Groceries Code Adjudicator Bill [HL]

Lord True Excerpts

Thursday 28th June 2012 Grand Committee

[Lord True]

My Lords, having listened with great interest to nearly two days of discussion on the Bill, it does not look as if I am going to be able to trouble the scorers during the rest of the day. I should declare that I have no interest to declare in these matters. However, I feel that the point made by my noble friend Lord Howard of Rising and supported by the noble Lord, Lord Browne, is compelling. As the leader of a local authority, if I published a parking order and then did not publish guidance about what people had to do to comply with it, or if the authority did not put up notices or signs approved by the Department for Transport, the authority would be taken to court very quickly and would be acting improperly and unfairly. Concerning Clause 12(3)(b) in particular, not to require the adjudicator to give guidance on,

“steps that large retailers need to take … to comply with the … Code”,

seems an offence against natural justice. I apologise for breaking my long silence but of the many things we have discussed, this is the one where I hope that my noble friend will listen to my noble friends Lord Howard of Rising and Lord Eccles and the noble Lord, Lord Browne, who is opposite.

[Baroness Wilcox]

My Lords, the guidance provided by the adjudicator will help to ensure that all interested parties have a proper understanding of what they can expect of the adjudicator. Several noble Lords have brought forward amendments on what should be included in the guidance or on how that guidance should be produced.

With regard to the amendment moved by my noble friend Lord Eccles, the adjudicator will already have to publish guidance on how he or she will decide which enforcement powers, if any, to use. The adjudicator will also have powers to provide more specific guidance on how exactly he or she will go about requiring a retailer in breach of the code to publish information. However, I do not believe that the adjudicator should have to publish guidance on how he or she will approach the publication of information before such investigations can be started, especially as the approach to publication might be dependent on what breach is discovered. We must balance the need for retailers and suppliers to be informed of the principles under which the adjudicator is working with the need for the adjudicator to be able to start working promptly.

The noble Lord, Lord Howard of Rising, has tabled two amendments that I would like to address. The first is on the requirement for the adjudicator to publish guidance on a range of matters set out in Clause 12(3). Here I note that the requirement to publish guidance in Clause 12(1) is focused on specific issues, and under Clause 12(5) the requirement to publish information is given the context of a specific timetable. The adjudicator should be required to publish guidance, and he or she has to. Clause 12(1) states:

“The Adjudicator must publish guidance about —

(a) the criteria that the Adjudicator intends to adopt in deciding whether to carry out investigations;

(b) the practices and procedures that the Adjudicator intends to adopt in carrying out investigations; and

(c) the criteria that the Adjudicator intends to adopt in choosing whether to use the enforcement powers and which ones”.

While other guidance is valuable, it is not clear what would be achieved by a general requirement to publish guidance on broad topics such as the application of any provision of the code. Rather, these overarching topics are intended to indicate likely areas of guidance and ensure that the adjudicator can give guidance when the need arises.

Regarding my noble friend’s second amendment, guidance can relate to a wide range of the adjudicator’s activities and functions. It would be inappropriate to include a requirement to consult retailers without equivalent requirements to consult supplier representatives and other interested parties, which would create further bureaucracy, something that I am sure we would all try to avoid. This change is not necessary, given that the Bill already requires the adjudicator to consult any person whom he or she considers appropriate. I hope that that is helpful to noble Lords and I ask my noble friend to withdraw his amendment.

--- Later in debate ---

[Lord True]

My Lords, I apologise that I was not able to be present at Second Reading because of a local authority meeting. I am also sorry to detain the Committee on an issue that is not solely related to this Bill at this late hour. However, I hope, given the length of the proceedings and that it will take a little time to develop my argument, that Members of the Committee will be indulgent. It is the first opportunity that we have had to comment in detail on a matter that I understand is intended by some to be a pilot to many—if not all—Bills in future. I refer to so-called plain English—or, rather, those cheery questions in italics added above the normal side headings in Bills. My noble friend Lady Byford said at Second Reading, at col. 742 of Hansard on 22 May, that she found these headings “folksy” and not very helpful. The noble Lord, Lord Knight of Weymouth, said at col. 760 that he rather liked them and found that they helped clarity. I do not think that they help clarity.

I tabled amendments to remove Clauses 19 and 21 because I was advised by the Public Bill Office that this was the only way that a Member could raise this question and I did not want to hold up consideration of the rest of the Bill. However, I think that it merits some attention. I have no idea where these new headings come from. I have seen that they are a pilot for plain English legislation, but it seems to me that they must emanate from some quite high-up person in government—one of those well meaning men or women with time on their hands and clearly unworldly enough to think that the public might want to read Bills while sitting alongside me on what I hope will be the 7.33 to Twickenham.

As I was not able to speak at Second Reading, I gave my noble friend Lady Wilcox notice that I would question this approach. I did not want her to worry that by opposing Clause 19 I was opposing the whole Bill—whatever I think of the Bill, that is not my aim. My noble friend, with typical courtesy, sent me a swift reply. She told me that the intention was to make legislation more accessible to the public. Her letter referred to the demands of accessibility. I am not sure who they are coming from, but once again I see the smiley face of the high-up person in government come up before my eyes. My noble friend was kind enough not to dismiss my fear that there might be issues of logical consistency, questions on the interpretation of parliamentary intent and, indeed, the risk of value judgments that could emerge if this process spreads. I will illustrate briefly what I mean.

The heading above Clause 19 reads:

“How is the Adjudicator funded?”.

I think that means “funding” in plain English, substituting one word for the well meaning, accessible five.

However, that is not my main point. How many hours in this Committee and others do we spend debating “shall”, “may” or “must” amendments? Big questions turn on those words, and Parliament rightly considers very carefully the appropriateness of each. As regards this clause, the noble Lord, Lord Borrie, has suggested “must” for “may” in line 5; the noble Lord, Lord Knight of Weymouth, has suggested “shall” for “may”; and my noble friend Lord Howard of Rising has just suggested a “must” for “may”. I am not taking a stand on any of those debates.

The Bill is clearly drafted with a “may” in the funding power it affords to the adjudicator. It implies that he did not necessarily take a levy; nor, indeed, need the Secretary of State give consent, grants or loans. Yet the accessible heading says:

“How is the Adjudicator funded?”—

and not “How may the Adjudicator be funded?”. Some might ask, what is the intention of the Government or Parliament? Is it that he will be funded come what may—as the heading implies—or that he may secure funding, as the text of the Bill suggests? I think this is a circle that you can square.

However, we in Parliament do not have the power to amend such headings; that is why I have had to table a clause stand part amendment rather than suggest leaving out “is” and putting in “may”. To my knowledge, presently the courts do not construct any arguments on the basis of descriptive headings in a Bill. But when a new practice comes into the writing of law—and in Bills more high-profile than this—could some creative lawyers bear to stand idly by? What happens when, as here, a heading says that something “is to be done” and the Bill says it “may be done”?

[Lord De Mauley]

I hate to intervene on my noble friend. Perhaps it would be going too far to suggest that he is verging on a Second Reading speech, which I would not want to do that. I happen to know that my noble friend has some quite comforting words to give that might enable him to abbreviate his speech on this clause stand part debate.

[Lord Browne of Ladyton]

Perhaps the noble Lord will allow me to interrupt him, the comfort is to be found if he simply looks at it. The heading applies to Clauses 19 and 20, so the funding that comes from the public purse and the Secretary of State is encompassed under this heading. This is how the adjudicator is to be funded.

[Lord True]

My Lords, I hear what my noble friend says, and I am conscious that everybody needs to go. It is a great pity when a Member wishes to raise a point of substance on the way in which law is written—something that this House is here to deal with—he is very swiftly interrupted by a member of his Front Bench. I will try to accelerate my remarks, having been patient in this Committee.

I hear what the noble Lord, Lord Browne, says, but to answer his point, let us look at the heading on page 5, line 21:

“How is the Adjudicator supervised?”.

That smothers in obscurity the power to abolish the adjudicator in Clause 16. Only Clause 15 is about supervision, yet this Committee has been concerned about abolition. What value judgment is this, when the Bill highlights supervision and passes over abolition?

Above Clause 21, the heading reads:

“Will this law mean other changes to the law?”,

which I will now speak to. This is a nonsense, because when the Bill is commenced what is in Clause 21 will already be law, so that will just lie on the Bill as an otiose and rather foolish idea.

Finally, I will give one more example before I accept the strictures and sit down. However, I will, having been made to sit down, return to this matter on Report, and I will also listen very carefully to what my noble friend says. This matter is intended to help electronic access to legislation. If you look at the heading,

“How does the Adjudicator handle information?”,

the normal practice is that when you click on a heading on an electronic screen, the screen shows text starting from the point of the heading. Why, then, does this heading come above Clause 18 and not above Clause 17, which covers the Secretary of State’s right to require information from the adjudicator? Surely, anyone interested in how information is handled should be signposted to that new power for the Executive. Who decided to put the heading there and not above Clause 17, and why can Parliament have no say in the matter?

I will sit down now, but I submit that potentially significant issues are raised by this new practice, and I apologise, after eight and a half hours of proceedings on this, for venturing to speak for eight minutes.

[Baroness Wilcox]

My Lords, this is the first time that I have had occasion to respond to the noble Lord, Lord True. I know the noble Lord to be an elegant wordsmith with a passion for our beautiful language, so I would not, therefore, take lightly anything that he has said, even if he feels that he has had to be a little briefer than he would have wished.

Regarding the points that the noble Lord has raised, they are both interesting and technical. They are points on which I will seek legal advice, and I will make sure that when I return he is a happier person than he is today. I am happy to speak to him about this before the next stage of the Bill, and I therefore wonder if he would be prepared to withdraw his amendment.

[Lord Knight of Weymouth]

My Lords, my suggestion to the Minister is that it might be helpful for her to write to the Committee, and in particular to address the very valid point that the noble Lord, Lord True, has raised; namely, that Parliament cannot amend these words. I am happy with the words in this Bill, but if this is a pilot, it would be interesting to hear the views of those conducting the pilot as to whether any consideration has been given to us being able to amend those words.

[Lord True]

I thank my noble friend and other noble Lords, in particular the noble Lord, Lord Knight of Weymouth. It is reasonable for a parliamentarian to raise a point of principle in relation to law-making at the first opportunity that he has. I am grateful for the indulgence of the Committee. As I said, I do not necessarily think that some of these are clear-cut cases, but there is enough doubt and uncertainty raised by this procedure. A parliamentarian must place on record in Hansard for the attention of Members of both Houses something that potentially affects the way in which Parliament is able to deal with legislation. With those comments, I beg leave to withdraw my opposition to the clause and will not oppose the Question that Clause 21 stand part.

Clause 19, as amended, agreed.