulties, but a culture that recognises that with careful management, a fresh approach and some reorganisation, companies which get into difficulties can be rescued and continue, albeit in a remodelled format, to generate income and to employ people.
The core of this legislation and of the problem relates to the continuation of jobs and employment. That is the single reason why there is such cross-party support for the Bill. It has been said that if a Leyland DAF situation had arisen subsequent to the Paramount Airways Ltd. case, and before this Bill had become law, a rescue operation could not have been mounted successfully and would not have been mounted. The consequences of that to the United Kingdom would have been catastrophic.
When we recall the speeches of the President of the Board of Trade at the Dispatch Box during the debates on Leyland DAF, it is clear that he must recognise that this Bill is designed to ensure that there is time for a rescue operation to be determined on proper business grounds where the Government can stand back and allow it to happen without being placed under undue pressure to intervene when that might not be the most appropriate thing to do. I hope to persuade the Minister that if he is not prepared to accept the point he may run the risk of finding himself or his boss back at the Dispatch Box in future to deal with a potentially serious situation.
The hon. Member for Tynemouth advised me that one of the reasons why he has had to leave the Chamber is that he has to meet a Minister about Swan Hunter. The Swan Hunter receivership has been a long and ongoing problem which would have been threatened by the Paramount judgment. The Independent today reported that, according to Howard Davies of the Confederation of British Industry, the CBI is concerned that the uncertainty which the ruling has created in relation to outstanding claims and possible new claims threatens claims of up to £1 billion and could result in the bankruptcy of many medium-sized accountancy firms, with the consequential loss of a substantial number of jobs in the future. The Minister will recognise that that is only one person's opinion, but if it has any basis in substance it needs to be addressed.
Reference has been made to the fact that there may be an appeal to the House of Lords. I understand that Touche Ross has not yet decided whether to submit an appeal to the House of Lords. Even if an appeal is made, and is successful, however, it would be many months before it was finally processed and in the meantime a whole queue of similar claims may be made. That is a further reason why it is necessary to have a debate on the issues. The Minister must make the Government's position clear and the issues need to be addressed, not least because the courts are not only entitled but are required to look behind the 34 Bill, and presumably the Act that it seeks to amend, to see what was the objective and the intention of both the Government and the House of Lords at the time.
The hon. Member for Tynemouth made it clear that the 1987 case—the Specialised Mouldings case—was decided soon after the Insolvency Bill became law. It was not a published ruling but clear guidance which until now was accepted by everyone as the definitive practice on which normal receiverships and administrations could be modelled. There is no doubt, therefore, that the judge thought at the time that he was clarifying the clear intention of Parliament. This Bill shows that that was the clear intention of Parliament and Parliament is passing amending legislation as a direct result of the judge's ruling to make that clear. One hopes that the courts will take the ruling into account when any further appeals are presented to them.
I hope that the Minister will address the issue because the fact that the courts should take the ruling into account at present does not remove the immediate uncertainty. It has been reported, for example, that claims of up to £10 million are being lodged in the case of Olympia and York—the Canary Wharf development—and it has been suggested that some of the Maxwell companies may lodge similar claims. In a sense, I can see both sides of the situation. Having a former Maxwell company in my constituency, which is now British International Helicopters, I can understand employees wanting to take advantage of a ruling that might give them some benefit. One can hardly blame them for taking advantage of the ruling that the court has made available to them.
The trouble is that the consequence of the ruling going through, and the uncertainty that it creates, will inevitably lead to a situation where receivers will simply say that they do not intend to put themselves at risk in mounting a rescue operation, that 14 days is much too short a time for them to determine whether a company can be rescued and the liability to which they could be laying themselves open is much too great, so they will simply sell off the assets and completely liquidate the company, and the rescue will be abandoned. It would be for the greater good to ensure that that does not happen. We must get clear guidance and a clear ruling as quickly and as early as possible.
It is perhaps a little surprising that Mr. Justice Harman could have said that a practice that had been established for seven years, of issuing a letter saying that a contract will not be adopted, was only so much wind. That was a somewhat dismissive ruling by a judge on something which was clearly an accepted practice and which clearly reflected the wishes of Parliament.
There are amendments tabled in my name and that of the hon. Member for Middlesbrough which are tacitly and openly supported by the hon. Member for Tynemouth and on which we may have an opportunity to address the specific points in a little more detail. I shall therefore not detain the House any further, except to say that the Government have responded extremely quickly and it is appreciated that they needed to do so. It is understood that the consequence of that quick response is that there was little time to prepare the legislation—from a statement on Monday to publication of the Bill on Friday and debating it the following Monday. In those circumstances, I hope that the Government will approach the amendments and the comments that are being made in a constructive spirit and recognise that we are trying to ensure that the 35 legislation, when it goes through both the Houses of Parliament, delivers the goods, meets the intention of the House and avoids any further misunderstanding.
§ Mr. George Howarth (Knowsley, North)I join my hon. Friend the Member for Middlesbrough (Mr. Bell) in welcoming the fact that legislation has been introduced in such a short time to deal with the particularly knotty problem which has been caused by the judgment.
Although I understand the reasons for the speed with which the legislation was drafted and brought to the House, it is perhaps a missed opportunity. There are areas of insolvency legislation which give cause for concern and, where opportunities exist, they are often not fully exploited. I would like to use the opportunity of the Second Reading debate to flag up some of the issues based on my experience as a Member of Parliament dealing with constituency problems.
The first issue which concerns me—it is directly connected with the Bill—is employee rights during the period of insolvency. I am aware that, for example, there are a number of unfair dismissal claims which are outstanding and are waiting to go before tribunals which have arisen out of the lack of clarity about the rights of an employee in that situation vis a vis the administrative receiver or, if it moves on, the liquidator.
As a result of the legislation, those rights—that is, to be able to go to a tribunal and to claim unfair dismissal—must be looked into further. The case law on the matter—Leyland DAF, which has been referred to, and the case of Bowden v. Bowden—adds up to an area where there is concern which needs to be clarified further. It is a pity that we have not taken the opportunity to try to clear up that concern now.
My main point is the issue of what have been referred to as phoenix situations, where either the work force, the management or some part of the structure of an existing company—it may even be some of the directors—decides to try to rescue something out of a company which is in liquidation.
Let me state my experience briefly. For a fair part of the early to mid 1980s, prior to coming to the House, I was employed first by an organisation called CDS Training in Liverpool, and secondly by the Wales Co-operative Centre, which was set up by the Wales TUC. The main purpose of my employment during that period was to try to promote and set up plans for work-owned enterprises.
We were not prescriptive about it. We were involved with worker co-operatives, although often there might be just a partnership. In some cases, there was an employee share ownership plan, otherwise known as an ESOP. During that period, I was probably involved with attempts—in many cases succesful attempts—to set up 40 to 50 firms. Those mostly arose out of industrial closures and cases where the company was already in receivership.
I have some experience, and I realise the difficulties that the people in those situations are up against. However, I want to concentrate on my more recent experiences as a Member of Parliament. The Minister is familiar with at least one of the cases which I am about to mention.
In 1988, I think—so hurried has the process been, I have not had the opportunity to check everything—there was a 36 company in my constituency called Greenberg. It employed about 95 people and was a long-established firm which made glass products such as patio and industrial windows. Largely through bad investment in new buildings—it was a time of high interest rates—the firm could not carry on servicing its debt and went into receivership.
I, the work force and various people advising me, including the local authority, worked for about six weeks to set up an employee share ownership plan. We raised the finance from the work force, from loans and from grants from the Department of Trade and Industry. We set up the business. It was a difficult time for the people running the business. It was badly under-capitalised, as many business start-ups find themselves, but after about a year, despite all the difficulties, it was still going, although it still had financial problems. It was taken over by another firm. It has been a success.
About 25 to 30 people now work for the firm. That is considerably fewer than in the first instance, when the company was Greenberg. Nevertheless, we managed to save something out of the company. We had difficulties confronting the receivers and making them understand what was involved and in convincing everyone else that there was a business worth saving.
The second example occurred in 1993. A company in my constituency in Kirkby which had been known as Lyons Maid and at the time was known as Clarke Foods went into receivership. Sixty seven employees worked at the factory. The administrative receiver, Robson Rhodes, dismissed the work force almost immediately. The receivers managed to sell most of the Lyons Maid operation to Nestlé. There followed a period during which we tried to convince Nestlé to keep the factory in Kirkby going. We failed in that. However, at an early stage, Nestle told us that the plant and equipment at the factory could be passed on to the work force. So we had that assurance, but that was about all.
I had Adjournment debates in the House on the matter and tabled early-day motions. I negotiated directly with the shop stewards and Nestlé and the receivers to see what we could retrieve. After many months of work, we succeeded. I pay tribute, above all to the work force, but also to Knowsley council and the Transport and General Workers Union. The Department of Trade and Industry Minister also had a direct hand in the matter. We succeeded in saving more than 30 jobs.
We were defeated in the space of about six months not by the insolvency legislation but, first, by a rather bad summer last year. The firm makes ice cream products and the grim summer did not help to sell ice cream products. However, that was not all the story. The second difficulty was Walls's virtual monopoly on freezer cabinets, which makes it difficult for any other company to break into the market. That monopoly is currently the subject of a Monopolies and Mergers Commission inquiry. The monopoly stopped us promoting the products of Pendletons, as it had become known. At that time, I became—on an unpaid basis, I hasten to add—the chairman of that company.
Thirdly, we were defeated by the tight margins that the supermarket chains can extract from manufacturers. Although we were able to supply notably the Co-op, we were in hot competition with people who had more resources than us. Those were the difficulties that we had once trading, but we also had difficulties in negotiating and 37 obtaining any useful assurance or decision about the future of the company from first the receivers, Robson Rhodes, and latterly the liquidators, Arthur Andersen.
I will tell you how we did it, Mr. Deputy Speaker; it was not necessarily the recommended course of action. Early in the dispute the work force occupied the factory. They were taken to court and a writ was served on them to vacate the premises. They did so and then set up a picket line on the gate.
The only thing that we had going for us in all those negotiations was that Arthur Andersen & Co. knew that if we did not reach some accommodation a picket would immediately have been mounted on the gate. That is not necessarily the best way to deal with matters, but if a group of workers who feel that they can take over the company are reduced to that, inevitably they will take such action. It should not be like that. Let me explain what I think should happen.
For the benefit of the people who work for the company, whether they are managers or employees, and for the benefit of the economy, there should be a duty to try to achieve employee ownership or management ownership, or a combination of ownership, which may involve direct investment from entrepreneurs, before other options are considered.
I move on to my third example. After the experience with Pendletons, otherwise known at various times as Lyons Maid and Clarke Foods, I made an attempt, with two Conservative councillors, to do a rescue operation concerning a firm called J. De Roma. It was a short-lived attempt. After a couple of weeks, it drifted into sand. The first thing that happened was that, after a few weeks, the receiver sold off the blueprint for the product—a chill cabinet in which the National Blood Transfusion Service used to store blood—to a company in Warwickshire, so that there was no product left. All that that company had to do was to employ one of the engineers who knew the manufacturing process of the cabinets, and he bought the business. I think that that was grossly negligent on the part of the receiver. The whole business, complete with the work force and their skills, could have been sold if more time had been given. It may even have been bought by the work force. Yet all the receiver did was to sell off the blueprints, fairly cheaply. The purchasing company simply recruited one engineer and had a going concern.
There is much potential for legislation instructing receivers first to attempt to get something going on the basis of the existing business, or part of that business, involving the local management and employees. Perhaps a quarter of the 2,000 companies that go into receivership could be saved by such means. At the moment, I doubt that 1 per cent. are saved by those means. For the good of the economy, and of people who work in companies who find themselves in such a position, there is a strong case for an amendment to the Bill.
My hon. Friend the Member for Middlesbrough and I tried to table a new clause to the Bill, which would have succeeded in putting that duty into the Bill. Having consulted the Clerks, I realise that the scope of the Bill is perhaps too narrow for that new clause to have been accepted. However, I hope that in the near future—even perhaps as a result of a conversion today—the Minister will seriously consider my arguments. I have good cause for believing that the economy as a whole—never mind 38 those who work in firms that go into liquidation—could benefit from reorientation of the way in which receivers function.
§ Mr. BellWith the leave of the House, may I say that I am grateful for the opportunity to sum up some of the points that have been made for the Minister and to follow up on the speech of my hon. Friend the Member for Knowsley, North (Mr. Howarth). My hon. Friend argued, from his own experience, the importance and significance of employee share ownership schemes and schemes of that nature, in which the worker in the place of work participates in addition to drawing a salary.
It has always been the policy of the Opposition to extend protection and participation for workers in their place of work. We thought years ago that that protection and participation would come through nationalisation, which was perceived to be the simplest route to common ownership. One takes over an industry and, once it belongs to the state, the workers obtain the protection and participation that they had sought for years. Tomorrow we shall sit down and privatise, or go through the final stages of, the privatisation of our coal mines. We shall see the consequences of 14 years of Conservative Government on nationalised industry and the fact that a new Labour Government will have to find new concepts of common ownership. I am grateful to my hon. Friend the Member for Knowsley, North for drawing the House's attention to that matter.
The speech by the hon. Member for Tynemouth (Mr. Trotter) was useful in that he had served on the Committee that discussed the previous Insolvency Bill. I should point out that Mr. Justice Harman's judgment was considered to be obiter dicta only before the court. The hon. Gentleman referred to the Committee proceedings of the House, but those have no status in law and a judge in a court of law could not rely on them.
Great play has been made of the question of an appeal to the House of Lords against a Court of Appeal judgment. I noticed that the Minister was careful to say "may" appeal because the Court of Appeal has refused leave of appeal to the House of Lords and it is a question whether the matter can be included in another motion elsewhere. It is not entirely clear that an appeal to the House of Lords is possible.
My hon. Friend the Member for Morley and Leeds, South (Mr. Gunnell) referred to RSF Doncaster, which was helpful. The hon. Member for Gordon (Mr. Bruce) referred to Leyland DAF. The case of Swan Hunter is dear to my heart; so I see the significance in pushing the Bill through quickly tonight. We have discussed the consequences of it not being retrospective. In the Paramount case alone, some £600,000 may fall on the receivers' shoulders if the law or its interpretation is not changed tonight. Other cases may be lined up, depending on the statute of limitations, whether it tolls and whether the facts are different in those cases. Nevertheless, because there will be a great deal of uncertainty throughout the profession of insolvency practitioners, we shall return to that matter in Committee.
Some of the points that have been made show that we need a proper overhaul of the Insolvency Act 1986 and this may be a first shot at that. Although we wish the Bill well, we shall not leave the subject of insolvency to lie on the table, as it has done for so long. Obviously, the Minister is 39 aware of his Department's consultation paper and the fact that the consultation process comes to an end on 31 March. At that time, we shall seek some rapid conclusions from his Department.
§ Mr. Neil HamiltonIt would have been easy for Opposition Members to turn this into a general debate on the state of the economy as reflected in the problems of insolvent companies. I congratulate them on resisting the temptation to trivialise the issue so that we can concentrate on the serious points in the Bill.
Many points have been raised by the hon. Members for Middlesbrough (Mr. Bell), for Gordon (Mr. Bruce), for Morley and Leeds, South (Mr. Gunnell) and for Knowsley, North (Mr. Howarth) and by my hon. Friend the Member for Tynemouth (Mr. Trotter), who is, at this moment, meeting people who have come to lobby Parliament about Swan Hunter, which is important to his constituency. Most of the points have concentrated on retrospection, with which we shall deal shortly in Committee. I hope that it will be for the convenience of the House if I deal with those points in that context rather than repeat myself.
Various points were made about phoenix companies. I appreciate the public concern about the phoenix problem but we must act in a way that reflects due process. It is far from being the case that all collapses involve a degree of moral turpitude on the part of company directors. That matter was dealt with in detail during the passage of what became the Insolvency Bill 1986, when the approach, which is often enjoined upon me, of seeking to prevent company directors from going back into business after their companies have collapsed was decisively rejected by the House. Such an approach would be a slur on the vast majority of company directors whose companies fail not for reasons of design on their part. Were we to prevent company directors from continuing in business because they had been involved in a company that had unfortunately failed through no fault of theirs, it would be not only a significant injustice towards those individuals but no good for the economy in general.
Nevertheless, some draconian powers are available to us under current company and insolvency legislation, which enables us to fasten on those who are guilty of misfeasance. Naturally, we must prove to the satisfaction of a court that they have acted in a way of which the law disapproves. Those matters are often difficult to prove and suspicions remain, which gives rise to the public's feeling of resentment that certain individuals can take advantage of what are regarded as loopholes in the law. I do not regard them as loopholes, although I hope that we shall always catch wrongdoers and punish them for their acts. We all know that, in the nature of things, it is impossible to do that in every case, hard as we try. We must ensure that the business environment precludes such activities. Where they take place none the less, we must ensure that we have the means of bringing them to book if possible. We must beware of throwing the baby out with the bath water. To get at one problem, we may create many others.
The hon. Member for Morley and Leeds, South asked about the meaning of adoption. I shall put my view on record so that he can read it in due course. If he then still has questions, I shall be pleased to try to deal with them.
40 Adoption of a contract means that a person procures the performance of a contract. In effect, therefore, the person refrains from repudiating it. In such circumstances, the person can be said to adopt the contract. A contract may be adopted by words—"express" adoption—or by conduct—"implied" adoption. The conduct constituting the adoption may be payment of wages, for example. It is impossible to be exhaustive and I do not wish to go into the full ramifications of the meaning of a term that might fall to be decided by a court in an individual case. I hope that my statement will help the hon. Gentleman.
The hon. Member for Middlesbrough was rather hard on me and my Department in respect of the length of time that we have taken to deal with this difficulty, which became acute only with the Court of Appeal's decision a short time ago. It is not true to say that the situation was identified back in 1987. It was addressed by the High Court in February 1987 in the Specialised Mouldings case. The result of the court's consideration seemed to provide a practical solution, if there was a problem at all. The problem with which we are dealing today is that the Court of Appeal took a different view. Hence, we are seeing a development of the law, which is why we are dealing with the problems in the Bill today.
I hope that I have dealt with the points that will not arise again in Committee. I am grateful to hon. Members of all parties for facilitating the passage of the Bill. I almost forgot the point made by the hon. Member for Knowsley, North. The one person whom he did not congratulate on the insolvencies in his constituency was himself. I know how hard he and the hon. Member for Knowsley, South (Mr. O'Hara), who is also present, have worked in the interests of their constituents, especially in the Pendletons case in which I was invited to participate. I am sorry that, in the event, it was not possible to save the jobs that they worked so hard to save.
The argument about special treatment for employee share ownership schemes is not wholly open and shut. Although it is not relevant for the purposes of this Bill, the hon. Member for Middlesbrough asked me to give serious consideration to the argument. He knows that I shall always consider seriously any points that are put forward in good faith and schemes that might save companies that would otherwise fail. Particularly as the Minister with responsibility for the north-west and as the representative of a constituency not far from that of the hon. Gentleman, I am as interested as he is in saving jobs in the region and in facilitating improvement of the local economy. Thus, I shall be very happy to consider any points that the hon. Gentleman cares to raise in another context. As he accepted, it would not be appropriate, in the context of the Bill, to go too far down that avenue.
I am grateful to hon. Members on all sides for facilitating the speedy passage of the Bill and I commend it to the House.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Bill committed to a Committee of the whole House.—[Mr. Conway.]
§ Bill immediately considered in Committee.