Groceries Code Adjudicator Bill [Lords]

George Eustice Excerpts

Monday 19th November 2012 Commons Chamber

[George Eustice (Camborne and Redruth) (Con)]

I welcome this Bill’s Second Reading. As Conservatives, we believe in free and fair markets, but we rigorously oppose the abuse of dominant market power, which is why the Bill is essential.

Before entering politics, I worked in the farming industry for 10 years. We were a major supplier of strawberries to a number of supermarkets, and I experienced first-hand some of the sharp practices that the Bill is designed to deal with. They ranged from forcing suppliers to use third party contractors, for things such as packaging and haulage, who would then charge suppliers more than the market rate. I experienced the retrospective clawing back of costs resulting from wastage on the shelf. Supermarkets would claw back not just what they paid, but the margin that they expected from a product. Growers were frequently forced to participate, often unwillingly, in supermarket promotions, and were expected to sell their produce for below the market rate.

I saw many instances of supermarkets rejecting stock when they had simply made an error in orders. That was a particular problem with the strawberry industry, because a supermarket buyer would place an order for a batch of strawberries, unaware that it would begin to pour with rain the following day. When it pours with rain, strawberry sales collapse and supermarkets are reluctant to take the orders that they have placed, so they do all that they can to find an excuse to reject batches of fruit that have been supplied to them.

I have been out of the industry for 10 years, and I thought that perhaps things had changed, but other practices have crept in. Only last year, I was talking to a supplier who explained that he was required to show his annual financial accounts to the supermarket as a condition of supply. Ostensibly, that is to check that the business is financially secure, but we all know that in reality it is to see what its profit margin is, and how much further supermarkets can drive it down into the ground without killing it altogether.

[Andrew Bingham (High Peak) (Con)]

The problem, as my hon. Friend sets out, is very serious—it is almost commercial bullying. Does he agree that that is why it is so important that the adjudicator can now receive referrals from third parties, such as trade associations and so on, to protect anonymity and stop future bullying?

[George Eustice]

I absolutely agree. One of the big improvements made to the Bill in the Lords was the extension of its scope so that that could happen—so that anonymous complaints could be made and so that whistleblowers and third party trade organisations could be involved in the process. The evidence we heard in the Environment, Food and Rural Affairs Committee made it very clear that many suppliers are incredibly fearful of the supermarkets they supply. They are conscious that it is easy for suppliers to be identified as there will sometimes be only a handful of them for a particular product line to a given supermarket. It is therefore very important that the Bill has that extra scope.

I also recently spoke to another supplier who told me about a problem that he had encountered with supermarkets putting him under huge pressure to fulfil the terms written into a contract and supply the volumes that he was no longer able to source due to bad weather or a crop failure. In negotiations, he was put under huge pressure by a supermarket to buy the product from abroad and sell it at a massive loss so that he could fulfil his contract. That is unacceptable behaviour. When prices change, supermarkets should also change their prices.

[Mark Tami (Alyn and Deeside) (Lab)]

Does the hon. Gentleman accept that it also happens the other way? I have come across cases in which supermarkets have turned around and said that they do not want an order any more at very short notice. The supermarkets have the power to say to smaller suppliers, “Take it or leave it, because we can go elsewhere and you cannot.”

[George Eustice]

I absolutely agree, and that is why the Bill is so important. Over the past 20 years, there has been huge growth in the power of a handful of very powerful retailers who have huge market clout and have, frankly, abused their power. If we want proper market conditions back, in which people are paid a fair market price for their goods, the Bill and the groceries code adjudicator will be vital.

Let me move on to the issue of the financial penalties, which have featured heavily in the debate so far. As my hon. Friend the Member for Thirsk and Malton (Miss McIntosh), the Chair of the Environment, Food and Rural Affairs Committee, has said, our Committee concluded that there was a case for making those fines available to the groceries code adjudicator from the start rather than waiting for it to become necessary for another order to be introduced by the Secretary of State.

The question of fines is important and I agree with the Minister that naming and shaming might be adequate for some minor breaches, but I take issue with the claim that naming and shaming might be a more powerful deterrent than a fine. The British Retail Consortium might say that we should name and shame, because that is more powerful than a fine, but that is a bit of a clue. When the retailers say that what really scares them is naming and shaming, even though they do not want fines, the Minister ought to be a little more suspicious than she has been.

It is important to have an escalating scale of penalties. Why remove an important tool from the box? It would be possible for the Government to craft guidance on when a fine would be appropriate and what size that fine should be. It could stress that fines should be used sparingly and that other sanctions, such as naming and shaming, should be the preferred route. I think it is wrong, however, to rule fines out at this stage because of the question of what should happen if there is one persistent offender out of the 10 supermarkets caught by the groceries code adjudicator. What if that one offender, however many times they are named and shamed, sticks up two fingers to the adjudicator and says, “We really don’t care.”? That is unfair on the remaining nine, who might be abiding by the code, and it risks making the whole initiative unstable.

The groceries code adjudicator is more likely to succeed if the power to fine is there from the beginning and more likely to fail if it is not. For the adjudicator to work, we need to ensure that its introduction will change the behaviour of the supermarkets. It is not just about having investigations all over the place—we need people to be fearful of a fine, so that they moderate their behaviour.

There is a real problem in the serious mismatch between what a Minister might be told by the public affairs officers who work for the supermarkets and what she would experience if she was a carrot grower supplying supermarkets and dealing with buyers daily. The truth is that public affairs officers for the supermarkets will often strike a paternalistic pose and say, “It is not in our interest to upset our suppliers. We want happy suppliers,” and they will have pictures in their supermarkets of happy farmers’ children working out in the fields. It all sounds great, but the buyers have very different incentives that focus on margins, profit and exercising control over their suppliers. The Minister said that the market for supermarkets was fiercely competitive, and she is right. That is why my fear is that when Parliament’s back is turned, the incentives that motivate the buyers will prevail because it is ultimately their profit margins that they will seek to protect.

The possibility of third party complaints has been raised and is an important power. The industry has a part to play in this. Although it says that we need anonymity and that it is important for complaints to be made without the complainant being identified, the industry has to play its part in helping the supermarket adjudicator identify bad practices. One of the proposals that I have made to the NFU, which keeps telling me that it is under consideration, though I have not heard that it has been taken up fully yet, is the idea of what I have termed a farm-fair index. That would be based on a panel of 500 farmers and suppliers across a range of sectors. Each quarter they would be given a questionnaire asking a series of questions that measured the adherence of each of the 10 supermarkets to the groceries code. There would be a league table of the 10 supermarkets and they would be scored according to which of them abided by the code the most and which departed from it the most. If a particular supermarket was at the bottom of that league table for two consecutive quarters, an automatic investigation by the groceries code adjudicator would be triggered. That would be a good way of ensuring that vexatious complaints were filtered out. A broad panel—the same 500 farmers and suppliers each quarter—who could score the adherence of the supermarkets to their own code would provide an important tool to help the adjudicator identify bad practice.

In conclusion, I welcome the Bill. It is a positive step forward and will improve relations between farmers and their supermarket customers, but I wish the Government would take another look at the issue of financial penalties.