Pubs Code and the Adjudicator

Richard Arkless Excerpts

Thursday 14th April 2016 Westminster Hall

[Richard Arkless (Dumfries and Galloway) (SNP)]

It is a pleasure to serve under your chairmanship, Mr McCabe. I add my voice to the congratulations that have been offered to the hon. Member for Leeds North West (Greg Mulholland) on securing the debate, and on his apparent and well documented tenacity over the past few years in keeping the issue at the front of hon. Members’ minds. His comprehensive, detailed and considered speech kicked off an enlightening debate. I must confess that before I attended the Chamber I was struggling to conceive how hon. Members could talk for three hours on this subject; boy, was I wrong about that.

I pay tribute also to the hon. Member for Peterborough (Mr Jackson). Like the hon. Member for Easington (Grahame M. Morris) I found myself agreeing with him more than once or twice, which is a refreshing change. Of course, the hon. Member for Easington, who is no longer in his place, alluded to the concept of loving a pint as something peculiar about Englishness. I might agree with that, but I want to make it clear that he does not have the monopoly on liking a pint, and perhaps I shall relay that to him when I see him catching a fag on the Westminster terrace, over the next week or so.

The hon. Member for West Bromwich West (Mr Bailey) gave us an acute insight into the lengthy process that has been going on for the past few years. I am glad that he got to the bottom—with help from the Minister, of course—of the issues about whether the adjudicator was involved in drafting the code. That clarity was welcome in the circumstances and is helpful for today’s debate.

The hon. Member for York Central (Rachael Maskell) was right to identify confidence in the adjudicator as the crucial thing. If we do not have a regulator who has stakeholders’ confidence, the role may be a bit of a white elephant. I hope that that will not be the result at the end of the process.

The hon. Member for City of Chester (Christian Matheson) made the poignant point that running a pub is a tough job, and I can concur, given that—perhaps disclosing an interest of sorts—I was brought up in a pub. Thankfully it was on the right side of the bar; my parents were entrepreneurs, not overly active socialites. I understand how tough it is to run a pub. Normal practice was that I would barely see my parents for an hour or two each evening, and I did not see them at Christmas and Easter, because the trade moves when people are on holiday. That has a huge impact on family life, which should always be remembered when we think about publicans.

Pubs, codes and adjudicators are devolved to Scotland, so it is not my place to impart to the Minister my views on the loopholes that have been identified, or the code itself. Scotland is consulting on the question at the moment. We are looking and listening and will take on board what happens in this place. However, inequality of arms is a big issue. We can all see how such an inequality of arms would arise in negotiations between a powerful and perhaps wealthy brewery landlord and the tenant. If the need for the code is predicated on that, it seems sensible.

Beyond that, there is the question of the appointment of the adjudicator. I echo what the hon. Member for York Central said: of course Mr Newby may be a very competent, intelligent and capable individual, but that is not the issue. The issue is his position and his history, and whether his career had characteristics leading to a position of conflict. As a former solicitor—the fact that I am a former one is not because of any conflict of interest, I should say—I can say that conflict of interest is always at the forefront of a lawyer’s mind. I always remember the partner at the law firm where I trained, who taught me about conflict of interest. He said, “Richard, look—if it looks like a duck, quacks like a duck and walks like a duck, the chances are it’s a duck.” If, as the hon. Member for Peterborough so vividly set out, there is an appearance of a conflict of interest, that in itself, in my view, is the conflict of interest. There does not need to be a financial interest that pulls Mr Newby from an impartial adjudication position. There just needs to be a history of working for one side or t’other. I urge the Minister to take that on board, given her experience as a barrister. She will no doubt be aware of those points.

My comments have been intentionally brief. If we are to have an adjudicator and a code, I urge the Minister to treat it as essential that they should have the confidence of stakeholders. It does not appear from what I have heard this afternoon that that is the case. I would hope that through the lengthy process that has gone on we would reach a point where everyone would have confidence and the system could work.

--- Later in debate ---

[Anna Soubry]

Does the hon. Member for Sefton Central (Bill Esterson) want to intervene? Let me say a few words and then I will take an intervention.

As the Pubs Code Adjudicator, Mr Newby has a duty to set out arrangements to deal with any specific conflicts of interest. He will do so in the normal way and, as part of that, he will publish a register of interests. Contrary to the British Pub Confederation’s campaign, he has a wealth of experience on rents, rent reviews, lease renewals and landlord and tenant issues. It was that experience that I found particularly attractive in his CV and then when I met and interviewed him, as I did all three of the final candidates.

Mr Newby has also been involved in dispute resolution in those areas as an expert witness, arbitrator and independent expert for many years. In one case he represented a tenant who had significantly overpaid rent to a large pub company. That required sustained effort by Mr Newby to recover the overpaid rent. That is just an example of his work for tenants, certainly not of being in the pocket of large pub companies.

We have had reference to my former profession as a barrister. I do not want to fall out with the hon. Member for Leeds North West, but I do not think he quite remembered what was said. I was trying to make a point about professionals. The hon. Gentleman for—I have forgotten his constituency in Scotland; that is very rude of me.

[Richard Arkless]

Dumfries and Galloway.

[Anna Soubry]

Dumfries and Galloway. Excellent—I know exactly where he represents: Kirkcudbright. He made that point about when he was a solicitor. I do not know what work he did, but the point I was trying make was that certainly at the English Bar, and I think it is the same in Scotland with the advocacy system north of the border, a barrister may act for someone—I will be frank: I have acted for people who have been exceptionally unpleasant, usually because they had been accused of vile offences against children—and put forward their case, but that is not to endorse it in any way. Actually, the barrister might think they are some of the most despicable human beings.

Of course, that is not the position that Mr Newby will have as the Pubs Code Adjudicator. The clue is in the title: he will adjudicate, based on his experience and particularly because he has been able to see both sides of arguments. He brings great skills to the role. He will take up his appointment on 2 May to enforce the pubs code with independence and impartiality.

In answer to the proper comments made by a number of hon. Members, as it happens, on 10 May he will appear at 9.30 am in front of the Business, Innovation and Skills Committee. There is a good debate to be had as to whether public appointees should effectively have their appointments endorsed by Select Committees. I know that some are and some are not, but I do not think this is the time for that debate and I truly do not think that would have made any difference to Mr Newby’s appointment. He will also meet representatives from both sides of the industry in May and I hope that the hon. Member for Leeds North West will be pleased to know that Mr Newby is keen to meet him and representatives of the British Pub Confederation in his first weeks as the Pubs Code Adjudicator.

Today—very soon, I hope—I will place the Government’s response in the Library and lay the pubs code regulations. Time is of the essence, because we now know when the House will prorogue, so to get the pubs code up and running on 27 May we will lay the regulations today.