Pubs Code 2016

Adrian Bailey Excerpts

Wednesday 24th January 2018 Westminster Hall

[Mr Adrian Bailey (West Bromwich West) (Lab/Co-op)]

I beg to move,

That this House has considered the application of the Pubs Code 2016.

It is a pleasure to serve under your chairmanship, Mr Robertson. I would like to say that it is a pleasure to speak in this debate, but I spoke in the equivalent debate in January last year and I hoped then that I would never have to speak in such a debate again. However, given the way things have evolved, it is obvious that I need to, so I am here yet again.

I am something of a veteran of this issue. The initial predecessor to the Select Committee on Business, Innovation and Skills did an inquiry into it in 2004, and subsequent inquiries were held in 2009, 2010 and 2011. I was a member of the Committee in 2009 and Chair of it in 2010 and 2011. Looking back, I remember that Ted Tuppen, the former chief executive of Enterprise Inns, described the MPs who were campaigning on pub companies as morons. I am proud to say that I am probably one of the last surviving morons—by that definition—in this House.

The issues have been standard and constant throughout the evolution of this debate and the subsequent legislation. They arise first around the tensions between the pub companies and their tenants—I know they are commonly described as pub operating businesses now.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I congratulate my hon. Friend on securing this debate and the way he has pursued this issue. Like him, I contributed to debates on it in the last Parliament. I was pleased, as were many colleagues, to see the pubs code at last, but does he agree that the key now is to see it implemented throughout?

[Mr Bailey]

Absolutely. My hon. Friend makes an important point. This has been pursued through Parliament for nearly 15 years. If, at the end of the day, we do not demonstrate that our pursuit of this issue and the implementation of the legislation is effective, we will have failed in our duty. I am dedicated to ensuring that it is successful.

The crux of the issue is the mismatch between the power of the pub companies and their tenants. With that mismatch in power comes a mismatch in rewards. Basically, many pubs were being driven into closure and tenants into bankruptcy by virtue of the fact that the pub company was taking a disproportionate amount of the income that they were raising through their services.

[Sir Greg Knight (East Yorkshire) (Con)]

I congratulate the hon. Gentleman on initiating this debate. Does he agree that another problem is that the adjudicator has a tendency to make his decisions in private, thereby preventing a bank of knowledge from being built up by tenants, who could perhaps use some of the decisions as precedents?

[Mr Bailey]

I thank the right hon. Gentleman for that intervention. To a certain extent, I was going to cover that, but his precise point is a welcome addition, because transparency is the key. That would give guidance to tenants who were looking for the market rent only option. It would enable them to see how viable their application is and on what grounds they could challenge the pub company, if the pub company refused or obstructed it.

[Rachael Maskell (York Central) (Lab/Co-op)]

I will be writing to the Minister about my constituents’ experience of the Pubs Code Adjudicator following Paul Newby’s visit to York, at my invitation. Despite his commitments about expediency and communications, pubs such as the Golden Ball in York are still waiting 13 months later to hear what is happening about their case. How can that be fair, and how can it be right?

[Mr Bailey]

My hon. Friend raises an important point. I know that many tenants feel that this procrastination over resolution is playing into the hands of the pub companies, and that it is, in some cases, deliberately designed to drive up expenses and deter anybody from making such applications.

[Lilian Greenwood (Nottingham South) (Lab)]

I congratulate my hon. Friend on securing this debate. I want to ask a question on behalf of the Nottingham branch of the Campaign for Real Ale and its pub protection officer, who wrote to me about this issue. The point they make is that the process of obtaining a market rent only option is massively complicated and virtually impossible for an unsupported tied tenant to use without expensive legal support. Does my hon. Friend agree that if the legislation is to be useful, it must be easily accessible?

[Mr Bailey]

My hon. Friend makes an important point. That is one of the complaints, and I will be discussing some of them in a few moments.

Prior to the implementation of the legislation, subsequent Committees sought the industry’s agreement on a voluntary code, but subsequent inquiries demonstrated that the pub companies, despite paying lip service to a voluntary code, were actually not conforming to it and not making any progress on it. It was then in exasperation—almost desperation—that the Select Committee decided that enough was enough, and that it was time to implement legislation. Subsequently, the legislation materialised.

The key issue, above all else, is tied tenancies and the market rent only option. The argument is that tied tenants have to pay a disproportionate amount of money for their stock and other services, and that, as a result, the pub company gets a disproportionate share of the income arising from the premises. If a tenant seeks to go free of tie, the pub company will implement conditions in the negotiations that remove any financial advantage from that course of action. The legislation, by giving tenants the option of applying for a market rent only option, is designed to overcome that handicap. The way in which the process is being implemented is a matter of huge concern, and it needs further consideration by the Pubs Code Adjudicator and the Government.

The Pubs Code Adjudicator report in July 2017—bearing in mind that the legislation came in one year earlier, in July 2016—said that there were two overarching principles in the code. The first was “fair and lawful” dealings in relation to tied tenants. The second, which I have touched on, was the “no worse off” principle, which sets out

“that individual tied tenants should not be worse off than they would be if they were free of the tie”.

Eighteen months after the introduction of the pubs code and the Pubs Code Adjudicator, it is time to take stock and assess whether the objectives set out in the pubs code—I just defined them—are being met, and, if not, what needs to be done.

Before I do that, I have to touch on the controversy that raged over the appointment of Paul Newby as the Pubs Code Adjudicator. I will not dwell on the whole catalogue of concerns, but it is well known that there are accusations of conflicts of interests arising from his past employment with the valuers and surveyors Fleurets, because it had extensive interests with the pub companies, and from his personal investment in it. I said in the debate last January that unless he divested himself of that particular investment, then in no way should he be the Pubs Code Adjudicator because he had an obvious and transparent conflict of interest. He has not done so. Given that confidence in his commitment and impartiality is crucial to earning the trust of pub tenants, that must be of huge concern. I will come back to this issue in a moment.

He has had opportunities over the past 18 months to demonstrate his effectiveness; however, looking at his performance, we see that it is possibly a slight understatement to say that the implementation and the progress made under his supervision fall short of the level needed to achieve the legislative objectives. The first concern is the slowness of the adjudication process. Between July 2016 and March 2017, arbitration awards were made in only 15 of the 119 cases accepted for arbitration. In the cases specifically relating to the market rent only option, the figure was 12 out of 104. Later in the year, in August, the adjudicator published a market rent only verification exercise report, which demonstrates that of the total of 497 market rent only notices, only 11 were actually converted into agreed market rent only tenancies. Of the 130 arbitration cases listed on 31 July 2017, 79 had been delayed for more than three months, and 12 for more than six months.

Now I will come back to the point that I was making earlier. The slowness of arbitration is not the only issue; impartiality is also a problem. The Chartered Institute of Arbitrators has upheld four of the 12 challenges made by pub tenants to the adjudicator’s decisions. That demonstrates the lack of confidence of tenants in the industry in the robustness and impartiality of the way in which he is exercising the code. To have a one-third failure rate in such a key, sensitive position is absolutely unacceptable.

[Rachael Maskell]

My hon. Friend is making a very solid case. A further conflict of interest in dragging out these cases is that doing so is economically disadvantaging tenants. Has he discovered the same fact?

[Mr Bailey]

Again, my hon. Friend makes an important point. The more we drill into this subject, the more comes out of it. Unfortunately, I am too constrained by time to go into every single issue that arises.

[Toby Perkins (Chesterfield) (Lab)]

I am keen to intervene before my hon. Friend moves on from that point. As I understand it, in the four cases in which the Chartered Institute of Arbitrators found that there was a conflict of interest, Mr Newby has continued to arbitrate. He has not accepted the verdict of the Chartered Institute of Arbitrators. An important question for the Minister is whether he thinks that if the Chartered Institute of Arbitrators believes that there is a conflict of interest, Mr Newby should respect that verdict.

[Mr Bailey]

My hon. Friend raises another significant point. By continuing to act on the case, Mr Newby is acting in breach of the code of conduct of the professional institute of which he is a member.

It is also significant that successful negotiations between the pub companies and tenants were rare. Eight times as many cases were referred to the PCA for arbitration, and four times as many went to independent agreement, as decided by bilateral negotiations between the tenants and the pub companies. It is not difficult to understand why. There is now overwhelming evidence that the pub companies’ historic antagonism, intimidation and bullying has continued, and the confrontational culture has prevailed, deterring tenants from taking, seeking or achieving market rent only options as a result of bilateral negotiations with the pub companies.

That is confirmed by the market rent only verification exercise of August 2017. The report states:

“Almost without exception, tenants and tenant advisers reported that while the POBs are abiding by the letter of the Pubs Code, to varying degrees they are not acting within the spirit of the Code; and that some are taking a legalistic approach to the Code.”

The second highest number of calls to the Pubs Code Adjudicator inquiry line related to the behaviour of pub companies, and they included accusations of intimidation, bullying and delay tactics. Those are not my words, but the words of the report.

I do not have time to examine every device used by the pub companies to frustrate negotiations but will pick out just a few. First, they include processes in their negotiations with tenants that are designed to push up costs, and include conditions not commonly found in tied tenancies or pre and non-code free-of-tie agreements.

Secondly, there is insistence by the pub companies for a brand new tenancy agreement, rather than a deed of variation to an existing tied tenancy. That enables pub companies to introduce new terms and requirements not historically found in a free-of-tie agreement, but that introduce substantial additional upfront costs.

Thirdly, deposits and advance rents are designed to make the market rent only option unaffordable. Lastly, there are unreasonable, unexpected and novel improvements of dilapidation requirements, including things such as a new roof, new pumps, resurfacing of car parks, cellar cladding, fire rules assessments and, I believe, patios as well. I would stress that those are only some of the strategies used by the pub companies to circumvent the spirit of the law.

Arising from a letter from my hon. Friend the Member for Leeds West (Rachel Reeves), the Chair of the Business, Energy and Industrial Strategy Committee, on 3 November 2017, the Pubs Code Adjudicator acknowledged

“that very few MRO notices served by tied pub tenants convert into MRO tenancies, and that bilateral negotiation and agreement between pub-owning businesses and tied pub tenants appear to be by exception.”

That is a formal confirmation from the Pubs Code Adjudicator that, in effect, it is not working. It is clear from the verification exercise that the pub companies are using their legal expertise and superior bargaining power to perpetuate the status quo and to thwart the intended objectives of the pubs code legislation.

In the same letter, the Pubs Code Adjudicator says that he is prepared to use his enforcement powers to ensure compliance if necessary. We have been operating with the code for 18 months, and there is overwhelming evidence that it is necessary and reasonable to ask why—given the evidence that has emerged in that period —he has not done it already. Instead, the adjudicator has published a compliance code for pub companies which, frankly, we would have expected to have been produced much earlier. Predictably, the pub companies have reacted with an antagonistic letter to him. I am afraid that, on the basis of earlier precedent, it is only the threat of legal action that will move the companies.

In the same letter, the adjudicator says that he will make recommendations to Ministers about business practices that he believes are unfair to tied pub tenants but are not breaches of the pubs code. Again, the evidence about that has been there for a long time, so why has he not done that before? I ask the Minister this question: if the recommendations from the adjudicator are forthcoming, or indeed even if they are not, will he make the appropriate changes to the legislation to ensure that it meets its objectives?

In his letter to my hon. Friend the Member for Leeds West, the Pubs Code Adjudicator asserts that his aim is to help to reshape the culture of the industry. To date, there has been absolutely no sign of that. The pub companies are intransigent and have enormous resources at their disposal. To change the prevailing culture, a much tougher approach is needed. The PCA is running out of time and it is time that the Government sought a replacement.

The Government need to make a couple of headline adjustments to the legislation or the code to ensure that the code is effective and the problems that I have outlined are overcome. Many such changes would do that, but there are two key ones. The first is to ensure that the definition of the market rent only option makes clear the right of a tenant to pay an independently assessed market rent, and only that rent, to the pub company. Secondly, the only changes to deeds of variation that should be allowed are the severing of tied terms and the rent being an independently assessed market rent. Those two alterations would go an enormous way to addressing some of the important grievances that have emerged so far, but many others could be made.

I will conclude by saying that, as I said earlier, I have been involved with this for a very long time—many Members from all parties in the House have been equally committed. I pay tribute to my predecessors as the Chair of the Business, Innovation and Skills Committee and its predecessor Committees, and the many campaigners in the many voluntary groups who have been so assiduous and dedicated to ensuring that we drag these companies kicking and screaming, by whatever legislation is necessary, to confront their responsibilities as operators of important community facilities that play an absolutely vital role in so many people’s lives, and in the lives of so many communities. I will not rest until that is done and I hope that other Members and the Government will work with me to ensure that we achieve that goal.

--- Later in debate ---

[Jim Shannon]

I thank the hon. Gentleman for that intervention.

[Mr Bailey]

I agree with my hon. Friend the Member for Chesterfield (Toby Perkins). In fact I received a comprehensive brief from Greg Mulholland about an hour before I came into the Chamber. I had a feeling that somehow his beady eyes would be upon us today to ensure that we would articulate the viewpoint on which he has campaigned so effectively for many years.

[Jim Shannon]

I thank both hon. Gentlemen for their comments which, along with mine and others’, are a recognition of the tremendous work that the gentleman in question put in, in this Chamber. We all recognise that his efforts were one reason we have got so far forward.

Others have endeavoured to take us the extra mile through their efforts, and I was made aware of the details from the briefing that was most helpfully provided by the Library. We do not often say it, but I thank those researchers for their diligent work. They provide tremendously factual and detailed information to sharpen the memory a wee bit and help in recalling what is important—the briefings also provide a signpost to further excellent information.

I am aware of the importance of pubs in my constituency, as all hon. Members will be. In rural areas in my constituency, more often than not the pub is the central focus of attention for meeting, entertaining and eating—just somewhere to meet. The importance of pubs cannot be underlined too strongly. I think it was just a few weeks ago, perhaps just before Christmas, that there were pubs closing. The rate of pub closures across the United Kingdom of Great Britain and Northern Ireland is alarming. I think that the pubs code and the Pubs Code Adjudicator are part of a methodology to try to hold back the tide of closures, so it is important that that is in place.

There was a community project where a collective got together and used their own investments to restart their pub with a major refurbishment. They did so for a purpose. They recognised that the community had lost something important and they wanted to reinstate it. Pubs are important in contributing to the economy and providing jobs, and as focal points for leisure and meeting.

It seems to me that hon. Members stepped in to stop the monopoly that was affecting small pub tenants. The spirit of the law under the pubs code was to allow a tenant to request a quote from their pub-owning company for a rent only agreement when their tenancy was due for renewal. We also established a position whereby there could be arbitration and mediation to ensure that the spirit of the law was being followed. That job lies squarely in the hands of the Pubs Code Adjudicator. Members have outlined credible and legitimate concerns, and we look to the Minister, as we often do, for a comprehensive response. Questions have now been asked as to whether the adjudicator is impartially fulfilling the role. In a few cases, the professional arbitrators body has stepped in to ask for someone else to arbitrate. Sometimes we must ask why something is happening: is there a failure in the present system? Some Members have set out a case that there is. The Minister must deal with that in his response.

I believe that the spirit of what we strove for was giving the little man or woman a chance. That might not mean every case being granted, but it does mean every case being fairly considered. Perhaps that means that the involvement of a third person is needed. I stand by the bringing in of a deputy to take up the cases that are questionable or that need to be reviewed or looked at again. That is what the spirit of the law has been. No man in this world is infallible and we all understand that we must submit to allowing others to step in at some stage to give oversight to something if there is a different way of seeing it or a clearer way to understand it.

As an example of such a difficult issue, if a lady came to the constituency office for help with serious intimate problems, she might prefer to speak to one of the girls in the office. Anyone would know what to do: set themselves aside so that they could do that. Why cannot that happen in the present difficult matter as well? I have no issue about handing such a case to one of my capable staff, who understand the issues very well. The best interest of the people in the case is most important. That is the view to take.

We must look at what we sought to achieve and find a way to bring that about practically. That is what I support today, and what other right hon. and hon. Members have argued for. Just as an auditor would be entitled to audit my affairs, they must be open to having what they do audited. That is true accountability. Each one of us is ultimately accountable to someone. That was the spirit of the pubs code—to help the little man or woman. Let us uphold that spirit today.

--- Later in debate ---

[Mr Bailey]

I belatedly welcome the Minister to his new role and portfolio. I do not envy him trying to grasp the ins and outs of the issues surrounding this topic, which some of us have been dealing with for many years. Having seen him perform before, I am confident that he will demonstrate both the commitment and competence to address our concerns properly and effectively.

A couple of things emerged from the debate, the first of which is the enormous expertise within the ranks of the House. I refer particularly to my hon. Friend the Member for Chesterfield (Toby Perkins). Without his actions in 2015, we would not be as far as we are in the debate, and I think that deserves formal recognition, as does the work of Greg Mulholland in the past. I also thank my hon. Friend the Member for Sefton Central (Bill Esterson) for his prosecution as locum for the other shadow Minister, my hon. Friend the Member for Sheffield, Brightside and Hillsborough (Gill Furniss).

I welcome the assurances given by the Minister, and would be very happy to work with him whenever I can to ensure that the issues that have been raised today are addressed. On the point about conflicts of interest, I was open-minded, but I think that the decisions of the Chartered Institute of Arbitrators and the implications are serious. I ask him to examine those very carefully.

Question put and agreed to.

Resolved,

That this House has considered the application of the Pubs Code 2016.