Groceries Code Adjudicator Bill [HL]

Baroness Byford Excerpts

Tuesday 26th June 2012 Grand Committee

[Baroness Byford]

My Lords, I declare a past interest. We are still farmers, but we do not supply supermarkets any longer. In fact, we used to have a contract with Waitrose to supply pigs. I reiterate what the noble Lord, Lord Knight, said earlier: Waitrose offer a very good example and a steer to a lot of the other retailers that we are talking about.

I will comment on my noble friend Lord Howard of Rising’s point. I would be anxious if we went back down the route that he suggests. I also seek clarification from the Minister, or from himself, on how you classify what is “publicly available”. Obviously, a lot of information is hearsay and is not publicly available. I would be really quite concerned about that.

On the earlier comments about third parties being able to give evidence to the adjudicator, this morning I asked the National Farmers’ Union, which has sent a briefing to all of us—and of which I declare myself a member—whether it would only do that on behalf of its members. It seemed a logical question to ask. Otherwise, there may be many other people who would be affected if they were willing to take it up on everybody’s behalf. I think that the answer I got to that was that, generally, it would probably be instigated by a member, but that other evidence and considerations would obviously be taken into account. I am quite happy with what is in the Bill, and would be quite concerned if we started narrowing it back just to information provided by a supplier. We have been down that route before. That would identify the supplier to the supermarket very quickly, which the Bill is not trying to do. The acceptance that third parties can give evidence and bring things forward to the adjudicator is hugely important.

My noble friend Lord Howard of Rising is right that the balance lies where mischievousness creeps into it. Clearly, all Members of this Committee would be horrified about that. My reading of the Bill is that I am reasonably comfortable with it, and am not particularly concerned about that. The detail in the Bill does not totally stop it happening, but it certainly discourages it. These instigations of investigations should only happen on good grounds.

[Baroness Randerson]

My Lords, I wish to state clearly that I do not agree with the arguments of my noble friend Lord Howard of Rising. If there had been a robbery, would we ever argue that a witness to that robbery could not give evidence to the police and that the only people who could do so would be either the robber or the victim? We have to open this out so that the general principles on which we base so many issues of this nature in society apply, so that other people are allowed to make complaints. I give one example: there are plenty of organisations in civic society that might wish to make a complaint on behalf of a supplier in this case. I remind noble Lords that other aspects of the Bill ensure that it is not in your interest to make vexatious complaints. The adjudicator can, at his or her discretion, apply costs against those who do so. I am absolutely sure that a supplier who sought an advantage against another supplier in the way that has been suggested would be the subject of that kind of cost.

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Moved by

[Baroness Byford]

28: Schedule 2, page 14, line 20, leave out “is more than 10 miles” and insert “cannot be reached by the use of public transport in under half an hour”

[Baroness Byford]

My Lords, we have moved on to looking at investigations. My amendment seeks to amend Schedule 2(6). The Explanatory Notes refer in line 3 on page 11 to the adjudicator considering information supplied by whistleblowers. The rule in the Bill that allows the payment of expenses only to someone who has to undertake a journey of “more than 10 miles” could exclude—I do not say that it will do so—people who live in the countryside. As we know, if they do not have a car, public transport can be quite a problem. Does the choice of a distance of 10 miles follow what has been provided for in previous legislation or does it relate only to this Bill? A distance of 10 miles in urban areas with plenty of transport options is one matter, but in rural areas where buses sometimes run only three times a week, it is another. Is it necessary to restrict this provision to that distance? It could well be that someone has to make a six-mile journey and cannot manage it easily. As the Bill stands, they would not be entitled to any financial help to get to the adjudicator and give their evidence.

Earlier today, we had a meeting of the All-Party Parliamentary Group on Rural Services. One of the things we talked about was the provision of rural bus and rail services. I have to say that it is an increasingly difficult problem. For those who own cars, it is not something that needs to be thought about, but for those who do not own cars, it is. If someone happened to be a whistleblower, which is what we are talking about here, and had lost their job, they might find themselves in difficulties. I have therefore tabled the amendment to seek clarification. I beg to move.

[Lord Knight of Weymouth]

My Lords, I am interested in the noble Baroness’s amendment. I shall not comment on it at length, but I understand the problem she raises here. I want only to ask the Minister whether, under paragraph 16 of Schedule 1, which we discussed earlier in respect of incidental powers, it would be better to offer the adjudicator some flexibility under this wonderful paragraph and thus allow him to use his judgment on what would be a reasonable level of travel expenses.

[Baroness Wilcox]

My Lords, I can understand why my noble friend is asking this question because she lives in the countryside. I live in Cornwall and I know about buses in rural areas, and can understand the principle behind the amendment. From a practical point of view, a simple distance criterion will be much easier for the adjudicator to apply than one based on the time taken to use public transport. It says here that it is more straightforward and harder to dispute to decide whether someone has travelled more than 10 miles than to calculate whether it would have been possible to make that journey within half an hour on public transport.

However, my instinct is similar to that of the noble Lord, Lord Knight, and I feel that somehow or other the adjudicator should at least be able to have some thoughts on this matter. Although I shall ask my noble friend to withdraw the amendment, I can say that we will go back and look at this issue to see what the answer may be. I do not know whether there can be some discretion, and I may be treading on all sorts of impossible ground, but when we discussed this matter previously, and my team asked why we should consider this, I said, “I think you will find that this is a rural question”. There is obviously sympathy in the Committee for my noble friend’s question. I therefore ask her to withdraw her amendment. However, I will take it away and see if there is anything else that we can come back with.

[Baroness Byford]

I thank my noble friend for that response. I am not wedded to the half-hour period suggested in the amendment, but I wanted a debate about the need for rural accessibility. I am grateful to the noble Lord, Lord Knight of Weymouth. We all appreciate some of the real difficulties that people face. I am grateful to the Minister, and it gives me great pleasure to withdraw my amendment in the hope that we will come back with something at the next stage. I beg leave to withdraw the amendment.

Amendment 28 withdrawn.

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[Viscount Eccles]

My Lords, I have an amendment in this group. I am in full support of the noble Lord, Lord Browne. My amendments dovetail entirely with what he has just said. I want to drop subsections (3) and (4) of Clause 5 because, in this media age, the idea that an investigation report will be published and that the identity of the retailer will not come out is not workable. Again, it feeds the whole world of suspicion, innuendo and investigation of another kind. On subsection (4), if a retailer’s name is given, apart from the reasons for the decision having been given, the retailer would have been given an opportunity to make a comment and to know which way the report was going, as is normal in order that it could be agreed by one and all to be a well balanced and fair report.

[Baroness Byford]

I will speak to my Amendment 34 in this group. It is a simple, probing amendment to ask whether the wording implies that a supplier will never be mentioned and that, if a supplier is mentioned, he or she does not need or deserve a second chance to comment. For example, if a retailer is mentioned in the draft, it can see the copy and comment on it. As a result, the draft may be changed. Should it not be open to all parties involved in the investigation to know both the original wording and the comments made?

[Lord Borrie]

I cannot see how the Minister can possibly have a good reason for rejecting the perfectly straightforward amendment of by my noble friend.

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[Baroness Wilcox]

My view—and that of the advisers behind me—is that at this stage I need say only one thing: I will write to the noble Lord. That will be easier and fairer. We will make sure that everyone else receives a copy of that, too. I apologise for not being able to be clearer at this stage. Maybe it is getting late. Furthermore, regarding the deletion of subsection (4), it is only fair that if a retailer is identified in a report they are given a reasonable opportunity to comment on a draft of that report before publication.

That brings us on to my noble friend Lady Byford’s amendment, which would require the retailer’s comments to be published as an annex to the report. Although I understand the thinking behind that, on balance it is unnecessary. Although the retailer may comment, the adjudicator is not obliged to include any of these comments and the final report is fully the adjudicator’s. Furthermore, if a retailer knew that any comments they made would be published, it could impair free and frank discussions. I hope that that clarifies the position a little. Apart from the fact that I will write to everyone to clarify the point about freedom of information, I ask noble Lords to withdraw their amendments.

[Baroness Byford]

I am slightly mystified by the Minister’s response to my question. I would be grateful if she would take it away and think about it because it was a surprise.

[Baroness Wilcox]

Yes, of course.

Localism Bill

Baroness Byford Excerpts

Thursday 14th July 2011 Lords Chamber

Moved by

[Baroness Byford]

148ZZBB: After Clause 99, insert the following new Clause—
“Registration of land
In section 15 of the Commons Act 2006 (registration of greens), after subsection (10) insert—
“(11) Regulations may provide for amendments to be made to the criteria by which a new town or village green can be determined in order to restrict the scope for such applications.””

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[Baroness Byford]

My Lords, I remind the House of my interests, particularly my membership of the CLA. We come to the section of the Bill which causes it and others concern. As I see it, if an area of land is designated as a town or village green, any development on it is prohibited notwithstanding any grant of planning permission. As a result of the changes made by the Commons Act 2006 and a series of court cases, it is now far easier to probe that a particular area is a town or village green than was previously the case. It is of course important that bona fide applications should succeed but, all too often, spurious applications are being made with the aim of overturning the effect of planning permission being granted. I believe that the Minister and his team have been in discussions with the CLA, so I will not go into further detail on that.

However, I have also been contacted by Sue Chalkley from the Hastoe Housing Association, which has raised the issue of vexatious use of the towns and village greens registration system to delay or block legitimate development. It is concerned that such misuse is causing increasing delays and costs to developers. The risk of having land blighted by a TVG application is a considerable deterrent to landowners. In rural communities, this problem is more acute and may well jeopardise the provision of much needed affordable rural housing.

I give but one example: in Marsh Gibbon in Bucks, eight affordable houses were planned, with six for rent and two for shared ownership. A half-acre site was chosen by the parish council and the planners. The field had been farmed for over 200 years, most recently for strip-grazing dairy cattle. Full planning permission was granted in February 2008. The parish councillor and the landowner were adamant that the field was not a village green. A TVG application was made on the whole of the 15-acre field. In June 2010, the inspector’s decision came. The TVG application was unsuccessful, but one should be aware that there was a delay of two and a half years at a cost of £80,000 to Hastoe Housing Association.

We need those village developments, as indeed we need developments elsewhere, and I am very concerned that the Bill will not help in that way. In answering a Question on 23 May, my honourable friend Richard Benyon indicated that from 2005 to September 2009, 650 applications were made, 99 were granted and 551 were rejected. I understand that it costs nothing to put in a TVG application, but the costs incurred to the registration authority can be significant. There is a problem and I beg to move.

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My noble friends and the noble Lord may feel that we have taken too long over our deliberations on whether changes to the registration criteria for town or village greens are needed. I agree with them, but I very much hope that we shall be able to announce our conclusions later this summer, and that my noble friends and the noble Lord will see that those conclusions respond to many of the concerns raised tonight. Given this assurance, I hope that the amendment can be withdrawn.

[Baroness Byford]

My Lords, I thank the Minister for his, I think, encouraging and detailed response. There are clearly difficulties. Indeed, my noble friend Lord Greaves accepted that 551 rejected schemes means a great trial for each of those individuals who had to go through the process. They are very costly and a great deterrent to landowners opening up some of their land to future development, particularly for affordable rural housing, as we hope they will. However, I am grateful to the noble Earl and particularly pleased that there will be ongoing discussions. I hope we may have some news later in the summer, perhaps before the Bill is passed. With those few comments, I beg leave to withdraw my amendment.

Amendment 148ZZBB withdrawn.

Localism Bill

Baroness Byford Excerpts

Tuesday 12th July 2011 Lords Chamber

[Lord True]

Before my noble friend sits down, may I say that I was disappointed by his absolutely granite remarks about supermarkets? There are serious issues around what is a vital, viable, sustainable and diverse high street. Many factors are involved, both economic and social, and I do not think that Parliament can for ever lag behind public opinion on this matter. We all acknowledge and respect small shops in high streets, but the reality is that, up and down the country, people believe that our high streets are being systematically parasitised in a property grab by a small number of large businesses, which frankly do not worry too much about the profitability of individual sites.

I do not know whether the answer lies in this Bill or in planning, but I would submit that in social terms Parliament must address this matter with some seriousness and urgency. The nature of our high streets is changing. I believe that it is changing too fast and, as I have asked in the course of our discussions on the Bill, we should at least look to see whether there is a way we can do slightly more to protect the diversity of our high streets. That may be through giving grants and setting up business districts, but we do not have the resources to do that kind of thing. However, if we could bar the gate to one or two predators, I believe that that would be extremely helpful.

[Baroness Byford]

My Lords, before the Minister responds to my noble friend, perhaps I may say that I am certainly a great advocate of variety and choice. However, it worries me that it is actually the shoppers themselves who do not support independent shops. That is why those shops have been squeezed out of many places. We need to resolve that in a philosophical way, and I am not sure how that can be done within this Bill.

I understand the point that has been made all around the Committee and I am sympathetic to it, but what we see, particularly in smaller towns, is that people will use the shops in a minor way but continue to do their bulk buying in a supermarket because that suits them better. This is the dilemma we face. Occasionally I think we ought to put our feet where our mouth is, if I can use such a dreadfully vulgar expression. I am not sure how this is to be done in a Bill. I should like to add a word of caution. I am a huge supporter of independents and we use our local shops whenever we can, but we are lucky in that our village is quite large and still has a variety of shops. In some areas, the shops have disappeared, so the nearest shop is probably in fact a supermarket.

[Lord Taylor of Holbeach]

Perhaps I might respond because otherwise we will prolong a discussion about something that is not particularly apposite to this group of amendments. I believe that all sides of the Committee have faith in liberal market economies, and one of the effects of liberal market economies is that consumers tend to make their own choices. My noble friend Lady Byford pointed that out. I am really rather sorry that my noble friend Lord True is slightly less enamoured with the market, but I would say to noble Lords that retailing is a highly competitive business. Any noble Lord who has been engaged with retailing in any way will know just how competitive it can be. Indeed, it is changing all the time. The latest development in the area from which I come is not a shop but a shed, where people go to collect their orders that they have placed online.

I am sorry, but we live in rapidly changing times. It is a great challenge to local communities and a great challenge to those who are trusted by election to run local authorities, but the Bill is designed to give local authorities power to set the framework in which I suspect noble Lords will all accept that the market has to operate. I hope that it is possible for noble Lords not to press their amendments at this stage.

Localism Bill

Baroness Byford Excerpts

Thursday 23rd June 2011 Lords Chamber

[Lord True]

I hope that I am not behaving badly through inexperience, but I had wanted to respond to the remarks made by others on this amendment. Am I behaving badly?

[Baroness Byford]

No, you need to move the amendment.

[Lord True]

I would like to move the amendment. My point is twofold. The noble Lord, Lord Greaves, others and I were grateful for the support that was given in the earlier discussion. I think that it underlined the point that decisions are not localist in the way that, in my submission, they should be. We need not have regulations of the kind that I am suggesting might be considered if the lower-tier authority were simply prepared to decide where a bus stop should be on its high street. If the Government wish in their reflections on the Bill to come forward with proposals to localise those decisions then, in the spirit of what my noble friend Lord Jenkin said, I would welcome that. Since I do not anticipate that, though, I am asking my noble friend to consider, before we get to Report, the relationship between the lower-tier and higher-tier authorities.

The problem with the Bill as it is now framed, as I read it, is that a local authority may make propositions to the Secretary of State about regulations prescribing arrangements concerning its own procedures but not regarding arrangements relating to another authority’s procedures that affect activity in its own area. I may be wrong in reading the Bill in that way; if so, at this or a later stage my noble friend may be able to enlighten me. As I read it, though, this great Localism Bill, the principle of which we all support, does not give lower-tier authorities the opportunity to suggest that their own people be addressed in a more localist manner by higher authorities.

I regret if I have not been succinct in making this point, but I urge my noble friend and those advising her to consider it seriously. Our daily experience—my noble friends Lord Greaves and Lord Howard of Rising have given examples—show that these matters affect people in their daily lives. As our consideration of the Bill continues, I urge my noble friend to think further and to come back on this matter at a later stage.

[Baroness Byford]

My Lords, I think that the slight difficulty arose because the noble Lord, Lord Beecham, got up to speak before I had a chance to get in. I apologise for not speaking before he wound up on his amendment.

I come with no practical hands-on experience in local government but I want to reinforce the points that my noble friend is trying to make. The noble Lord, Lord Greaves, said that there was widespread frustration, as indeed there is, from parish level up to district level and beyond. I hope that the Bill will in some way resolve some of the difficulties that my noble friend Lord Jenkin of Roding spoke about. We have a great opportunity to try to simplify things and ensure that local communities can act in a manner that is in their own best interests. If we are promoting much more involvement of local communities through the big society, it seems a shame if the Bill is not going to ease some of the situations that different tiers currently find themselves in. I hope that my noble friend will have a chance to reflect on this. If the wording is not right—often it is not exactly what the Government of the day wish—it is the thrust of the amendment that is important. It is trying to ensure that local authorities and local tiers take on that responsibility and do so in the proper, accepted manner. It is also trying to ensure that, where there are disagreements, there should be discussions between the tiers, whichever tiers they happen to be. I commend my noble friend’s amendment.

[Lord Wade of Chorlton]

My Lords, listening to this discussion, I am prompted to remind the House that in 1994 the then Conservative Government established an ad hoc Select Committee of the House of Lords to reveal the relationship between central and local government. I was privileged to be a member of that committee. We took a great deal of evidence at the time from local authorities, government officials and Ministers to review whether the top-down control of local government was in everyone’s interests. The recommendations that we came up with looked closely at the establishment of the cabinet system and the establishment of mayors, and we looked at how local government should not necessarily be thought of, as it was then by central government, to be all the same.

We recommended in our report—it is a long time since I have looked at it—that we should see local government evolving as it was decided by the local community rather than by the centre. I remember that we were struck, when we took evidence from the principal secretaries of the departments, by the fact that they were anxious to see uniformity within local government and not to allow local people to establish different ways of governing as it suited them—indeed, they were anxious to prevent that. That applied to planning, development and local government’s relationship with all sorts of services.

When I first saw the detail of the Localism Bill, I thought that it was another step forward in accepting the recommendations that we had made and that it gave an opportunity to local government to be different and respond to what local people needed rather than to what central government needed. However, I am rather concerned, from the way that this argument is going, that the views expressed in the Bill are not going to provide the freedom that we recommended way back in 1994. Many of those recommendations have now been accepted by central government, but I feel that this might be a step backwards rather than forwards.

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[Lord Shipley]

My Lords, I will speak to Amendments 53, 54 and 55 in my name. Each is a probing amendment to get confirmation from the Minister that there will be no deterioration in the access of the general public, the press and opposition councillors to meetings and to information. I seek that reassurance because, as the noble Lord, Lord Beecham, says, it is quite difficult to get the right wording. The overriding intention must be that there should be no deterioration in what currently pertains in local government for individuals—the public, the media or other councillors—seeking access to meetings and information. The Bill confers an awful lot of powers on the Secretary of State to make decisions in that area. I understand why that is, but I would be more comfortable if it was absolutely clear to the general public that there will be no diminution in their access to information and meetings.

[Baroness Byford]

Perhaps my noble friend would clarify the position. I would like to see a presumption that the meetings will be open, but obviously under certain circumstances access will be restricted. As things stand, it is a case of either/or; there is no presumption that open meetings will be the norm and that meetings held in private will be exceptional. Perhaps the Minister will comment on that.

[Baroness Hanham]

My Lords, the current presumption of meetings being held in public comes under the Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000, with which I am sure the noble Lord is entirely familiar. The general principle of that is that there is a presumption in favour of openness, where key decisions of executives are made.

We are—I hardly dare to say the word—aiming to make new regulations which will remove some of the current prescription that make it clear that there is a presumption in favour of public meetings. As the noble Lord has already said, it is essential that there is some ability for a committee to close its proceedings for private or confidential reasons, but those must not be outwith what would normally be discussed in public. We are going to retain the parts in the Local Authorities (Executive Arrangements) (Access to Information) (England) Regulations 2000—I will not go through that again—to ensure that written records of certain decisions must be available to the public. We are also going to regulate how they must be made available so, as a result of what we are proposing, there will not be any deterioration in the right of access to meetings. We will just tidy up to make it clear that, as the noble Lord and other noble Lords have said, the presumption in favour of open meetings is absolutely understood.

Localism Bill

Baroness Byford Excerpts

Monday 20th June 2011 Lords Chamber

[Lord Dixon-Smith]

My Lords, it seems a long time ago now, but I spent 28 years in local government. The noble Lord, Lord Greaves, has done the House a favour in tabling this amendment because it has enabled us to have this useful, fundamental debate before we get into the detail. As I was unable to speak at Second Reading, I should declare myself as a landowner in Essex, in case anyone wishes to raise it at any point.

The noble Lord, Lord Elystan-Morgan, has pointed out the problem with the amendment. There is much in it with which one could agree in principle. I think similarly to the noble Lord that, the more one tries to define localism, the more one is at risk of destroying it. Once you start to spell it out in words of one syllable which ordinary people can understand, you begin to restrict freedom of action. As I understand it, the purpose of localism is to get local matters back into the control of local people as much as one reasonably can. However, the Bill does not tackle the fundamental problem that is faced by all, which is the issue of local government finance. When I was first a Member, my county received less than 50 per cent of its finances from the centre. I remember warning the council in those days of the dangers if that balance shifted. Today, the balance is somewhere near 80 per cent from the centre. Whatever we do in the Bill, there will always be that fundamental weakness: the ability of the centre to control events at a local level because of a lack of financial independence.

If anyone wants to try to interpret the Bill, they should first read this debate. Everything that has been said is appropriate and relevant and it has been very useful to have this discussion. I look forward to hearing what my noble friend on the Front Bench has to say, but I hope that the noble Lord, Lord Greaves, will not take the amendment any further. It seems to me that he has achieved what he wanted in having this debate. If we tried to put this down in writing, I am sure that we could all think of additional words and words that we would prefer not to see, but if an issue came before the courts on this basis, I think we would be giving them an impossible task. Having had the debate, I hope that the matter goes no further.

[Baroness Byford]

My Lords, I was very disappointed not to be able to speak at Second Reading as this is a matter very close to my heart. On this occasion, I do not believe I have an interest to declare in that I have never been a local councillor. My family has farming interests in Suffolk, which perhaps I should declare, as that will come up later. Clearly, over many years, I have been involved in local organisations and charities, some of which are declared in my interests.

The amendment has given us an opportunity—particularly those of us who could not speak at Second Reading—to speak on this matter. I am a staunch believer that decisions should be taken at the lowest level. I welcome the Bill and look forward to taking part in the various aspects of it, when we may want to strengthen, improve or alter it slightly. That is the nature of the Bill; it is huge and covers a wide section of specifics.

However, I have slight difficulties, even with this amendment. It is headed “Purpose of this Act”, and proposed new subsection (1)(a) says that,

“there is a presumption that the local level will prevail unless there are clear and over-riding reasons why it should not”.

It does not explain what would happen then or what that would achieve. I do not think that it is appropriate to nitty-gritty one’s way through the amendments at this stage. Various questions need raising on them, word by word and sentence by sentence.

I actually rose to say that, although we have had this worthwhile short debate, I do not believe that my noble friend’s amendment is necessary. The Bill clearly sets out what it wants to do. When we come to the individual clauses within it, there may well be important issues that we want to look at and reflect on in greater detail. At this stage, I want merely to say that while I have sympathy with the amendment, it is not one that I support.