Groceries Code Adjudicator Bill [HL]

Baroness Byford Excerpts

Tuesday 26th June 2012 Grand Committee

[Baroness Byford]

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

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

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

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

[Baroness Randerson]

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

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Moved by

[Baroness Byford]

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

[Baroness Byford]

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

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

[Lord Knight of Weymouth]

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

[Baroness Wilcox]

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

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

[Baroness Byford]

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

Amendment 28 withdrawn.

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[Viscount Eccles]

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

[Baroness Byford]

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

[Lord Borrie]

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

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[Baroness Wilcox]

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

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

[Baroness Byford]

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

[Baroness Wilcox]

Yes, of course.