Lord True
Main Page: Lord True (Conservative - Life peer)Groceries Code Adjudicator Bill [HL]
Lord True Excerpts
Lord Howard of Rising
My Lords, this group of amendments is aimed at making it compulsory for the adjudicator to give advice to those seeking it from him. At the moment, there is no obligation. There is a strong argument that he should give advice. The opposing argument has been that he might get involved in frivolous requests if it is compulsory, and that that would mean unnecessary expense. A solution to that would be to make it compulsory to give advice to the large retailers which have to live by this code. They pay his expenses, so they are unlikely to incur unnecessary expense. Perhaps the Minister will consider this point and come back to us at Third Reading. I beg to move.
Lord True
My Lords, I intervened briefly in Grand Committee to support my noble friend on part of the amendments in this group. I think that he has already implied the following point in what he said. Clause 12(3) states:
“The Adjudicator may publish guidance about … steps that large retailers need to take in order to comply with the Groceries Code”.
I believe that the adjudicator must give such guidance; otherwise the position would be nonsensical. In Committee I gave the possible example of my local authority publishing a parking order but not putting up signs to say during which hours the parking scheme would operate and with people having to apply to find out that information.
With respect to my noble friend, I think that his amendments are probably rather widely drafted. Looking at the phrase, “may publish guidance about any other matter relating to the groceries code”, I can understand why my noble friend on the Front Bench might want to resist it. However, it might be a fruitful course, between now and Third Reading, if the Government thought about the more confined area to which my noble friend referred. It would seem to offend against natural justice not to tell people the steps they must take to comply with a code which could lead to their being fined, named and shamed or whatever. I hope the Minister will consider that specific point which arises from my noble friend’s Amendment 22 in this group.
Baroness Wilcox
My Lords, I have sympathy for the spirit of all three amendments. On Amendments 21 and 22, we certainly consider that an important role of the adjudicator will be to provide advice and guidance. That is why we have included these clauses. It is clearly better if the adjudicator can encourage compliance with the code through light-touch means, such as advice, rather than by enforcing it after a breach has been committed through sanctions. However, as I think my noble friend Lord Howard of Rising would concede, we cannot make these provisions mandatory. The adjudicator must be able to prioritise his or her workload and cannot be required to give advice in all circumstances to any of the 10 retailers or thousands of suppliers who might have a question. Even limiting the “must” to the retailers, could be open to abuse by one retailer at the expense of others.
I ask noble Lords to keep in mind here that the adjudicator will be a public authority and will be required to act reasonably in responding to requests for advice. In that context, some discretion for the adjudicator is appropriate. Equally, while guidance is crucial, I would emphasise that the adjudicator is already required under Clause 12(1), to publish guidance about how he or she will carry out his or her core operations. It would not be meaningful to have a mandatory requirement for the adjudicator to publish guidance on “any other matter relating to the groceries code”. Again, there has to be some flexibility for the adjudicator.
On the other hand, the Government certainly consider that the adjudicator would normally answer reasonable requests, and should normally provide advice where this would aid in the core objective of encouraging compliance with the code. Similarly, sufficient guidance should be provided to ensure that retailers and suppliers have the clarity they need to interact effectively with the adjudicator. This is similar to the expectation that we would have of a local authority. If the adjudicator was not acting appropriately in giving advice and guidance, I am sure that the Secretary of State would take steps to remedy this by issuing guidance to the adjudicator under Clause 15(8). The adjudicator has a statutory obligation to take account of such guidance in carrying out his or her functions, which I hope offers some reassurance to my noble friend Lord Howard.
On Amendment 24, although again I can sympathise with the principle behind the amendment, I do not consider it necessary. This is because the Bill, in Clause 12(4), already requires the adjudicator to consult any persons whom he or she thinks appropriate before publishing guidance. In the vast majority of circumstances this would include the retailers. In the unlikely event that the adjudicator did not consult the retailers before publishing guidance, in a case where it was clear that he or she should have done so, there would be the possibility of judicial review. The adjudicator will be very aware of this, meaning that Amendment 24 is not necessary. I would, therefore, ask the noble Lord to withdraw his amendment.
Lord True
My Lords, I have taken the unusual step of tabling an amendment to transpose two clauses—the effect of which I will come to shortly—to draw the attention of the House to a point that I was not able to raise at Second Reading because I was on local authority business. It was discussed briefly in Grand Committee, but proceedings were curtailed. I do not intend to detain the House long on the matter, but it gives rise to important issues.
I refer to the manner of writing sub-headings in italics, “How does the Adjudicator arbitrate disputes? … How does the Adjudicator carry out investigations?”,
and so on. This is a new way of writing Bills which is reminiscent of the “frequently asked questions” pages on government websites. I tried to use one such page on the HMRC site the other day and was very glad after 10 minutes of struggling to get through to a nice lady who was able to help me.
I was told, first, that there was no discussion with the House about the new way of writing Bill sub-headings. When I asked the House authorities, they said that it had not been discussed and, since the drafting of the Bill was the responsibility of the noble Lord in charge—in this case, a Minister of the Crown—it would not fall within the terms of reference of the Procedure Committee of your Lordships’ House. The Public Bill Office confirmed that it was not possible to amend such sub-headings. My noble friend circulated a very helpful note to noble Lords demonstrating that the Government can contrive to amend the sub-headings in response to issues that are raised in Parliament. That is by grace and favour of the Executive, not by the will or desire of Parliament.
I am suspicious of these sub-headings for several reasons. The first argument put to us is that they are in plain English. I do not think that many of them are. On page 2, line 3, the heading is, “How does the Adjudicator carry out investigations and enforce their findings?”. That is 11 words, whereas “Investigation and enforcement”—which was the old way of doing things and is what is meant—is three words. On line 11 of page 4, the heading is, “What advice, guidance and recommendations does the Adjudicator give?”. That is nine words. Once the sub-heading would have been, “Advice and guidance”. That would be plain English. There are many other examples in the Bill, but I will not take the House through them.
Once we start changing the way in which legislation is written, whatever our good intentions there is the risk, in an area where Parliament has little direct control, that we will tend towards more descriptive writing. Noble Lords will remember that in the late 1990s we had rather more exciting titles to legislation, with “stakeholders” starting to appear in the gracious Speech. There is a risk that value judgments could interpose.
If the sub-headings are intended to be plain English traffic lights or signals to help the public find key matters in Bills, Parliament ought to have some responsibility for them. In Committee, I gave the example of the sub-heading, “How is the Adjudicator supervised?”, which covers the issue of abolition that noble Lords have just discussed. If you are slipping through these sub-headings, you would not find it. Who decides to highlight these things? There are clear difficulties.
Before Clause 14 there is the sub-heading, “What are the Adjudicator’s reporting requirements?”. Again, if a member of the public were accessing the Bill by means of these signposts, they would go to the sub-heading, but the text covers only Clause 14, which concerns the annual report that the adjudicator must publish. However, there are many other reporting requirements on the adjudicator in the Bill. The noble Lord, Lord Browne of Ladyton, won a victory in respect of one of the reports that the adjudicator has to present. The sub-heading goes much wider than the subject of the annual report covered in Clause 14. A real plain English heading for Clause 14 would be the good old, “Annual report”. Why not choose that? Why have this new and potentially misleading wording? I realise that these matters may be beyond my noble friend the Minister, who has been incredibly helpful in responding to them, so I hope that the powers-that-be will think again about the misleading effect that some of these sub-headings might have, or the incomplete information that might be given.
I will not repeat the arguments I gave in Committee about logical inconsistency. I understand that my noble friend has responded positively in relation to the sub-heading on line 1 of page 9: “Will this law mean other changes to the law?”. This is logical nonsense. When the Act comes into effect, the amendments to other legislation will already be law, so the sub-heading is totally illogical. I understand from my noble friend that it is proposed to rethink that. In Committee we discussed the sub-heading on line 3 of page 8: “How is the Adjudicator funded?”. However, the clauses covered, Clause 19 and 20, both speak in terms of how the adjudicator “may” be funded; for example:
“The Adjudicator may require … a levy”,
or:
“The Secretary of State may make grants”.
The new-style sub-heading is illogical because it uses “is” and gets into “may”/“must” arguments.
I agree with the Government that we should keep the law as plain as possible, using short, simple English. The more words you use, the more risk there is of inconsistency. The confusion that can be caused by the placing of headings is illustrated by my amendment, which proposes that Clause 17 should be moved to below Clause 18 because both clauses relate to the handling of information by the adjudicator and the sub-heading is: “How does the Adjudicator handle information?”. I understand that my noble friend has an answer to that.
I will bring my remarks to a conclusion, but we seem to be straying into unnecessary territory. If the Government—the masters of plain English—wish to give the public new signposts to find their way around legislation, let us not complicate the face of legislation; why not have a separate, short document, which may be available electronically? If people wanted to find out what the adjudicator’s reporting requirements were, you could have brief references to Clause 5, Clause 14 and so on, and people could be signposted around the Bill. The way it is done now just leads you to one clause, which gives an incomplete answer.
If this well meaning approach is intended to go forward, for it to be really accessible it should be done separately, not on the face of legislation. If Parliament is not going to be able to amend these sub-headings—and it never has been able to—we should leave the Bill absolutely simple, which would not risk any question of executive value judgments or misleading placement of sub-headings. The pursuit of plain English guidance could be done in a short companion to the legislation, if that is required. The more we go to electronic access to legislation, the more these kinds of sub-headings will become important.
I hope that my noble friend is going to give a favourable response on the sub-headings that will justify the points that I have made. Obviously I do not intend to press this matter to a Division but it affects both Houses of Parliament, and it is reasonable to bring it to the attention of Parliament, given that this is the first Bill in which this new manner of writing legislation has arisen. I beg to move.
Lord Howard of Rising
My Lords, I support my noble friend. While he was speaking, I looked through these new italicised sub-headings and was rather entertained. The first one is “How does the Adjudicator arbitrate disputes?”, and the next word down is “Arbitration”. The second sub-heading is “How does the Adjudicator carry out investigations and enforce their findings?”, and the next word down is “Investigations”. The third sub-heading is “What advice, guidance and recommendations does the Adjudicator give?”, and the next word down is “Advice”. Surely if anything is superfluous, these things are.
Baroness Wilcox
My Lords, I thank the noble Lord, Lord True, for bringing forward this interesting amendment. While we cannot support this specific amendment, I am able to take into account the noble Lord’s broader points about ensuring that sub-headings are accurate and clear.
First, italicised sub-headings in themselves are not a recent innovation. For example, the Slave Trade Act 1873 groups its clauses using italicised sub-headings such as “Seizure of Slave Ships” and “Bounties”. Although the approach to the precise wording of these italicised sub-headings may have changed, the Government have always striven to write in a way that communicates meaning as clearly as possible to the audience of the day. I have placed a note about this in the Library of both Houses.
Turning to the noble Lord’s specific amendment, I believe that Clause 17 should remain under the sub-heading “How is the Adjudicator supervised?”, because the purpose behind allowing the Secretary of State to require information from the adjudicator is to allow him to supervise the adjudicator through triennial reviews. This is quite separate from the vital issue of how the adjudicator should ensure that it upholds confidentiality when handling information, even though it is clear from Clause 17(2) that there is some relationship between these issues.
However, I have been able to take into account the noble Lord’s points concerning the wording of sub-headings. I have raised these concerns with the Public Bill Office, which has agreed to change “How is the Adjudicator funded?” to “How may the Adjudicator be funded?”, and “Will this law mean other changes to the law?” to “Amendments and transition”.
I hope that the noble Lord is content with these changes, and I am sure that the process of considering the amendments and discussing them for this Bill will help ensure careful drafting of similar headings in future Bills. I therefore beg the noble Lord to withdraw his amendment.
Lord True
I thank my noble friend for that response. Rather like the noble Lord, Lord Browne, I should not be churlish when I have a minor victory, as he put it. I do not really see it that way, although I am very grateful for the gracious response of my noble friend the Minister.
The reality is that this style of writing, with question marks, et cetera, is new; it is intended to be new, and when a Government or an Executive make such a change from the traditional, rather arid way of wording these things, it must be construed to be intended to have an effect. That will arouse the interest of other people. I said in Grand Committee, rather fancifully perhaps, that the courts might look at whether this was part of the intention. As the courts, like Parliament, never look at these sub-headings I think that is extremely unlikely. In the course of this debate I believe I have demonstrated that the sub-heading “What are the Adjudicator’s reporting requirements?” above Clause 14 is also nonsense because it does not cover the reports on investigations and so on. I hope my noble friend will take that point to colleagues, because the powers-that-be need to think carefully about this approach.
I am grateful to my noble friend Lord Howard and the noble Lord, Lord Knight of Weymouth, who spoke in this debate. I am interested in the point that the noble Lord, Lord Knight, raised about Private Members’ legislation. It had not occurred to me but it is a significant point. I am also grateful for the support from my noble friend the Duke of Montrose, who made a very sensible suggestion that this signposting could be done to the side of the legislation. In the electronic age it might be much more helpful to do it via the Explanatory Notes or an introduction to the Explanatory Notes. The powers-that-be may want to consider that. I do not wish to detain the House so without more ado I thank the Minister and I beg leave to withdraw my amendment.