Groceries Code Adjudicator Bill [Lords]

Baroness McIntosh of Pickering Excerpts

Monday 19th November 2012 Commons Chamber

[Miss Anne McIntosh (Thirsk and Malton) (Con)]

It is a great pleasure to follow the hon. Member for Edinburgh South (Ian Murray). I should like to congratulate the Under-Secretary of State for Business, Innovation and Skills, my hon. Friend the Member for East Dunbartonshire (Jo Swinson), on starting this Second Reading debate so eloquently. I want to make some comments as the representative of growers and farmers in Thirsk, Malton and Filey, and I want to share with the House the evidence that the Environment, Food and Rural Affairs Select Committee has heard on these matters.

I welcome the Bill’s Second Reading. I have some common ground with the hon. Member for Edinburgh South on these issues, but probably more with my hon. Friend the Minister. I also have common ground and differences with the hon. Member for West Bromwich West (Mr Bailey), who chairs the Business, Innovation and Skills Select Committee.

We should perhaps pause for a moment to consider the marketplace in which some of the growers we hope will benefit from the Bill are operating. They tend to be very small producers of each vegetable or form of produce, and they are often small in number. There is absolutely no comparison with the size, volume and financial weight of supermarkets.

I welcome the fact that we have reached Second Reading and I welcome the useful amendments made in the other place, but there has been a long gestation period from the Competition Commission report of 2008. I would like to record the thanks of the DEFRA Committee to those who gave written evidence and, more specifically, oral evidence in the context of our brief inquiry. We shared our conclusions with the Business, Innovation and Skills Committee. Some of the points we made have been adopted, but it is worth repeating them today.

We welcome the fact that an adjudicator is going to be established, and we believe that the adjudicator should have the power to accept complaints from indirect as well as direct suppliers. Will the Minister confirm that suppliers will have the ability to make anonymous complaints, which we believe will be fundamental to the success of the groceries code adjudicator?

In a limited market—in Lincolnshire, for example, and other parts of the country—where there are very few leek growers, if one of them wished to make a complaint against a particular supermarket, it would be too easy for the supermarket to identify that particular grower. It is therefore vital that the grower has the safety of knowing that an anonymous complaint can be made to the adjudicator—either directly or, as forcefully expressed by our Committee, through an indirect route via the National Farmers Union, the Country Land and Business Association or the Tenant Farmers Association. They are membership organisations that will represent the individual grower, who will then be able to make a case, safe from persecution and safe from the possibility of having the contract terminated at an early stage.

[Ian Paisley]

The hon. Lady makes a vital point. If a potato processor or person producing potatoes in Northern Ireland were to make that sort of complaint, it would in effect be one of three people, so a middle way of getting the complaint through must be found.

[Miss McIntosh]

The hon. Gentleman reaffirms my point very eloquently. He would probably share my view—and I hope that Ministers and shadow Ministers will grasp it—that the security of tenure of some of these growers is absolutely shocking. That is in stark contrast to—albeit another woeful situation—what happens in the dairy industry. A cheese producer in my area contacted me to say that some of the milk supplies for cheese production—a liquid production that we are so good at in this country—are being threatened. The growers that I believe will benefit more directly and more specifically than dairy farmers and others sometimes have only three months’ security of tenure or certainty of contract—not even a year. I do not know—perhaps the Minister can help me—whether the Bill will address this disparity between producers of, for example, milk and potatoes, and others. With the groceries code adjudicator, will these producers and growers gain greater security of contract than the three months or less than a year that they have at present?

Let me explain what I believe to be the sticking point. I hope I heard the hon. Member for Edinburgh South correctly as I think he said he would favour the power to have proactive investigations. I believe that that is vital. I should declare my interest—I know that what I say here will not go further than this Chamber, but I also know that if someone wants to tell a secret, this is the best place in which to share it. I served for six months—in 1978, I am afraid to say—in what is now called DG Competition but was then the Directorate General for Competition, dealing with investigations of complaints brought directly to the European Commission. I understand that the Competition Commission is based on the same philosophy, as it were, as DG Competition.

I should like to know what good reason the Government could have for not introducing a power for the groceries code adjudicator to launch a proactive investigation. It could be based on evidence received by word of mouth, or on material in trade journals. Journalists working in the specialist press often hear things at conferences to which others are not privy.

[Jo Swinson]

Clause 4 makes it clear that the adjudicator can conduct an investigation

“if the Adjudicator has reasonable grounds to suspect that…the retailer has broken the Code”.

Obviously that could result from a specific complaint made by a supplier, but the adjudicator might become aware of the existence of reasonable grounds through, for instance, press articles or investigatory television programmes. Proactive investigations will indeed be possible as long as such grounds exist.

[Miss McIntosh]

That is most welcome, although obviously, under the new powers that Select Committees have, we shall analyse the Bill very carefully to establish whether it can be improved. Perhaps the Minister will be good enough also to confirm that anonymous complaints can be made, that indirect as well as direct complaints can be made and that third parties such as trade organisations will be able to make complaints, and will tell us whether the Bill contains provisions relating to the recovery of investigation costs.

We are anxious for the adjudicator to have the power to levy financial penalties without the need for an order by the Secretary of State. That has been mentioned a number of times already in interventions. Having waited since 2008, when the Competition Commission first reported, we would find it unacceptable for the adjudicator not to be fleet of foot and able to levy such penalties without the need for an order. I believe that the Bill allows that in some circumstances, but perhaps the Minister could give us a nod.

Clause 16 refers to the transfer of adjudicator functions to a public body, and states:

“The Secretary of State may by order abolish the Adjudicator”.

Even a cursory reading sets alarm bells ringing. Does that mean that within two or three years of the establishment of the adjudicator, his functions could be abandoned? Would they simply pass to another public body, or would the whole process grind to a halt? Some clarification would be helpful.

Obviously we were briefed by outside bodies before the debate. I should like the Minister who responds to the debate to comment on the views of the National Farmers Union, which is keen for the adjudicator to be able to impose fines as swiftly as possible without waiting for an order from the Secretary of State. Also, can the Minister say whether there will be an ongoing review of the effectiveness of the groceries code itself? There would be some merit in having an independent body look at the effectiveness of the code after some cases have been addressed by the adjudicator, and I am sure my Committee—or, indeed, the Business, Innovation and Skills Committee—would stand ready to do so. Do the Government plan to follow that course of action?

The National Farmers Union has said it would welcome an assurance from the Government that compliance with the code will be mandatory for the retailers it covers. I ask the Minister to set out precisely which retailers it will cover. Will the Minister also state whether the code will be legally enforceable by the adjudicator?

We on the Environment, Food and Rural Affairs Committee are keen to ensure that the new adjudicator will adequately protect farmers and food producers from large retailers. We see this as a good opportunity to restore the balance between the mighty supermarkets and the considerably less powerful growers, who provide the food we eat. I hope we can continue to move towards self-sufficiency in their products.

There has been a climate of fear in the grocery supply chain for many years. We therefore welcome the provisions to allow the adjudicator to receive anonymous complaints —that has, I think, been confirmed. We wish the Bill safe passage today, but, in the light of opinions and evidence heard by us and the Business, Innovation and Skills Committee, we reserve the right to continue to examine it closely as it progresses, with a view to improving it if we believe that is necessary.

--- Later in debate ---

[The Minister of State, Department for Environment, Food and Rural Affairs (Mr David Heath)]

It is a pleasant and, for me, unprecedented experience to speak at the Dispatch Box on a Bill that has received a welcome from Members from all parts of the House without exception, and I am very pleased that that is the case. I think it is because they share, to paraphrase the hon. Member for Tiverton and Honiton (Neil Parish), a desire to see a system in the supply chain that is fair to the producer, fair to the processor, fair to the retailer, and fair to the consumer. That is what we are trying to achieve in the legislation.

There is ample evidence, not least in the Competition Commission report that, in some ways, provides the origins of the legislation, of an imperfect market in the grocery trade. The hon. Member for Edinburgh South (Ian Murray) said that that there was a monopoly position for the big supermarkets. Strictly speaking, it is not a monopoly. Classical economics requires us to call it an oligopsony, but that term is not used very often. There are powerful players in the retail sector: there are a few buyers and many sellers, which produces an imbalance in the terms of trade. That is why I am pleased to introduce the Bill with the Under-Secretary of State for Business, Innovation and Skills, my hon. Friend the Member for East Dunbartonshire (Jo Swinson), from our sister Department. It is wonderful to have two Departments thinking and acting as one in government in introducing legislation of this kind, not least, as the hon. Members for Ogmore (Huw Irranca-Davies) and for Bristol East (Kerry McCarthy), and many others said, because I campaigned personally for the provision for a long time. Other Members who have spoken have been equally assiduous, or more so, in arguing that case, particularly my hon. Friend the Member for St Ives (Andrew George), who has worked very hard on the issue, and the hon. Member for Ynys Môn (Albert Owen). I loved his contribution: it was amusing, and most of what he said was well founded.

The measure has united—this, too, is unprecedented—the Chairs of the Select Committees on Business, Innovation and Skills and on Environment, Food and Rural Affairs. Select Committees do not always agree on absolutely everything, but both those Committees have had an opportunity to look at the measure in pre-legislative scrutiny. The hon. Member for West Bromwich West (Mr Bailey) kindly said that the Government listened to what his Committee said, and that they accepted 80% of its suggestions to improve the measure. That is how it should be; that is the whole point of pre-legislative scrutiny.

Let me make one point to those who have criticised the timing of the Bill. As far as this Administration are concerned, I reject that accusation. The Bill was introduced as a draft Bill in the first Session of this Parliament, as we promised, and it was introduced as a substantive Bill as the very first Bill after the Queen’s Speech in this second Session of Parliament. I find it difficult to understand how we could have been more urgent in our approach. There was fair criticism of the time it took for nothing to appear under the previous Government, but I do not want to be partisan in my approach. It is important to maintain the coalition of interests on both sides of the House in support of the Bill.

The Chair of the Environment, Food and Rural Affairs Committee, the hon. Member for Thirsk and Malton (Miss McIntosh), mentioned a few significant points, some of which were picked up by others. The most important initially was the business of indirect complaints and the capacity for anyone to bring forward a complaint. Let me make it absolutely clear that the Bill provides for any party to complain. It does not have to be the producer who is involved; it could be trade organisations or non-governmental organisations. Anybody who has information to put before the adjudicator should do so. Those complaints will be treated with anonymity, because it is part of the job of the adjudicator to ensure that that is the case. Yes, the adjudicator can take forward proactive investigations. If there is good reason to believe that an abuse of the code is going on, the adjudicator can take forward a proactive investigation.

The hon. Lady also asked about the recovery of costs and clause 10 makes that clear. She asked a perfectly proper question about the provisions for the transfer of functions or abolition, which she thought were slightly peculiar, but they are part of the Government’s normal process of inserting sunset clauses so that bodies do not persist simply because they were set up in primary legislation with no opportunity to repeal it at some stage in the future. There might need to be a significant change, a renaming, a merging of functions or any of the many other things considered as part of the Public Bodies Act 2011, so that is a perfectly proper provision.

The hon. Lady asked what the list of designated retailers was and it might be helpful to the House if I simply say who the 10 are. They are Asda Stores Ltd, the Co-operative Group Ltd, Marks and Spencer plc, Wm Morrison Supermarkets plc, J Sainsbury plc, Tesco plc, Waitrose Ltd, Aldi Stores Ltd, Iceland Foods Ltd and Lidl UK—[Interruption.] I cannot quite catch what the hon. Member for Ogmore is saying from a sedentary position, but I thought it was helpful to give the list of retailers included in the proposals.

I thought that the hon. Member for North Antrim (Ian Paisley) made a very thoughtful speech.

[Miss McIntosh]

Now that peace and unanimity is breaking out, will my hon. Friend return to the vexed issue of fines being imposed? We are a little envious that the Business, Innovation and Skills Committee has had its amendments incorporated and we would like 80% of our amendments to be incorporated at the same time.

[Mr Heath]

I will inevitably return to that point a little later, as it was raised by so many Members. Let me first, however, cover the other specific points mentioned in the debate.

The hon. Member for Carmarthen West and South Pembrokeshire (Simon Hart) asked about companies outside the big 10. He is absolutely right that they are not specifically included in the Bill as levy payers, but let us recognise that the big 10 represents 95% of the grocery trade. If we are successful in the application of the adjudicator in improving standards of contract compliance, that will feed through to the rest of the sector by competition alone, if nothing else. The hon. Gentleman also mentioned length of contracts. That is not specific to the code of conduct, but the matter can be properly investigated in the context of an abusive relationship. Where such a relationship exists, that will be laid bare by the process.

The hon. Member for Bristol East made some good points about food waste. She knows that we have engaged with her on that issue and will continue to do so. I think I have a meeting with her in the near future to talk about that.

A number of Members spoke with a great deal of experience of the sector from having worked on the producer side. The hon. Members for Camborne and Redruth (George Eustice), for York Outer (Julian Sturdy) and for Sherwood (Mr Spencer), my hon. Friend the Member for Brecon and Radnorshire (Roger Williams), and the hon. Member for Tiverton and Honiton all have direct experience of working in agriculture and could tell us about the sort of downward pressures that they know suppliers regularly experience. The hon. Member for South Down (Ms Ritchie) spoke about trade associations. I hope I have been able to put her mind at rest about that.

My hon. Friend the Member for Ceredigion (Mr Williams) raised a number of important points. He spoke about access to the code and, as I said, I hope I have given him some reassurance on that. He talked about changes to the code. That is an important point. According to the process set out in the Bill, the adjudicator can put forward for consideration changes to the code, but that proposal goes back to the Competition Commission for consideration before being put before the House. It is important that we maintain that linkage because fundamental to the Bill is the abuse that the Competition Commission identified between major retailers and their suppliers. It would be a great mistake for the House to substitute our opinion for the evidence adduced by the Competition Commission.

My hon. Friend also mentioned retrospectivity. Let me underline the point again. If an abuse is continuing at the time that the adjudicator is appointed, it is proper that he or she should investigate that abuse, but we have a strong principle in British legislation that we do not apply retrospectivity to something that occurred before the date that a particular statute comes into effect. Therefore it would not be entirely proper for the adjudicator to look at complaints within the terms of the code that pre-dated that appointment if they no longer continue.