Avanti Trains
Lord Browne of Ladyton Excerpts(8 months, 2 weeks ago)
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Lord Davies of Gower (Con)
I must confess that I am not aware of that, but it is something that I shall take back to the department and look into.
Lord Browne of Ladyton (Lab)
My Lords, why will the Government not just publish the contracts that we have with train operating companies? When I travel on Avanti back and forward, on every journey there is somebody in the carriage I am in who knows something about the contract, and I can tell you that the Government do not come out of any of those conversations well. Are all these contracts different for different train operating companies, so that they can compete with each other—because they do not seem to be? Why do the Government not just come clean and tell the people who are paying for all this nonsense what the contracts state that have been made on their behalf?
Lord Davies of Gower (Con)
The Government are very conscious that it is taxpayers’ money; they keep that in mind. As to publishing contracts, again, that is something that I would have to take back to the department.
National Air Traffic Services: Operational Failure
Lord Browne of Ladyton Excerpts(1 year, 2 months ago)
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Baroness Vere of Norbiton (Con)
As I think I have already outlined, there is no mechanism by which airlines can seek financial compensation directly from NATS in this circumstance. However, there is a mechanism whereby charges can be reduced in the future if NATS does not meet its service targets.
Lord Browne of Ladyton (Lab)
My Lords, when the investigation into what the Minister refers to as “these events” is completed, if it concludes that there was negligence on the part of NATS or people who work for it, surely NATS should be responsible for compensating those to whom it owed a duty of care—namely, the airline companies and the passengers. Is that not how it works in this country?
Network Rail: Funding and Reliability
Lord Browne of Ladyton Excerpts(1 year, 6 months ago)
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Lord Browne of Ladyton (Lab)
The Minister cautions me not to believe everything I read in the paper. Recently, I read in the paper that Avanti West Coast was rewarded with over £4 million in taxpayer-funded bonuses and that the payout was awarded for a
“period in which Avanti was UK’s worst train operator for delays”.
Should I believe that?
Baroness Vere of Norbiton (Con)
Funnily enough, I do not wholly recognise those figures, but all the contracts and the rationale behind them are set out and published. All the performance information that goes into the award of any financial returns is assessed by an independent evaluator, and discussions are made on that basis. The contracts are prepared well in advance, and we must abide by them.
P&O Ferries
Lord Browne of Ladyton Excerpts(2 years, 7 months ago)
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Baroness Vere of Norbiton (Con)
I can reiterate that all of the routes previously operated by P&O Ferries and currently temporarily suspended are being reviewed by the Government; we are assessing and ensuring that capacity is available. The noble Lord talks about an incredibly difficult and complicated area; of course we will have conversations with the Northern Ireland Executive and, indeed, all devolved Administrations about how we can ensure decent standards for those seafarers who work on the international routes.
Lord Browne of Ladyton (Lab)
My Lords, this template must be deeply worrying for the Government. Post Brexit, we were going to be a high-wage, high-skilled economy; now we discover that there may well be a massive loophole in this ambition, through which companies like DP World and P&O Ferries that are motivated to do so can drive a coach and horses. If they can complicate their contracts in ways that are not covered by our law, they can dismiss people by not giving them appropriate notice, or any notice in this case, and not consulting with unions as they would otherwise be required to do, and then replace them with low-paid, apparently unskilled or lower-skilled workers on very temporary contracts where they have no continuity of work. The Government must be very worried if they have discovered this, so what are they going to do to make sure that nobody else can drive a coach and horses of this size through the protection of workers, particularly high-skilled and high-paid workers?
Baroness Vere of Norbiton (Con)
I do not feel that this is a systemic problem for the British economy. These are unique circumstances; they apply to the maritime sector where, of course, there is a very global workforce, particularly on the international routes. When you operate in non-territorial waters, the different jurisdictions that can apply are many and varied, as I said earlier, depending on the flag of the vessel and various other factors. So I do not see the issue that the noble Lord is painting as a widespread systemic factor across the economy, but it is something that we will need to be well aware of for maritime purposes. It is the ambition of this Government to build our skills in maritime as a world-leading maritime nation; indeed, our document Maritime 2050 set out how we were going to augment British skills to get them onto British-flagged vessels.
Airports National Policy Statement
Lord Browne of Ladyton Excerpts(3 years, 9 months ago)
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Baroness Vere of Norbiton (Con)
Of course, the Government have a wide range of transport infrastructure projects that we are taking forward under the guise of building back better. The noble Baroness is right, in that there is always a balance: in the future, when aircraft emit less, it may be absolutely acceptable to take as many flights as one likes. Sometimes, we are told we should not fly, but, of course, that is just because of the carbon. Actually, flying is a very good, quick and efficient way of getting from A to B.
Lord Browne of Ladyton (Lab) [V]
My Lords, the airports NPS proceeds on the stated basis that:
“Aviation demand is likely to increase significantly between now and 2050”,
and that
“Any increase in carbon emissions alone is not a reason to refuse development consent”.
However, the sixth carbon budget report says quite specifically that there can be no airport expansion unless emissions from flights can be reduced to compensate. Does that not require the Government to revisit and revise the NPS, considering this new conditionality, which they have accepted?
Baroness Vere of Norbiton (Con)
As I have said previously, the Government are extremely grateful for the expert advice provided by the climate change committee. We are considering all the recommendations in its report and we will report back shortly.
Holidays: Cancellations
Lord Browne of Ladyton Excerpts(4 years, 1 month ago)
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Baroness Vere of Norbiton (Con)
The Government have very solid arrangements for international travel, which is why we introduced international travel corridors to enable some travellers to go abroad, whether for business or social reasons, without needing to quarantine on the way home. Travel advice and the exemptions list can change at very short notice, and consumers must be aware of that.
Lord Browne of Ladyton (Lab) [V]
My Lords, on 28 July, at col. 114 of Hansard, the Minister advised those travelling that they could mitigate their risks with travel insurance and that they should check it out, and that the Government were in ongoing discussions with the insurance industry about pandemic-related insurance cover. Today, the Which? website identifies only one travel insurance option offering cover for the cancellation of a holiday because of Covid-19 restrictions, and then only in very limited circumstances. What progress have the Government made with the insurance industry, so that the Minister’s advice in that regard is of any value?
Baroness Vere of Norbiton (Con)
As the noble Lord will be well aware, the insurance industry is a commercial enterprise and will offer travel insurance to consumers where it is able to do so at a reasonable cost and undertaking a reasonable amount of risk. Of course, conversations with the travel industry and the travel insurance industry are ongoing.
Spain: Travel
Lord Browne of Ladyton Excerpts(4 years, 3 months ago)
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Baroness Vere of Norbiton [V]
My Lords, the Government have been absolutely clear: urgent support is available for those who need it. That may be the new-style employment and support allowance or it may be universal credit, depending on the individual circumstances. I will happily write to the noble Baroness with more detail of both those schemes. My letter to her was not intended to be comprehensive, but it set out many of the things that we are doing.
Lord Browne of Ladyton (Lab) [V]
My Lords, this is a disaster for the self-employed and owners of small businesses. On Sunday, Dominic Raab told anyone who risked losing money to look at their insurance, among other things. Since March, there has been a general market failure in the provision of cover for all pandemic risk, including business interruption. There is no insurance policy available that covers loss of income in these circumstances. The Government are aware of this and, in response to Written Questions, have undertaken to engage with the insurance sector on this issue “in due course”. “In due course” is already too late. Will the Government undertake to engage with the sector, which wants to talk to them about this, now?
Baroness Vere of Norbiton [V]
The noble Lord is quite right that the impact of the pandemic has been very significant both on those who are employed by companies and on those who are self-employed. We are doing what we can to offer support where needed. As for engaging with the insurance industry, that work is ongoing.
Thomas Cook
Lord Browne of Ladyton Excerpts(5 years, 1 month ago)
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Lord Browne of Ladyton (Lab)
My Lords, in response to the part of my noble friend Lord Rosser’s question about the cost to the UK taxpayer of this business going into administration, the Minister answered with reference only to the repatriation costs. I might say, and I will support this in a moment, that she grossly underestimates them by just doubling the Monarch costs.
What is the cost to the UK taxpayer of all the implications of the administration of this business, including the cost to public funds? ATOL is a public fund put together by the accumulation of levies on holidaymakers and travellers, as are the CAA’s funds that are being used here. Only yesterday there was an estimate in the Financial Times of the cost to the ATOL fund alone of £600 million. It is there in detail, explaining that because of the EU directive the fund will have to pay back to the people who have booked holidays in advance the cost of those holidays that they are not now going to get, and it will take it months to do it.
How much tax does Thomas Cook owe the Government in air passenger duty, VAT and other taxation that it has collected? How much will all these thousands of people who are going to be made redundant cost the Government in benefits, retraining and support? What are the implications for the pension funds? Surely the Ministers who made this decision not to give £250 million to Thomas Cook in the short term had an estimate of these figures before them. What was that estimate? How much was this going to cost the Government if they went down the road that they went down, with the inevitable result that this business went into administration?
Baroness Vere of Norbiton
My Lords, I fear that the noble Lord is making the wrong comparison there. On the £250 million, we made the assessment that, even had we been able to provide the guarantee of funds that was requested, the company did not have a viable future. It was severely in debt and losing a significant amount of money. We would have been in the same situation in the future but £250 million poorer. Also, it is not the Government’s usual position to prop up private companies that have got themselves into trouble.
When it comes to the total costs of the failure—there are many, and we understand that—some are clearer than others at this time. On repatriation, for example, I did not just double the Monarch cost—I said that this repatriation is twice the size of Monarch’s, but it is also more complicated. However, we are mitigating that by having conversations with a third party. We learned from the Monarch case that some people do not behave in the way you would expect: in that case, a significant portion of people chose not to be repatriated using the Government. They found other ways of getting home—we do not know how, but they did not arrive for their flights.
Estimating the costs is extremely difficult. It is up to us to keep the costs as low as possible, but ATOL customers who have future bookings can claim from ATOL—that fund is underwritten by the Government. Again, we cannot be absolutely clear about the cost because it will depend on how many people end up claiming, but every person who applies to ATOL to get a refund for their booking will receive it—and that is right.
Groceries Code Adjudicator Bill [HL]
Lord Browne of Ladyton Excerpts(12 years, 4 months ago)
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Lord Browne of Ladyton
My Lords, I apologise that I was unable to contribute to the Second Reading debate on this important piece of legislation as I was unavailable on that date. I have paid considerable attention to this for one very good reason: for 14 years or thereabouts, I represented the greatest concentration of dairy farmers in any constituency in Scotland. For all that time, I watched them battle, with great frustration and an unequal contracting position, as their livelihoods were strained. I have significant sympathy with the objectives of the Bill and, indeed, of the groceries code.
I hope that this amendment will not detain the Committee for very long; it is not my intention for that to happen, but we all know what happens to the best-laid plans of mice and men. In responding to the Second Reading debate, the Minister said:
“The Bill is one of the pilot plain English Bills that are intended to be easier for everyone to understand”.—[Official Report, 22/5/12; col. 761.]
As a fan of plain English, I believe that to a degree that objective has been achieved in this Bill. Noble Lords will be relieved to know that it is not my intention in the course of the Bill’s consideration to go through every individual part of it in order to see whether they meet the test.
The Bill begins with a statement which, in my view, is a challenge to the objective of plain English. This is an opportunity for the Committee to explore the thinking behind some of the decisions that have been made in the way in which the Bill has been drafted. It cannot be the case in the future that plain English Bills will be presented to Parliament and that no consideration will be given to the way in which they are drafted.
In 1998, famously, the late Donald Dewar began the Second Reading debate of the Scotland Bill by saying that,
“there shall be a Scottish Parliament”. —[Official Report, Commons, 12/1/98; col. 25.]
In this case, the Government have chosen, in similar circumstances, to say:
“There is to be a Groceries Code Adjudicator”.
The purpose of the amendment is merely to explore the thinking behind the construction of the verb that is deployed here. Candidly, I know many people who speak plain English—some plainer than others. I know of nobody who uses this construction in ordinary conversation. I know many people who say, “There will be a bus along in a minute” but very few who say, “There is to be a bus along in a minute”. If we are to meet the objective of plain English—language which is understandable and not unnecessarily legalistic—it has to meet at least two objectives. It has to relate to the plain language that speakers speak and not be unnecessarily grandiose. Secondly, it needs to meet the test of consistency. As a lawyer, I can see that at some time in the future, there will be some money to be made for lawyers in saying that there is a difference between the words that have been deployed at the beginning of this particular Bill and the words that have been deployed at the beginning of others. There was a reason behind this. Let us explore that reason.
There is seriousness to this point. It would be helpful to know why the Government chose this particular construction. It may have been presented by a draftsman and accepted by the Executive. I understand that, and I have been in that position, but why is this construction preferable to, “There will be a Groceries Code Adjudicator”, or indeed, “There shall be a Groceries Code Adjudicator”?
The Earl of Sandwich
I hope the Minister and also the noble Lord, Lord Browne, will forgive my intervention in the early part of the Bill.
I want to make a slightly more general point, since we are close to the Title of the Bill. There is something missing in the early part of the Bill: that is, the link with the original Groceries Supply Code of Practice. I know that this will come up again, but I want to raise it right at the beginning. The Competition Commission uses the important phrase about stopping,
“the transfer of excessive risks and unexpected costs”,
by retailers on suppliers, and encouraging compliance. To make that point, I have put down an amendment to Clause 15. I apologise that I missed putting an amendment down to the Long Title. I hope the Minister will find a few minutes, or a few sentences, to answer that point somewhere in the course of the debate.
Baroness Wilcox
It might. I wonder if the noble Lord, Lord Browne, would be kind enough to let me take this away and return. I ask him to withdraw his amendment.
Lord Browne of Ladyton
My Lords, I will be more than content to withdraw my amendment, and to go away and reflect on the response of the noble Baroness to my rather small point. I am surprised, I have to say, at the nature of the response, given that I know that at least one piece of legislation has been passed by this House which includes the phrase “there shall be” in its first sentence. I suspect that there are many others, but I shall have to go and do some research now. If it was a prediction that the legislation fulfilled, perhaps that is the proper construction; I am not entirely sure. However, we should not detain the Committee with this point, given that we all need to go away and reflect on it. I am happy to withdraw my amendment, but I give the noble Baroness notice that I am not entirely persuaded by the response she deployed. This is not the most important issue that the Committee will consider this afternoon, but it is important that there should be consistency in legislation. I beg leave to withdraw the amendment.
Lord Browne of Ladyton
My Lords, the purpose of this group of amendments is twofold. It is, first, to explore the nature of the office that is to be created by this legislation and, secondly, to make an important constitutional point about the appropriateness of appointing an individual to an office of this nature in the current constitutional environment as set out in the Bill.
I start my argument by referring to the comments some minutes ago of the noble Viscount, Lord Eccles, when he referred to the recommendation of the Competition Commission for the appointment of an ombudsman. He said that this post was something quite different from an ombudsman, and I respectfully agree with him. I hesitate to do this, but I point out to my noble friend Lord Knight that it is not helpful to refer to this office as the office of a referee. It is something quite different from a referee, too. In fact, when one researches and considers carefully the powers that are being vested in the office of the adjudicator of the groceries code—I direct noble Lords’ attention to the Second Reading debate of 22 May at column 275 of the Official Report, when the noble Baroness set out quite extensively the roles of the adjudicator—one finds that at the heart of the many roles that the adjudicator will have, over and above all those other roles, is the role of investigator, arbitrator and the imposer of penalties. I dare say that if I were to ask most people with experience of life, “In whom do we invest those roles?”, they would say, “We invest those roles in a judge”. That is probably why this particular office has been called the office of the adjudicator. Respectfully, this is, if not a judicial position, a quasi-judicial position. There is no doubt that we are vesting in an individual the sorts of powers that we would expect a judge or magistrate, somebody who investigated and adjudicated on conflicts, to have. In normal parlance, such a person exercises a judicial role.
Since 3 April 2006, as a consequence of the Constitutional Reform Act 2005, all persons appointed to judicial roles in England and Wales—all those listed in Schedule 14 to that Act—are selected for them, if not appointed to them, by the Judicial Appointments Commission. That is simply because Parliament took the view that in the modern world it was inappropriate for persons to be appointed to such roles unless it was done independently of the Executive.
Consequently, I have proposed amendments that deploy those resources. In response, noble Lords may say, “This is something quite different from those judicial appointments listed in Schedule 14 to the Act”. They would be partly right, but the Judicial Appointments Commission goes much beyond what we would traditionally refer to as a judge and selects people for roles in a very wide range of tribunals that cover social care to taxation and farming to employment. I do not intend to be exhaustive in my arguments, but those who wish to do so can look at Schedule 14 and see the extensive list of roles in which people make judgments where we now expect there to be an element of independence.
I am reinforced in this view because everything that I have read in preparation for the debates in Committee makes constant reference to the necessity for the adjudicator to be independent. In my view, it is crucial for a person who exercises these sorts of powers to be independent of the Executive, to the extent that there should be some significant independent element in the selection of the person who is suitable for that role. I would argue that that is the constitutional position in England and Wales and that it has been since 3 April 2006, as a result of the 2005 Act.
On the basis of that analysis, I have proposed amendments that would ensure that the appointment by the Secretary of State can only be on the recommendation of the Judicial Appointments Commission. In that way, the independence of the adjudicator will be reinforced, if not preserved. Consequently, the adjudicator and not the Secretary of State will appoint the deputy adjudicator. Given the nature of this role, the Secretary of State would not be able to dismiss the adjudicator or the deputy adjudicator without the consent of the Lord Chief Justice. Certainly, it would not be just in his or her own judgment. Finally, in order to make it clear that this role can be held only by a person who is above reproach, I have added to the requirements of the person who holds this role that he or she should not have been convicted of an offence.
I have very little to add to my argument. With respect, I think that it is clear that independence requires this in the modern world. If the Minister disagrees with that analysis, I invite her to explain why this role, with all these powers, is significantly different from that of a judge or a justice and why it is appropriate to reverse the trend of constitutional change in this country in this way and in this legislation.
Lord Borrie
My Lords, I am reluctant to disagree somewhat with my noble friend, who has argued so eloquently that this is a judicial appointment, but I do not think that it is. It may be close to it, and there is nothing unusual in certain positions being on the borderline of administrative and judicial. However, in examining the role of the adjudicator, we have heard the noble Viscount, Lord Eccles, and others mention that, when this was first introduced, the title given to the man or woman in charge was “ombudsman”. There seems to be general agreement that that was not suitable, so we came to “adjudicator”.
Because we have adopted—or the Government have adopted—“adjudicator”, I strongly sympathise with my noble friend Lord Browne, because “adjudicator” suggests that there are at least two sides and that this is a judicial role. However, one thing that I have noticed, looking at the detail of what the adjudicator can and cannot do, is that he cannot settle or determine or arbitrate on a civil claim made by a particular supplier and a particular supermarket. It is of course typical for a judge, or indeed an arbitrator, to determine civil disputes of that kind, yet the detail of this Bill tells us that this is something that cannot be done by the adjudicator. The word “adjudicator” may not be entirely appropriate and may have led the noble Lord, Lord Browne, along a false path.
Lord Browne of Ladyton
Will my noble friend do two things for me before he sits down? First, will he address with the same certainty the issue of whether this is a quasi-judicial role? With respect, it is not fatal to my argument that this role does not meet the high test for a judicial role that my noble friend has—arbitrarily, I may say—imposed on us. Secondly, will he also address the ability or potential ability of this adjudicator to impose financial penalties? Does that cause him to reflect on whether this is the sort of role that he is describing?
Lord Borrie
With respect to my noble friend, he has not, in his question to me, dealt with the fundamental point that I raised, which is that the adjudicator is unable to determine civil claims between suppliers and supermarkets. The adjudicator has to go to a separate civil claim in the civil courts, or through arbitration. That is fundamental in my argument that this is not a judicial appointment and that involvement of the Judicial Appointments Commission would be inappropriate.
“Quasi-judicial” is a fascinating phrase, and we heard it a lot in the Leveson inquiry. It is amazing how Ministers have got accustomed to defining and knowing what quasi-judicial is, even though they did not always pronounce it the same way. It was a quasi-judicial role that the Minister had in determining whether the bid by Mr Murdoch for BSkyB should go to the Competition Commission. That was determined by everybody who spoke at the Leveson inquiry to be quasi-judicial. In answer to the noble Lord, Lord Browne, I have already admitted that the job of the adjudicator in this Bill is close to being judicial and, if it is close to being judicial, it is certainly close to being quasi-judicial.
The noble Lord, Lord Browne will know that the Judicial Appointments Commission has nothing whatever to do with Ministers and others who have quasi-judicial functions. It does not have that role. The Government must have found it difficult to know whether to call this person an ombudsman, an adjudicator or something else. He or she will be a regulator with powers to fine, like other regulators that are set out in statute. That is what is intended here. Some of us are in favour of this being in the Bill, whereas the Government want it only to follow a new regulation. Be that as it may, the adjudicator is closer to being a regulator than a High Court judge.
Lord Browne of Ladyton
My noble friend set a test for me that he knew I must fail, because the adjudicator does not have the power to impose a decision on a civil dispute—and because I failed this entirely arbitrary test, which he imposed with his customary skill, my argument was apparently nullified. Perhaps I may engage him by referring to another area of life in which there is a separation of powers. We have settled health and safety legislation in this country. Where there is a prosecution for breach of health and safety regulation before a criminal court, the court does not have the power to impose civil compensation, because that is not its function. However, it is a judicial process. Of course, another court can impose a civil remedy by awarding compensation for breach of health and safety regulations as an indication of negligence where somebody is injured, but it cannot impose a criminal penalty, because that is not its function. However, both courts have judicial functions. The fact that one court cannot impose its will on the jurisdiction of another does not nullify the fact that they both have judicial functions. Why does that logic not serve me well in this argument?
Lord Borrie
The only thing that I can say is that it has been the deliberate intention of the Government through their drafting of the Bill to deprive the adjudicator and to deprive anybody else except civil courts—in a completely different process—of the ability to determine a civil claim or something like it. As the noble Lord, Lord Browne, has considered this matter very deeply and carefully, there cannot be a lot between us. We are talking about a matter of title or name. Whatever that is, it does not seem suitable for the Judicial Appointments Commission to be involved in the appointment of this individual in a narrow field of the grocery trade, with the fairly narrow role provided by the Bill.
Viscount Eccles
Perhaps I could ask the noble Lord, Lord Browne, whether we have any other adjudicators.
Lord Browne of Ladyton
The honest answer to the noble Viscount is that we have many adjudicators. We call them judges. However, I am not aware—although the Minister may be—of the use of this term in another set of circumstances that could be instructive to the Committee in analysing the process. I have no doubt that the noble Baroness will quickly leap on the alibi granted to her by the noble Lord, Lord Borrie, that the drafters of the Bill unfortunately came up with this unhelpful title. My argument is that, if it walks like a duck and quacks like a duck, it is a duck. When they created the position and wondered what to call it, they must have said, “It is an adjudicator, so let us call it that”, and they were right.
Lord Knight of Weymouth
Before my noble friend Lord Grantchester responds, I will say very briefly to the noble Viscount, Lord Eccles, that there is a schools admissions adjudicator who adjudicates the schools admissions code.
Baroness Wilcox
My Lords, these amendments concern the independence of the adjudicator and, in particular, how this may be safeguarded through the appointment and dismissal processes. I fully agree that the independence of the adjudicator is critically important to the successful operation of the role.
I have just been passed a note for the noble Lords, Lord Browne and Lord Borrie, on the name “adjudicator”, which I thought might be helpful. The term has been chosen because an ombudsman must deal with consumers rather than businesses. That is the answer to that one.
Before addressing the amendments, I first reassure noble Lords that the Bill provides the adjudicator with full operational independence. There is no question of the Secretary of State telling the adjudicator what to do, who to investigate or what the sanctions should be. It is, however, normal practice that public appointments should be made by Ministers, in accordance with the standard rules and procedures on public appointments. In addressing these amendments I intend to draw parallels with other public bodies in the field of competition.
On the amendments of the noble Lord, Lord Browne of Ladyton, the adjudicator will not be a judge and it is therefore not necessary to involve the Judicial Appointments Commission. Similarly, the panel members of the Competition Commission, who might also be considered to have a similar quasi-judicial role in their rulings on appeals from sectoral regulators, are not appointed or recommended by the Judicial Appointments Commission. It is similarly appropriate that the Secretary of State should appoint both the adjudicator and, if there is one, deputy adjudicator, as both are public appointments. In a similar way, the Secretary of State currently appoints both the chair and the chief executive of the Office of Fair Trading. The Office of Fair Trading can, of course, also impose financial penalties.
On dismissal, the Secretary of State may dismiss the adjudicator only if they are satisfied that he or she is unable, unwilling or unfit to perform his or her functions. This is not a judgment that would be made lightly and could be subject to judicial review if made incorrectly. Given these safeguards, I do not consider it necessary to require the Lord Chief Justice’s approval, nor to make specific provision for the circumstances of criminal conviction, which the Secretary of State could, in any case, take into account when judging whether the person was appropriate for the role.
Finally, on the amendment tabled by the noble Lords, Lord Knight of Weymouth and Lord Grantchester, I make two points. First, while the Government support the principle of suitable parliamentary oversight of public servants, they believe that pre-appointment hearings by Select Committees are only for those roles where it is vital that the post’s independence from government or its importance to the public is of the highest importance. It does not seem clear that the adjudicator, though very important to the groceries sector, would fall within this category.
Secondly, even were the post of adjudicator such a post, it is also not general practice for Select Committee oversight to be set out in primary legislation, but rather for it to be decided by the Secretary of State responsible. I hope that that is helpful and, therefore, ask the noble Lord to withdraw his amendment.
Lord Browne of Ladyton
I am grateful to the Minister for dealing so comprehensively with the constituent elements of my argument. I am not entirely persuaded by all her arguments. I read that the distinction between an ombudsman and an adjudicator is that an ombudsman deals with only consumers and therefore cannot regulate a set of circumstances in which consumers are not involved. I am not entirely sure whether that argument is sustainable but it has been deployed in earlier debates on this legislation for justifying the move from the recommendation for an ombudsman in relation to this role. When I read it in the past I was not convinced and, with respect to the noble Baroness, I am not convinced now. However, I realise that that is the Government’s position, which I respect.
I am grateful to my noble friend Lord Borrie for his intervention and I am enormously respectful of his vast experience in the area of consumer protection and competition. I thought that he got almost to the point where he agreed with me but could not break through the cigarette paper that was between us—which I have to say he put there. I am also grateful to him that he thought that there was something in my argument.
There is nothing implicit in any of these arguments that is in any sense critical of the way in which I expect the Secretary of State to behave. I expect the Secretary of State of whatever party is in government in this country to behave in an entirely appropriate way and not to make capricious decisions. I accept also that it may be possible to find other examples—as there were in the noble Baroness’s brief—of similar types of appointment that have not been considered to be judicial appointments or have required the intervention of the Judicial Appointments Commission in the past. However—I will research this as I cannot be certain about it—I suspect that none of those roles was created by statute since the creation of the Judicial Appointments Commission in 2005. In view of the roles held in the OFT in the post-2005 constitutionally changed environment, I would argue that it would be inappropriate to appoint someone with those sorts of powers without the element of independence that we imposed on the nature of these appointments by passing that legislation.
I am concerned that perhaps we treat constitutional change now as being of the moment and that we revert to type thereafter. But the 2005 Act was a significant step in creating an element of independence in the role of people who exercise these types of functions. We extended it well beyond what people would normally think of as judges, for instance into tribunals that cover a significant area of public life. I do not believe that competition should be immune from that restraint as regards the constitution. However, despite the fact that I believe quite strongly in this argument, at this stage I am content to withdraw the amendment—before I do so I will give way to my noble friend.
Lord Knight of Weymouth
Before my noble friend withdraws his amendment, I ask his indulgence so that I can come back to the Minister on what she said in respect of Select Committees being involved in a confirmation hearing. I refer her to the coalition agreement, which stated:
“We will strengthen the powers of select committees to scrutinise major public appointments”.
I turn to the Conservative Party manifesto for 2010, which stated that it would,
“give Select Committees the right to hold confirmation hearings for major public appointments, including the heads of quangos”.
The Liberal Democrat manifesto stated that the party would:
“Strengthen the House of Commons to increase accountability. We will increase Parliamentary scrutiny of the budget and of government appointments and give Parliament control over its own agenda so that all bills leaving the Commons have been fully debated”.
I now refer the noble Baroness to some of the appointments that have been subject to pre-appointment hearings. From her own department, hearings were held for the chair of the Gas and Electricity Markets Authority, the chair of Ofcom, the chair of the Competition Commission, the chair of the Office of Fair Trading and the chair of the Postal Services Commission. She may argue that those are more major appointments than that of the adjudicator, but we think that it is important, otherwise we would not be here. Does she think that the post of adjudicator is more important than the chair of Oftenant, which is a quango from the Department for Communities and Local Government? I might also mention the chair of the Agricultural Wages Board, the chair of the Gangmasters Licensing Authority and the chairs of the research councils. That is a list of quangos, some of which are now being abolished. However, these are equivalent appointments and it is clearly the policy of her party and the coalition to give Parliament more scrutiny of such appointments. I do not understand why there is a problem.
Lord Browne of Ladyton
I am grateful to my noble friend for expanding my peroration quite significantly. The only point I had left was to refer to the necessity for some element of independence in this appointment. At some stage in Committee we will consider the absence of independence with regard to the dismissal or abolition of this role, which is a wrong step for many reasons, not the least of which is the role of Parliament. It seems to me that as a society we were on a journey towards recognising the need for an element of independence in the appointment of people who exercise certain powers. With respect to my noble friend Lord Borrie, it is not the narrowness of the issue but the nature of the powers that is important. We should be very wary of giving powers of this sort to individuals to exercise in our society without going through the appropriate processes to ensure utter independence from the Executive. That means not just factual independence but independence in law, and we must be consistent so that people go through the same process of selection that has been imposed on others to ensure that they meet the criteria that have been created.
In the mean time, I will study what the noble Baroness said and research whether any of the examples she gave predate the 2005 Act, with the distinct possibility that I will return to this issue at a later stage. I beg leave to withdraw the amendment.
“( ) the Scottish Government;( ) the Welsh Assembly Government;( ) the Northern Ireland Executive; and”
Lord Browne of Ladyton
My Lords, I do not seek to dominate the debates in this Committee and I hope that my amendments will soon give way to others. This is a simple but timeless point. In these amendments I seek to ensure that the devolved Executives are included in both the reporting of the accounting process and in the reporting process of this particular office or of the adjudicator.
I expect, and will anticipate in my argument, that the response to that would have been that this is not a devolved matter; it is a reserved matter and the proper accountabilities are therefore restricted to the organs of reserved, UK government. I probably would have deployed that argument when I was a Minister myself. However, only yesterday, those of us who believe in the union came together politically in a campaign called Better Together to persuade the people of Scotland that we are better together than separate. In my political life, this is the most important decision that the people of Scotland will make. Part of the reason why those who seek to divide us are confident that they will be able to persuade the people of Scotland is that they conduct the politics of grievance constantly. They seek issues on which Scotland is treated differently or with disrespect. They say that those who allowed Scotland, Wales and Northern Ireland a degree of devolution did so reluctantly for political convenience, did not actually mean it and operate the rules in a nit-picking fashion which does not respect our institutions or those which they have set up.
Baroness Wilcox
My Lords, I fully recognise the interests of the devolved Administrations in this Bill: of the noble Duke, the Duke of Montrose, for Scotland and the noble Baroness, Lady Randerson, for Wales.
The Government have kept in close contact with the devolved Administrations through the development of both the policy and the legislation, and we are grateful for the strong support that they have given to this Bill. Officials in my department have discussed this with representatives of all the devolved Administrations on multiple occasions, and continue to do so. We would of course expect the adjudicator to informally interact with the devolved Administrations in the same way.
However, formally speaking, the groceries code is a non-devolved issue, as it is a matter of competition law. The adjudicator therefore has no formal responsibilities to the devolved Administrations. Given this fact, a statutory duty to report to such bodies would therefore be inappropriate, and could make the adjudicator’s role less clear. Additionally, it might suggest that the devolved Administrations had responsibility for oversight of the adjudicator, when in fact they do not have powers to control either the code or the adjudicator. However, as I have said, we have worked and will continue to work very closely with the devolved Administrations. It is in all our interests that we do so.
If I may, I will discuss the issue regarding the Competition and Markets Authority when we discuss the seventh group of amendments. I therefore ask the noble Lord to withdraw his amendment.
Lord Browne of Ladyton
My Lords, I confess to being disappointed. It would appear that we have resorted to type in relation to the legalities of these issues. I am utterly schooled in making the arguments for them. However, with respect to the noble Baroness, she reassures me to a significant degree when she recounts the degree of interaction and co-operation that there has been between the devolved Administrations and the UK Government. I am reassured by that and would expect nothing less. She suggested that informally the adjudicator will be encouraged to continue that level of co-operation. To that degree she reassured me.
However, the noble Baroness disappoints me because it would appear that in the structures of Whitehall we have not got beyond the strict legalities of these arguments and cannot see how damaging this strict approach is to relations across the union. We need to be much more mature in the way in which we approach these issues, and we need to be much more political in not creating opportunities for grievance or for discussions that are perceived to be beyond power but which create an argument for more power. For example, if the Welsh Assembly sensibly had a debate about the importance of a supermarket ombudsman, in Scotland that would lead almost inevitably to an argument that the Scottish Parliament should have had the power to appoint one because the UK Government were taking a long time to do it. We would then get into a confrontation about the constitution that would be utterly unnecessary if we had an officer who was instructed by the legislation that we passed to set up his office to report to those institutions.
I confidently predict that if the adjudicator role beds in, at some stage a committee of the Scottish Parliament, Welsh Assembly or Northern Ireland Assembly will say, “We are conducting an inquiry into the economic opportunities that relate to a particular part of our society or economy. This officer has a role to play in that. We would like him to come and give evidence to our committee”. I also confidently predict that the occupier of this role will go, that the constitution will not melt down and that no great affront will be done to the divisions between devolved and reserved powers. I hope that at some stage we can come off these platforms where we tell the people of the United Kingdom that we are better together and that we respect each other and the settlement that we have, and drive that attitude down through Whitehall so that departments do not define themselves by whether they have reserved or devolved powers.
This is a disappointing response to the issue. I understand why legally it is being done. I am sure that the noble Baroness is aware of the possibility that while she is still in her office, somebody will come to her and say, “This does not go far enough. There is insufficient power for Scotland and it is disrespectful to the Scottish people”. I hope that those who provided her with the argument to defeat my simple amendment can provide her with the argument to deal with that when she has to go to Edinburgh to make the argument. However, I accept the inevitable. We are where we are. In these circumstances, there is nothing else I can do but beg leave to withdraw the amendment.
“(2) The Adjudicator may, in particular—
(a) enter into contracts;(b) with the consent of the Secretary of State borrow money;(c) acquire and dispose of land; and(d) obtain advice or assistance from any person.(3) The Adjudicator may remunerate any person from whom he or she obtains advice or assistance.”
Lord Browne of Ladyton
My Lords, this is a probing amendment. This adjudicator is a creature of statute. He can have only the powers that are given to him by statute. Paragraph 8 of Schedule 1 states:
“The Adjudicator may pay to or in respect of the person holding office as the Adjudicator or the Deputy Adjudicator … remuneration … allowances … sums by way of or in respect of pensions”.
It appears to me that in this statute he deliberately is not given certain other powers that one would expect, even if he is to have a “small, agile staff”, as the noble Baroness described his office at Second Reading. Are we to infer from the absence of those powers that others will exercise those necessary powers to create the small infrastructure around the adjudicator that will be necessary? Or are we to infer that there is an expectation that later provisions in this Bill will be enacted before it becomes necessary for the adjudicator to have these powers and that the office will no longer exist? Or is it the plan to embed this office in another existing administration or organisation? Has a decision been made as to what that organisation will be? If so, is the noble Baroness in a position to tell the Committee what organisation that will be and what powers it will have in order to support this person, bearing in mind that the adjudicator is required to carry out investigations?
The adjudicator may have to conduct arbitrations himself or herself. He or she may also have to appoint others to conduct arbitrations and, although we hope not, in the future may have to impose penalties, some of which may not be of a financial nature but some of which may be of a financial nature. He or she may have to account for such money and do all sorts of things—I do not need to go into the detail. Most noble Lords will have an idea of what these sorts of offices will look like, even if they are small and agile. I repeat that this adjudicator is a creature of statute. If he or she does not have these powers, they will not be able to do that. This amendment probes the intention of the Government in relation to the administration that will necessarily support the role of the adjudicator. I beg to move.
Lord Knight of Weymouth
I am grateful to the noble Baroness. It is the “incidental” that would worry me the most were I a levy payer. I will leave it at that because I do not want to labour the point. We need to think about this a little. I know that we may have an amendment later that looks at whether the annual reports should explicitly include the cost of administration so that that is transparent and clear to levy payers as a way of ensuring that these “incidental” expenses are not excessive. I think that the point has been made.
Lord Browne of Ladyton
The noble Baroness asked whether I am reassured. I am. How could I not be, given her explanation that what lay behind “incidental” powers is now on the record and it has been made clear that the adjudicator will have the powers necessary to carry out the functions that will support the role?
I do not expect the noble Baroness to answer this question, but she may reflect upon it: if paragraph 16 is all-encompassing, what is the purpose of paragraph 8? Why is it necessary for paragraph 8 to be in this schedule at all to deal with the issue of the remuneration of the adjudicator and deputy adjudicator if incidental powers cover all those fundamental things? I was misled by the presence of paragraph 8, thinking that “incidental” meant, in plain English, what I would consider to be incidental.
The powers that I put in the amendment are pretty fundamental to the office of the adjudicator. Given that this is the money of those who will support the role and given that, as my noble friend Lord Knight articulated, there is an argument for spelling out in plain English the powers that the Government expect the adjudicator to operate or use, particularly if those powers are relevant to the spending of other people’s money, it would be more helpful to spell out the powers that an adjudicator has for spending money than to give an office of this nature incidental powers that are so all-encompassing against a provision such as paragraph 8.
That being said, the matter is now all on the record. It is very clear that there is some restriction on these incidental powers as well as on the exponential expansion of them. To that extent, I am grateful to the noble Baroness. In those circumstances and since the amendment is redundant, I can do nothing but beg leave to withdraw it.
Lord Browne of Ladyton
My Lords, noble Lords will be pleased to hear that I will not be insisting on these amendments. They were tabled for a specific reason, but that has actually been addressed in debate thus far. The answer to them is clear, because they anticipate the Enterprise and Regulatory Reform Bill, which is of course not yet enacted. They are therefore deeply premature, but were intended to initiate another debate, exploring what powers and relationships the adjudicator will have with these offices, but we have already had that debate.
I am conscious, however, because I argued that my amendments should be grouped with others in order to minimise the time, that if I do not move it that will imperil the rest of the grouping. I do not intend to insist upon my amendments because I understand what the Minister’s argument would be. I beg to move.
Lord Knight of Weymouth
My Lords, I will speak to Amendments 12, 96, 124 in my name and that of my noble friend Lord Grantchester, which are about the powers to abolish the adjudicator. It is always a little worrying when a Government are thinking about the manner in which they will dispose of a new office before it is even established. Clearly, this is what the Government have done. Clause 16 provides both for the transfer of the adjudicator’s functions to another public body and the outright abolition of the adjudicator, something which one or two Members of this Committee would, I am sure, welcome.
The fact that the Government have made such specific provisions rather implies that they already have a good idea about what they expect to happen to the adjudicator after a couple of years. A more cynical person might infer from this that the Government have calculated that they can benefit from a few good headlines now in setting it up, and then quietly merge the office with the Office of Fair Trading, or the new Competition and Markets Authority a couple of years down the line. That would probably feel like a very efficient win-win to the Government; but this is obviously a highly cynical view. The Government could even quietly get rid of the thing altogether with a simple Motion in Parliament.
We have heard how this issue has exercised suppliers to supermarkets for some time. It has been the subject of campaigns for a number of years. I do not believe that the affirmative resolution is in this instance a high enough threshold for Parliament to allow the Secretary of State to abolish this public body so easily. The reason for this goes to the heart of what the adjudicator is there to achieve, and to the arguments on the powers which the adjudicator should have available. In a sense, if the adjudicator never initiates a single investigation or uses a single one of his or her powers, this could just as easily indicate success as it could do failure of their functions. The reason for both the code and the adjudicator is not to catch retailers out so much as to compel good behaviour and to make clear where the boundaries lie between competitive and anti-competitive practice. The presence of the adjudicator alone, especially an adjudicator with teeth, such as strong powers to fine, should, we hope, be enough of a deterrent to ensure that retailers never stray beyond the rules of good practice set out by the code. If a referee—or, if it pleases my noble friend Lord Browne of Ladyton, a quasi-referee—goes through an entire football match without giving a single booking, you would applaud it as a success. You do not question the future need for the referee.
It is therefore worrying that the Government have included a mechanism for the adjudicator’s abolition without giving any indication of how they intend to measure the continued value of an adjudicator. At the very least, the bar for abolition should be set higher than it currently is within the Bill. Our amendments 12, 96 and 124 would require the Government to follow exactly the same procedures as are set out in the Public Bodies Bill model of a super-affirmative order in order to abolish the office. Indeed, in proposing these amendments, we are seeking some consistency from the Government.
Baroness Wilcox
Perhaps if I go back and continue for two paragraphs, we might find something a bit more helpful. I will go back again to say that the Delegated Powers and Regulatory Reform Committee examined the Bill. It carefully considered whether the procedures provided by the Bill were appropriate, and explicitly considered whether some measures should be delegated at all. The committee concluded that the procedures were appropriate and did not recommend the replacement of the affirmative procedure with the super-affirmative procedure at any point.
On the abolition of the adjudicator, the committee stated:
“We considered whether this goes far enough and whether the policy and repeal of the Act in these circumstances should be effected by another Bill. But we are satisfied that the affirmative procedure is appropriate given the overall purpose of the Bill”.
On transfer of functions, the committee said:
“An order under clause 16(1) can transfer all or some of the Adjudicator’s functions to another public body (undefined). The power is balanced by the affirmative procedure; and the Adjudicator’s functions are specific under the Bill. We are satisfied with this approach”.
Abolition and transfer of functions are major steps that should be subject to the super-affirmative procedure. The Secretary of State can abolish the adjudicator only for being ineffective or unnecessary, under the clauses referred to by noble Lords, following one of the triennial reviews. These reviews require full consultation. Transfer of functions can be done only after consideration of whether it will increase efficiency, effectiveness and economy, while ensuring appropriate accountability to Ministers.
This Committee’s job is to carefully scrutinise delegated powers and to ensure that the appropriate procedures are chosen. If the committee had recommended changes to the Bill, we would have considered them extremely carefully, but it said that the procedures were satisfactory.
As I said at the beginning, one must ensure that the degree of scrutiny is proportionate to the powers involved. That is why it would be absolutely wrong, for example, for the negative procedure to be used in these cases. Equally, the super-affirmative procedure is a step too far. With that explanation, I invite the noble Lord to meet me after today and talk this through further. I would be delighted to do so, rather than taking up any more of the Committee’s time at this stage. Therefore I ask the noble Lord to withdraw his amendment.
Lord Browne of Ladyton
My Lords, I look forward to the Government’s amendments at a later stage of the Bill and, although I was slightly premature, the opportunity to claim credit for them. I have to say to the noble Baroness that I would trade that for better consideration of the earlier amendment on the devolved Administrations. If I may crave the indulgence of your Lordships, I realise that when I was responding to that debate I failed to recognise and pay due regard to the contributions of the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Randerson, who graciously supported my amendments and made arguments that created a cross-party consensus on this issue, which the Government were unfortunately immune to. I am grateful to noble Lords for their support and contributions to the debate. I beg leave to withdraw the amendment.
Lord Browne of Ladyton
My Lords, the other amendments in this group are consequential on the first, and challenge the perception that you can invest in one person so many powers without creating an inevitable conflict of interest. As we have already established in our deliberations, the Bill gives the adjudicator many powers in relation to disputes, including arbitrating, investigating and enforcing. It is axiomatic that the adjudicator must carry out these powers with independence and impartiality.
The Bill goes well beyond implying that investigation necessarily gives rise to conflict on the lack of impartiality in a later arbitration—indeed, it creates a mechanism for it. Although the Bill does not compel the adjudicator to appoint an arbitrator, it gives him or her a strong hint that that is what they should do. I know that in the Second Reading debate the noble Baroness was careful not to apply an imperative to that requirement, and suggested that the adjudicator would probably, in such circumstances, appoint someone else to arbitrate.
The reason for the amendment is that although I have some limited experience of arbitration, I cannot, from my research or my consideration of what this adjudicator would do, envisage any set of circumstances in which an arbitration would take place that did not require a prior investigation of some sort. I cannot believe that an adjudicator—particularly one who is expected to arbitrate in a limited number of cases in relation to the groceries code during the course of a year—would decide to use the powers that he or she is constrained to use sparingly, without some preliminary investigation and some conclusion that arbitration was necessary. I cannot conceive of any circumstances in which that argument of impartiality, or lack of it, could not be levelled at an adjudicator when a decision is made to arbitrate.
I am perfectly willing to defer to interventions or contributions to this debate from noble Lords in this Room—and there are many of them—who have much more experience of these sorts of circumstances than I had in my limited exposure to them during my legal career. I cannot think of the circumstances. As a consequence, and given the nature of this legislation, there is a strong implication that the arbitration function should be separate from the role of the adjudicator. Should arbitration be necessary, the adjudicator would be required to appoint a separate arbitrator. Otherwise, what is the point of all the provisions which say that investigations can give rise to the implication of a lack of impartiality? Where did they come from and why are they in the Bill at all, if that is not the logical conclusion?
Baroness Wilcox
The noble Lord, Lord Browne of Ladyton, has raised an important question that it is well worth us examining closely. It is correct that the adjudicator will have two separate main roles. One will involve arbitration, as set out in Clauses 2 and 3 of the Bill. The other will involve investigations and is set out primarily in Clauses 4 to 10 of the Bill. Both roles will be carried out fairly and impartially. The two functions will be distinct from each other and it is important, as the noble Lord, Lord Browne said, that they remain so in order to prevent any conflict of interest.
The noble Lord, Lord Browne, asked whether the adjudicator would always be conflicted. Not necessarily. If arbitration is sought on a subject where the adjudicator has not carried out an investigation or given advice, it is likely that there would be no conflict of interest. We do not consider it inherent in the functions of the adjudicator that he or she will be conflicted in carrying out arbitrations.
It is important to remember that the adjudicator will carry out all their functions fairly and impartially. It is not the role of the adjudicator to act as an advocate for suppliers in carrying out investigations, but it is possible that conflicts will arise in particular cases, and the Bill provides the flexibility to deal with each situation as it arises. The Government consider that Clause 2(1)(b) in particular will help ensure that the distinction between the adjudicator’s arbitration and investigation functions is maintained and that any conflicts of interest are prevented. This clause allows the adjudicator to appoint another person to arbitrate a dispute. The Government envisage that this will be used in cases where a conflict of interest may exist, for example where the adjudicator has previously advised on, or investigated, an issue which is relevant to the dispute. To assist the noble Lord, Lord Browne, the powers to arbitrate are applied at the request of the supplier or retailer. No previous investigation is actually needed.
The adjudicator will be required to act responsibly and will refer any cases where a conflict may arise. However, in cases where there is no conflict of interest, the Government believe that it is sensible to allow the adjudicator to arbitrate. This was envisaged by the Competition Commission in its drafting of the groceries supply order. The adjudicator will, after all, probably be the single most experienced person in the workings of the code.
On the proposed procedure for appointing an arbitrator, I do not consider it necessary to set this out in the Bill. As the Explanatory Notes explain, in England and Wales and Northern Ireland, Section 94 of the Arbitration Act 1996 will broadly apply the provisions of Part 1 of that Act to any arbitrations carried out under the groceries supply order and this Bill. In Scotland, Section 16 of the Arbitration (Scotland) Act 2010 will broadly have a similar effect in applying the Scottish arbitration rules.
The arbitration legislation which will apply to arbitrations by the adjudicator or a person appointed by the adjudicator includes protections on fairness and impartiality, including an ability for parties to apply to the court to remove an arbitrator on those grounds. The adjudicator can of course be expected to satisfy himself or herself either that they can carry out an arbitration themselves fairly and impartially, or that the person they appoint will do so, but there is a safeguard in the arbitration legislation if, for some reason, that does not happen properly.
I wanted to respond to my noble friend Lord Eccles, and have now found the speaking note for that. The groceries supply order has already established a dispute resolution scheme for disputes arising between a particular retailer and a particular direct supplier under the groceries code. The order anticipates that the adjudicator, referred to there as the “ombudsman”, will arbitrate these disputes. This will both ensure that the disputes are arbitrated by an individual with a high level of expertise in the sector and will allow the adjudicator to gain a greater understanding of how the code is operating that will be helpful when carrying out his or her functions, such as providing advice or preparing the annual report. I hope that that is helpful.
I hope that these rather long but, we felt, necessary explanations have proved satisfactory to noble Lords. While I would of course be happy to speak further to the noble Lord, Lord Browne of Ladyton, about this matter, I ask him to withdraw his amendment at this stage.
Lord Browne of Ladyton
My Lords, I am grateful to the noble Viscount, Lord Eccles, for expanding into a potentially fruitful area my further deliberations on this. I had not thought to look at the terms of the code itself, but his drawing my attention to the detail of the provisions on arbitration points to an area at least worthy of consideration: the interaction between existing provisions and those that would be enacted by the Bill, which are less descriptive. It interests me that the Government have chosen to legislate in way that is less clear than the simple provisions in the code, which the noble Viscount read out, composed by the Competition Commission. I will take some time to deliberate on that, but it is an area worth exploring, perhaps at a later date.
I am grateful to the noble Baroness for giving these amendments such careful consideration, and for her words suggesting that they raise an important issue. It is an important issue and I remain to be convinced that it would be appropriate for the adjudicator to embark on arbitration without doing some prior investigation. I suppose that it depends on what one means by “prior investigation”. Given that it is expected that the adjudicator will arbitrate in a very small number of cases over the course of a year, I would expect that he or she would pay great attention to whether it was appropriate to deploy scarce resources on such a request, even if it came from a big retailer.
“( ) The power conferred by this section is not exercisable in relation to information or documents in respect of which a claim to legal professional privilege (in Scotland, to confidentiality of communications) could be maintained in legal proceedings.”
Lord Browne of Ladyton
My Lords, I shall not detain the Committee long with my amendments in this group. They are designed to protect legal professional privilege and confidentiality of communications in Scotland.
I am certain that the noble Baroness will say that legal professional privilege is recognised by common law and is therefore protected by it; that it is not therefore necessary to make legislation to protect it; and that the same applies in Scotland. My question to her, although she may not be able to answer it, is: why do we protect legal professional privilege in some legislation but not in other legislation? For example, in the Counter-Terrorism Act 2008, at paragraph 12 in Part 3 of Schedule 7, we enacted exactly the provision I have sought to include in the Bill. That is only one example and I can find others. I apologise to the noble Baroness for bowling her a bit of googly, even if I am a Scotsman—and we normally cannot play cricket at all, unless we captain the English team. Why on some occasions do we legislate to protect legal professional privilege and on others we do not? If she can answer that at some stage, I will be pleased. I do not intend to press this matter to a Division. I beg to move.
Baroness Wilcox
This is an important issue. It is clearly important that documents subject to legal professional privilege should not be subject to the information-gathering powers that are granted here. I thank the noble Lord, Lord Browne, for raising this point and reassure him that the Bill already gives protection to documents that are subject to legal professional privilege, on the basis of the general rule about legal professional privilege in civil proceedings. Because the enforcement mechanism in Schedule 2 and Clause 3 is via civil proceedings, the outcome is that legal professional privilege cannot be overridden.
I can say that confidently because legal professional privilege can be overridden only by express words or necessary implication. That is precisely what the House of Lords decided in the case of R (Morgan Grenfell & Co Ltd) v Special Tax Commissioner 2003. There are no express words of override here, nor is there anything that can be thought of as giving rise to unnecessary implication. In the mean time, I have been given an answer to the question put to me by the noble Lord. It is difficult to talk about other legislation, but we are clear that the intent is to protect legal professional privilege here.
As a result of the precedent to which I have just referred, the Bill has the effect desired by the noble Lord, Lord Browne of Ladyton, and I would therefore ask him to withdraw his amendment.
Lord Browne of Ladyton
My Lords, the purpose of this amendment is to give the adjudicator a basis for investigating an alleged breach of the groceries code. Perhaps I may say at the outset that, if it is of concern to the noble Baroness or the Government, I do not intend to undermine in any sense the requirement for reasonable grounds of suspecting a breach of the code before an investigation can take place. Clause 4 enables the adjudicator to investigate in those circumstances, and I think that that is the appropriate test. However, we will have a debate about whether it is the appropriate test in response to other amendments before the Committee.
There is a perception that proaction on the part of the adjudicator and reasonable grounds are inconsistent with each other. I do not believe they are, and this amendment makes that clear. There is no provision in the Bill that allows the adjudicator to form the reasonable grounds for an investigation, so providing a route for complaints to the investigator is the best way to achieve reasonable grounds. This amendment provides in a simple way for the adjudicator to take his own initiative, on receiving a third party complaint, to begin an investigation. That is straightforward, and if we are legislating in plain language to indicate what we intend, we should spell that out. I beg to move.
Lord Teverson
My Lords, I should like to speak to my own amendment in this group, Amendment 26. Something that particularly interested me in the speech made by my noble friend the Minister at Second Reading was that, following the considerable work carried out on this Bill in its preparation stages, the provision allowing bodies to make a complaint was widened. In her opening statement, the Minister set out a list of bodies that could bring complaints before the adjudicator. The major change was that instead of only suppliers themselves being able to complain, the Bill specifically opens up the ability to do so to trade associations and third parties. I want to use the amendment moved by the noble Lord, Lord Browne, to ask whether that is absolutely the case.
I note that Clause 4(1) states:
“The Adjudicator may investigate whether a large retailer has broken the Groceries Code if the Adjudicator has reasonable grounds to suspect that”.
While I do not have the depth of knowledge of the noble Lord, Lord Browne, on these issues, which he has demonstrated so well, I want to be clear that what it means is that whoever reports a reasonable suspicion that there has been an abuse, the adjudicator can get involved. In fact, I was slightly concerned by his Amendment 23 as it seems restrictive, although I am not sure that that was his intention. It refers to,
“either at the Adjudicator’s own initiative or following a complaint by a third party with an interest”.
To me that almost excludes a farmer or a supplier, which I would say is the second party. It seems confusing, but perhaps I do not understand it completely.
I am also aware that Amendment 27, which is in this group although the noble Lord, Lord Howard, has not spoken to it yet, seems to be even more restrictive. The Minister’s assertion that we should be as broad as possible in terms of the adjudicator is very important, not only in his being able to take evidence—which is my own amendment—but also in his being able to have a wide range of people reporting problems to him. That is fundamental to the proper working of this Bill.
As regards my Amendment 26, it is important to emphasise that the adjudicator can consider any information that it seems appropriate to consider. I am not certain but that may well be covered by default by the Bill. I would like to test that and to ask the Minister to respond on whether that will exist within the wording of the Bill.
Baroness Wilcox
I thank all noble Lords. We are considering three amendments in this group—two intended to make it easier for the adjudicator to begin investigations and one to make it harder.
I assure noble Lords that the Government are in complete sympathy with the aims of the amendments tabled by my noble friends Lord Razzall and Lord Teverson, and by the noble Lord, Lord Browne. We firmly believe that the adjudicator should be able to consider information from any source when deciding whether to start an investigation, whether or not this is provided by way of complaint. However, it is unnecessary to make explicit provision for the breadth of information that can be considered. I assure noble Lords that in this respect Clause 4 is written broadly and places no limits on who can complain to the adjudicator or what evidence the adjudicator can consider as reasonable grounds for suspicion. My officials have discussed this clause with trade associations and representatives of suppliers, including the National Farmers’ Union and the Food and Drink Federation, and they have raised no concerns over the wording of Clause 4.
The amendment of my noble friend Lord Howard of Rising would return the Bill to the draft that was originally published for pre-legislative scrutiny last year by restricting the sources of information that the adjudicator could consider to information from suppliers and information in the public domain. I remind noble Lords that this issue was considered carefully by the BIS and EFRA Select Committees, both of which explicitly rejected the version of the clause that is now being proposed. They concluded that third parties, including trade associations and whistleblowers, could have a valuable role to play. After discussion with both suppliers and retailers, the Government decided that that was right. Trade associations, for example, may have a better overall picture of practices in a sector, which could reveal systematic breaches of the code. The Government therefore consider that it is right that the adjudicator should be able to consider any relevant information when making decisions to investigate. However, I reassure my noble friend Lord Howard of Rising that we have also introduced Clause 15(10) to enable the Secretary of State to restrict the possible sources, if it turns out that third parties do act irresponsibly.
I say to my noble friends Lady Byford, Lady Randerson and Lord Howard that there is protection in the Bill against malicious complaints, in that costs can be awarded against a complainant who makes a vexatious complaint or one that is wholly without merit. If those answers are seen as good and fair, I will ask the noble Lord, Lord Browne, to withdraw his amendment.
Lord Browne of Ladyton
My Lords, at Second Reading the Minister said that there would be no restrictions on who could complain to the adjudicator and she has confirmed that that is the position, which I am satisfied with. I am grateful to all noble Lords who have spoken in this debate for their support of that position, which was overwhelming, with one notable exception.
The noble Lords, Lord Teverson and Lord Borrie, raised the issue of my reference to the phrase “with an interest” as perhaps restricting those who can complain. I may, in including it, have been guilty of what I have been trying to avoid and want the Government to avoid: attaching legalese when it is unnecessary. The concept of “with an interest” is well recognised by lawyers. It was intended not to restrict but to indicate that there ought to be a bar against frivolous or vexatious complaints. The idea of title and interest is a concept with which I am entirely comfortable, but I understand that many other people may not be and may think that it would be restrictive. It would not prevent any of those identified groups that noble Lords want to be able to complain to the adjudicator from doing just that. In any event, I would think that the adjudicator would be experienced and able enough to indentify frivolous or vexatious complaints and see them off rather than have to wait until the end to deal with them by the imposition of expenses, as it were.
I cannot conclude without expressing a degree of regret at the tone of the preamble to the contribution of the noble Lord, Lord Howard of Rising, to which I listened with interest. I have some sympathy with it, which he will have gathered from my contribution. I am not interested in creating some monster which runs away in terms of regulation.
Baroness Wilcox
Before the noble Lord sits down, I realise that I omitted a response to my noble friend Lord Howard on a question that he asked. It was central to what he was saying, so I hope that the noble Lord, Lord Browne, does not mind if I intrude. My noble friend Lord Howard asked whether it was right that the adjudicator will have no power to require information before an investigation is started. The answer is yes. The adjudicator will have no such power; this is in paragraph 35 of the Explanatory Notes. The only exception to that is the monitoring of recommendations. I thank the noble Lord, Lord Browne.
Lord Browne of Ladyton
I will finish what I had to say. I was pleased that the nature of our debate in Committee this afternoon was devoid of partisanship. I know that the noble Lord, Lord Howard, was perhaps just tweaking our tail a little and was not making too serious a point, However, I represented a group of farmers in my constituency, which was both urban and rural, for 13 years. I established a good relationship with them, and some of them became my very good friends, although I did not know them before I became a Member of Parliament. I say to the noble Lord, Lord Howard, that before he categorises people as manifestations of irony, perhaps he should make some inquiries. I am confident that, were he to interrogate members of the National Farmers’ Union in Scotland whom I represented for 13 years about whether they thought it ironic that I should be party to a process that is designed to protect their livelihoods and those of others, he would be surprised. Clearly he would be surprised, because he has a preconception about where I am coming from. The same could be said of my noble friends on the Front Bench. I understand that one of them farms, and so is well qualified to speak for farmers. Therefore, it might be better if we avoided such implications for the rest of our deliberations. I beg leave to withdraw the amendment.
(c) the reasons for the decisions reached”
Lord Browne of Ladyton
My Lords, the purpose of the amendment is to require the adjudicator to give reasons for his or her decisions under Clause 5, for the very obvious reason that such decisions can lead to the consequences described in Clause 6 on forms of enforcement. The Minister will agree, as will the Government, that the adjudicator is expected to comply with the rule of law. It is important that the adjudicator’s decisions are lawful and reasonable, following investigation.
This simple amendment places the adjudicator under an obligation to provide reasons for his or her decisions to use enforcement powers under the Bill. It would be an eminently appropriate provision to have in the Bill. There will be an expectation on the part of the Government that the adjudicator will give such reasons, but ensuring that an expectation that reasons will be supplied would reassure those who may feel in any sense threatened by this legislation or believe that it will create an environment in which unreasonable demands may be made of them. In my experience, a requirement to provide reasons obliges those who make decisions to comply with the law and avoid successful challenge on grounds of human rights or judicial review.
However, much more importantly, providing reasons often means that judgments are accepted. In my experience of processes of this nature, if reasons are given people can then be satisfied that there is no point in taking the matter further by any form of appeal. In the absence of reasons, appeals or further proceedings are taken just to find out the reasons, which is why so many processes stop at the door of the appellate court or there are further proceedings. It is only at that point that parties can understand exactly the reasons for the decision in the first place.
I commend the amendment. I have not been successful thus far in my many attempts to try to improve the Bill. I hope that this simple amendment will not be considered offensive and that the Government can be generous enough to say that the Bill can be improved, even if the proposal for improvement comes from the traditional opposition Benches. I beg to move.
Lord Browne of Ladyton
Despite the lateness of the hour, I am significantly perked up by the noble Baroness’s response. I have no doubt that what tipped the balance in my favour was the support that I received from the noble Viscount, Lord Eccles, but more importantly that I managed at last to persuade my noble friend Lord Borrie that there was some merit in one of my amendments. I am extremely grateful to him. He has almost rehabilitated his relationship with me with that intervention. I am delighted that the noble Baroness is willing to take this away. I would of course say this but, with respect, it enhances this part of the Bill. It will have the consequence of reducing the amount of contention that follows decisions if it is clear that people can expect that there will be reasons given for them.
I listened carefully to the amendment by the noble Viscount, Lord Eccles, and I have some sympathy. Coupled with the contribution of the noble Baroness, Lady Byford, there is an issue here that requires further exploration. I think that—with respect—there was a cross-purposes discussion that took place between the proposal of the noble Baroness for comments to be published, and the response from the Minister that that would in some way impede the process of investigation. I understood the noble Baroness to be saying that the comments and response deserve to be published. As these will be published in any event, it would be a much more coherent and comprehensive process that would command the support of parties if they thought that, even when there was a finding against them, the response would be published by the process rather than independently of it.
I hope that I have done credit to the amendment from the noble Baroness. In any case, conversations are about to take place and I hope that, when we all come back to this, there will be even bigger smiles on their faces, metaphorically, than I have at the moment, having managed to achieve even this minor victory. In the mean time, I beg leave to withdraw the amendment.
Airlines: Snow and Ice
Lord Browne of Ladyton Excerpts(13 years, 9 months ago)
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Lord Browne of Ladyton
My Lords, the Minister will recollect that on the previous occasion that he answered questions on this issue in this House he made the very important point that part of the problem at Heathrow Airport, as we all know, is that it has no room for resilience because it operates at 98 per cent of its capacity day in and day out. When the weather changes or dramatic circumstances affect it, the airport has no flexibility. The answer to that lies either in increasing capacity or in reducing usage. Will this issue be addressed when resilience is being considered?
Earl Attlee
My Lords, I am sure that people will consider that, but it is important to remember that Charles de Gaulle Airport has four runways running at 75 per cent capacity but still experienced severe difficulties.