Previous Next

Contents page 1-15 15- Last page

A

BILL

[AS AMENDED IN GRAND COMMITTEE]

TO

Set up a Groceries Code Adjudicator with the role of enforcing the Groceries
Code and encouraging compliance with it.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Introduction

1 The Adjudicator

There is to be a Groceries Code Adjudicator (see Schedule 1).

How does the Adjudicator arbitrate disputes?

2 5Arbitration

(1) If a supplier refers a dispute to arbitration under the Groceries Supply Order,
the Adjudicator must either—

(a) arbitrate the dispute; or

(b) appoint another person to arbitrate.

(2) 10If a large retailer refers a dispute to arbitration under a supply agreement, the
Adjudicator may accept appointment as the arbitrator.

3 Information about arbitration

(1) If the Adjudicator appoints another person as arbitrator under section 2(1)(b),
the Adjudicator may require the arbitrator, or a party to the dispute, to provide
15information to assist the Adjudicator in carrying out functions under this Act.

(2) The Adjudicator may enforce the requirement to provide information by
bringing civil proceedings to obtain—

Groceries Code Adjudicator BillPage 2

(a) in England and Wales or Northern Ireland, an injunction; or

(b) in Scotland, an order for specific performance under section 45 of the
Court of Session Act 1988.

How does the Adjudicator carry out investigations and enforce their findings?

4 5Investigations

(1) The Adjudicator may investigate whether a large retailer has broken the
Groceries Code if the Adjudicator has reasonable grounds to suspect that—

(a) the retailer has broken the Code; or

(b) the retailer has failed to follow a recommendation made under
10section 7.

(2) For powers to require a person to provide information, see Schedule 2.

(3) The Adjudicator may not carry out an investigation until the guidance
required by section 12(1) has been published.

5 Investigation reports

(1) 15Following an investigation the Adjudicator must—

(a) publish a report on the outcome of the investigation; and

(b) consider whether to use any of the enforcement powers mentioned in
section 6.

(2) An investigation report must, in particular, specify—

(a) 20any findings that the Adjudicator has made; and

(b) any action that the Adjudicator has taken or proposes to take.

(3) It is not necessary for an investigation report to identify the retailer concerned.

(4) If a retailer is identified in a report, the retailer must have been given a
reasonable opportunity to comment on a draft of the report before publication.

6 25Investigations: forms of enforcement

If, as a result of an investigation, the Adjudicator is satisfied that a large retailer
has broken the Groceries Code, the Adjudicator may take one or more of the
following enforcement measures—

(a) make recommendations;

(b) 30require information to be published;

(c) impose financial penalties.

7 Investigations: enforcement using recommendations

(1) If the Adjudicator chooses to enforce through making recommendations, that
means recommending what the large retailer should do in order to comply
35with the Groceries Code.

(2) The Adjudicator must monitor whether a recommendation has been followed.

(3) For powers to require a person to provide information, see Schedule 2.

Groceries Code Adjudicator BillPage 3

8 Investigations: enforcement using requirements to publish information

(1) If the Adjudicator chooses to enforce through requiring information to be
published, that means requiring the large retailer to publish information
relating to the investigation.

(2) 5The publication requirement is imposed by giving written notice to the large
retailer specifying—

(a) what information is to be published;

(b) how it must be published; and

(c) the time by which it must be published.

(3) 10The Adjudicator may enforce the requirement to publish information by
bringing civil proceedings to obtain—

(a) in England and Wales or Northern Ireland, an injunction or any other
appropriate remedy or relief; or

(b) in Scotland, an order for specific performance under section 45 of the
15Court of Session Act 1988 or any other appropriate remedy or relief.

9 Investigations: enforcement using financial penalties

(1) The Adjudicator may enforce through imposing financial penalties only if an
order made by the Secretary of State is in force authorising the Adjudicator to
do so (see Schedule 3).

(2) 20If the Adjudicator chooses to use this method of enforcement, that means
imposing a financial penalty on the large retailer.

(3) The financial penalty is imposed by giving the large retailer written notice
specifying—

(a) the grounds for imposing the penalty;

(b) 25the amount of the penalty; and

(c) the period within which it must be paid.

(4) The large retailer may appeal against the imposition of a financial penalty or
its amount—

(a) to the High Court, in England and Wales or Northern Ireland; or

(b) 30to the Court of Session, in Scotland.

(5) Financial penalties under this section are recoverable by the Adjudicator as a
debt.

(6) Financial penalties received by the Adjudicator must be paid into the
Consolidated Fund.

10 35Recovery of investigation costs

(1) The Adjudicator may require a large retailer to pay some or all of the costs of
an investigation (including any costs incurred in exercising the enforcement
powers) if satisfied that the retailer has breached the Groceries Code.

(2) The Adjudicator may require a person to pay some or all of the costs of an
40investigation if the Adjudicator carried out the investigation as a result of a
complaint by the person which, the Adjudicator is satisfied, was vexatious or
wholly without merit.

Groceries Code Adjudicator BillPage 4

(3) A requirement to pay costs is imposed by giving written notice specifying—

(a) the grounds for imposing the requirement to pay costs;

(b) how much is to be paid; and

(c) by when the costs are to be paid.

(4) 5A person required to pay costs under this section may appeal against the
imposition of the requirement or the amount to which it relates—

(a) to the High Court, in England and Wales or Northern Ireland; or

(b) to the Court of Session, in Scotland.

(5) Costs required to be paid under this section are recoverable by the Adjudicator
10as a debt.

What advice, guidance and recommendations does the Adjudicator give?

11 Advice

The Adjudicator may give advice on any matter relating to the Groceries Code
to suppliers or large retailers.

12 15Guidance

(1) 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
20carrying out investigations; and

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

(2) In addition, the Adjudicator may publish guidance about the practices and
procedures that the Adjudicator intends to adopt in carrying out other
25functions.

(3) The Adjudicator may publish guidance about—

(a) the application of any provision of the Groceries Code;

(b) steps that large retailers need to take in order to comply with the
Groceries Code;

(c) 30any other matter relating to the Groceries Code.

(4) Before publishing guidance under this section the Adjudicator must consult
any persons he or she thinks appropriate.

(5) The Adjudicator must publish the first guidance under subsection (1)(a), (b)
and (c) within 6 months beginning with the day on which section 1 comes into
35force.

(6) Where there is any guidance in force under this section, the Adjudicator must
take account of it in carrying out functions.

13 Recommendations to Office of Fair Trading

If the Adjudicator considers it appropriate for any changes to be made to the
40Groceries Code, he or she must recommend them to the Office of Fair Trading.

Groceries Code Adjudicator BillPage 5

What are the Adjudicator’s reporting requirements?

14 Annual report

(1) After the end of each reporting period the Adjudicator must prepare and
publish a report describing what the Adjudicator has done during the period.

(2) 5The report must include a summary of—

(a) disputes referred to arbitration under the Groceries Supply Order;

(b) investigations carried out by the Adjudicator; and

(c) cases in which the Adjudicator has used the enforcement measures
mentioned in section 6.

(3) 10If the Adjudicator has made recommendations under section 7, the report must
include an assessment of whether they have been followed.

(4) The report must set out any recommendations that the Adjudicator has made
to the Office of Fair Trading for changes to the Groceries Code.

(5) As well as publishing the report, the Adjudicator must send a copy to—

(a) 15the Secretary of State; and

(b) the Office of Fair Trading.

(6) In this section “reporting period” means—

(a) the period beginning with the day on which section 1 comes into force
and ending with the following 31 March; and

(b) 20each successive period of 12 months.

How is the Adjudicator supervised?

15 Review of Adjudicator and guidance from Secretary of State

(1) The Secretary of State must review the Adjudicator’s performance for each
review period.

(2) 25The first review period is the period ending on the first 31 March that is at
least 2 years after section 1 comes into force.

(3) Subsequent review periods are each successive period of 3 years after the first
review period.

(4) A review must, in particular—

(a) 30consider how much the Adjudicator’s powers have been exercised; and

(b) assess how effective the Adjudicator has been in enforcing the
Groceries Code.

(5) If an order has not yet been made under subsection (10), the review must also
consider whether it would be desirable to make an order under that subsection.

(6) 35As soon as practicable after a review period, the Secretary of State must—

(a) publish a report of the findings of the review for that period; and

(b) lay a copy of the report before Parliament.

(7) In carrying out a review, the Secretary of State must consult—

(a) the Adjudicator;

(b) 40the Competition Commission;

Groceries Code Adjudicator BillPage 6

(c) the Office of Fair Trading;

(d) the retailers mentioned in Article 4(1)(a) and (b) of the Groceries
Supply Order;

(e) one or more persons appearing to the Secretary of State to represent the
5interests of suppliers;

(f) one or more persons appearing to the Secretary of State to represent the
interests of consumers; and

(g) any other person the Secretary of State thinks appropriate.

(8) As a result of the findings of a review, the Secretary of State may give guidance
10to the Adjudicator about any matter relating to the Adjudicator’s functions.

(9) The Adjudicator is to take account of the guidance in carrying out functions.

(10) The Secretary of State may by order provide that the following section is to be
inserted after section 4 if, as a result of the findings of a review, the Secretary
of State thinks that it would be desirable to do so—

4A 15Information that may be considered when deciding whether to
investigate

(1) In deciding whether to carry out an investigation the Adjudicator may
consider only—

(a) information provided by a supplier;

(b) 20information that is publicly available;

(c) information provided by a person who obtained the
information at a time when the person was a worker employed
by the retailer in question or a company in the same group;

(d) information provided by the retailer in question about whether
25it has complied with a recommendation made under section 7.

(2) When carrying out an investigation the Adjudicator may consider any
information that it seems appropriate to consider and is not limited to
considering the information mentioned in subsection (1).

(3) In this section—

16 35Transfer of Adjudicator functions and abolition etc

(1) The Secretary of State may by order transfer some or all of the Adjudicator’s
functions to a public body and in deciding whether to do so must take account
of the desirability of—

(a) increasing efficiency, effectiveness and economy in the exercise of
40public functions; and

(b) ensuring appropriate accountability to Ministers in the exercise of
public functions.

(2) The Secretary of State may by order abolish the Adjudicator—

(a) if, as a result of the findings of a review, the Secretary of State is
45satisfied that the Adjudicator has not been sufficiently effective in

Groceries Code Adjudicator BillPage 7

enforcing the Groceries Code to justify the continued existence of an
Adjudicator;

(b) if, as a result of the findings of a review, the Secretary of State is
satisfied that it is no longer necessary for there to be an Adjudicator to
5enforce the Groceries Code;

(c) if the Secretary of State transfers all of the Adjudicator’s functions
under subsection (1); or

(d) if the Groceries Supply Order is revoked and not replaced.

(3) An order under subsection (2) may include provision transferring the
10Adjudicator’s property, rights and liabilities.

(4) The Secretary of State may by order amend this Act in consequence of any
order amending or replacing the Groceries Supply Order.

(5) For the purpose of giving effect to a transfer of functions or to the abolition of
the Adjudicator an order under this section may amend or repeal this Act or
15any other enactment.

17 Information to Secretary of State

(1) The Secretary of State may require the Adjudicator to provide information to
assist the Secretary of State in carrying out functions under this Act.

(2) The requirement to provide information to the Secretary of State does not
20override section 18.

How does the Adjudicator handle information?

18 Confidentiality

(1) The Adjudicator may not make an unauthorised disclosure of information
relating to an arbitration under the Groceries Supply Order or under a supply
25agreement if—

(a) the information identifies a party to the arbitration; or

(b) the Adjudicator thinks that the identity of a party to the arbitration
could be deduced from it.

(2) The Adjudicator may not make an unauthorised disclosure of information that
30the Adjudicator thinks might cause someone to think that a particular person
has complained about a large retailer failing to comply with the Groceries
Code.

(3) For the purposes of this section a disclosure of information is unauthorised
unless—

(a) 35the Adjudicator has obtained the required consent;

(b) the disclosure is required for the purpose of an EU obligation; or

(c) the disclosure is required, under rules of court or a court order, for the
purposes of legal proceedings of any description.

(4) The required consent is—

(a) 40in the case of information to which subsection (1) applies, the consent
of the parties to the arbitration;

(b) in the case of information to which subsection (2) applies, the consent
of the person.

Groceries Code Adjudicator BillPage 8

(5) The prohibitions contained in this section are in addition to any that apply by
virtue of Part 9 of the Enterprise Act 2002.

How is the Adjudicator funded?

19 Levy funding

(1) 5The Adjudicator may require the specified retailers to pay a levy towards the
Adjudicator’s expenses.

(2) Before imposing a levy the Adjudicator must obtain the Secretary of State’s
consent.

(3) In deciding the amount of a levy the Adjudicator must take into account any
10sums received or expected to be received from other sources.

(4) The Adjudicator may take into account estimated as well as actual expenses.

(5) The amount of a levy must be the same for each of the specified retailers, unless
an order made by the Secretary of State is in force conferring power on the
Adjudicator to require the specified retailers to pay different amounts based on
15criteria broadly intended to reflect the expense and time that the Adjudicator
expects (in the light of previous experience) to spend in dealing with matters
relating to different specified retailers and any subsidiaries.

(6) The Adjudicator must inform each specified retailer of —

(a) the amount of any levy payable by the retailer; and

(b) 20when payments are due.

(7) A levy required to be paid under this section is recoverable by the Adjudicator
as a debt.

(8) The Adjudicator must publish details of levies and an explanation of how the
amounts have been decided.

(9) 25If the Adjudicator has a surplus, the Adjudicator may repay some or all of it to
the specified retailers.

(10) In this section—

20 Payments by Secretary of State

(1) The Secretary of State may make grants or loans to the Adjudicator.

(2) The grants or loans may be subject to conditions (including conditions as to
repayment with or without interest).

Groceries Code Adjudicator BillPage 9

Will this law mean other changes to the law?

21 Amendments and transition

(1) Parliamentary Commissioner Act 1967 (c. 13)1967 (c. 13)
In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc
5subject to investigation) at the appropriate place insert—

(2) House of Commons Disqualification Act 1975 (c. 24)1975 (c. 24)
In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975
(other disqualifying offices) at the appropriate place insert—

(3) Freedom of Information Act 2000 (c. 36)2000 (c. 36)
In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (public
authorities) at the appropriate place insert—

(4) Enterprise Act 2002 (c. 40)Enterprise Act 2002 (c. 40)
In each of Schedules 14 and 15 to the Enterprise Act 2002 (provisions about
disclosure of information) at the appropriate place insert—

Groceries Code Adjudicator Act 2012.

(5)
20Section 161(5) the Enterprise Act 2002 (limitation on variation or revocation of
orders) does not apply to a variation of the Groceries Supply Order made in
consequence of this Act.

(6) Arbitration (Scotland) Act 2010 (asp 1)2010 (asp 1)

Until the Arbitration (Scotland) Act 2010 is in force in relation any to
25arbitrations carried out by the Adjudicator, or a person appointed by the
Adjudicator, that Act applies as if it were in force in relation to those
arbitrations.

Definitions and final provisions

22 Definitions

30In this Act—

23 Orders

(1) 15Orders under this Act are to be made by statutory instrument.

(2) A statutory instrument containing an order under section 9(1) or 16(1) or (2)(a)
or (b) may not be made unless a draft of the instrument has been laid before
and approved by a resolution of each House of Parliament.

(3) Any other statutory instrument under this Act, other than one that contains
20only an order under section 25, is subject to annulment as an instrument to
which section 5(1) of the Statutory Instruments Act 1946 applies.

(4) Orders under this Act may include measures that are consequential,
supplementary, incidental, transitional or transitory.

24 Extent

25This Act extends to—

(a) England and Wales;

(b) Scotland; and

(c) Northern Ireland.

25 Commencement

(1) 30Sections 1 to 21 and the Schedules come into force on whatever day the
Secretary of State by order appoints.

(2) The other provisions of this Act come into force on the day on which this Act
is passed.

(3) An order under subsection (1) may make different provision for different
35purposes.

26 Short title

This Act may be cited as the Groceries Code Adjudicator Act 2012.

Groceries Code Adjudicator BillPage 11

SCHEDULES

Section 1

SCHEDULE 1 The Adjudicator

Status

1 5The Adjudicator is a corporation sole.

2 The Adjudicator carries out functions on behalf of the Crown.

Appointment

3 The Adjudicator is to be appointed by the Secretary of State.

Deputy Adjudicator

4 10The Secretary of State may appoint a Deputy Adjudicator.

5 The Deputy Adjudicator may carry out any of the Adjudicator’s functions.

Term of office etc

6 A person holds and vacates office as the Adjudicator or Deputy Adjudicator
in accordance with the terms of his or her appointment, but—

(a) 15a person’s initial term of office may not be more than four years;

(b) a person may be appointed for one or two further terms of office;

(c) a further term may not be more than three years;

(d) a person may resign by giving written notice to the Secretary of State;
and

(e) 20the Secretary of State may dismiss the person if satisfied that the
person is unable, unwilling or unfit to perform his or her functions.

7 Service as the Adjudicator, or as the Deputy Adjudicator, is not service in the
civil service of the state.

Remuneration

8 (1) 25The Adjudicator may pay to or in respect of the person holding office as the
Adjudicator or the Deputy Adjudicator—

(a) remuneration;

(b) allowances;

(c) sums by way of or in respect of pensions.

(2) 30The Secretary of State must determine rates and eligibility criteria for the
payments.

Groceries Code Adjudicator BillPage 12

Staff

9 (1) The Adjudicator may make arrangements with the Secretary of State or any
other public authority for staff to be seconded to the Adjudicator.

(2) The arrangements may include provision for payments by the Adjudicator.

5Conflicts of interest

10 (1) The Adjudicator must make procedural arrangements for dealing with any
conflict of interest affecting—

(a) the Adjudicator;

(b) the Deputy Adjudicator; or

(c) 10staff working for the Adjudicator.

(2) The Adjudicator must consult the Secretary of State before making or
revising the arrangements.

(3) The Adjudicator must publish a summary of the arrangements.

11 (1) This paragraph applies if both the Adjudicator and the Deputy Adjudicator
15are unable to act in relation to a matter because of conflicts of interest.

(2) The Secretary of State must appoint a person to act as a Deputy Adjudicator
if asked to do so by the Adjudicator.

(3) An acting Deputy Adjudicator may carry out any of the Adjudicator’s
functions for the purpose of dealing with the matter in respect of which he
20or she is appointed.

(4) A person holds and vacates office as an acting Deputy Adjudicator in
accordance with the terms of his or her appointment (subject to sub-
paragraph (5)).

(5) Paragraphs 6(d) and (e) and 7 and 8 apply to an acting Deputy Adjudicator
25as they apply to the Deputy Adjudicator.

Validity of acts

12 A defect in appointment does not affect the validity of things done by—

(a) the Adjudicator;

(b) the Deputy Adjudicator; or

(c) 30an acting Deputy Adjudicator.

Application of seal and proof of documents

13 The application of the Adjudicator’s seal must be authenticated by the
signature of—

(a) the Adjudicator; or

(b) 35some other person who has been authorised by the Adjudicator for
that purpose (whether generally or specially).

14 A document purporting to be duly executed under the seal—

(a) is to be received in evidence; and

(b) is to be treated as duly executed unless the contrary is shown.

Groceries Code Adjudicator BillPage 13

Accounts

15 (1) The Adjudicator must keep proper accounts and proper records in relation
to the accounts.

(2) For each financial year the Adjudicator must prepare a statement of accounts
5in respect of that financial year.

(3) The statement must be in whatever form the Secretary of State directs.

(4) The Adjudicator must send a copy of the statement, within a period
specified by the Secretary of State, to—

(a) the Secretary of State; and

(b) 10the Comptroller and Auditor General.

(5) After the Adjudicator has sent a copy of a statement of accounts to the
Comptroller and Auditor General, the Comptroller and Auditor General
must—

(a) examine, certify and report on the statement; and

(b) 15send a copy of the certified statement and the report to the Secretary
of State as soon as possible.

(6) The Secretary of State must lay before Parliament a copy of the certified
statement and of the report.

Incidental powers

16 20The Adjudicator may do anything that is calculated to facilitate the carrying
out of the Adjudicator’s functions or is conducive or incidental to the
carrying out of those functions.

Assistance from Office of Fair Trading

17 The Office of Fair Trading may provide staff, premises, facilities or other
25assistance to the Adjudicator (with or without charge).

Exemption from liability for damages

18 (1) The following are exempt from liability in damages for anything done or
omitted in the exercise or purported exercise of their functions—

(a) the Adjudicator;

(b) 30the Deputy Adjudicator;

(c) acting Deputy Adjudicators;

(d) staff working for the Adjudicator.

(2) But sub-paragraph (1) does not apply—

(a) if the act or omission is shown to have been in bad faith; or

(b) 35so as to prevent an award of damages made in respect of an act or
omission on the ground that the act or omission was unlawful as a
result of section 6(1) of the Human Rights Act 1998.

Groceries Code Adjudicator BillPage 14

Sections 4 and 7

SCHEDULE 2 Information powers

1 (1) The Adjudicator may, for the purposes of an investigation, require a
person—

(a) 5to provide documents in the person’s possession or control;

(b) to provide other information in the person’s possession or control.

(2) The Adjudicator may, for the purposes of monitoring whether a large
retailer has followed a recommendation made under section 7, require the
retailer—

(a) 10to provide documents in the retailer’s possession or control;

(b) to provide other information in the retailer’s possession or control.

(3) A requirement imposed under this paragraph may include a requirement
for information to be provided orally.

(4) A requirement is imposed by giving a written notice specifying—

(a) 15to whom the information is to be provided;

(b) where it is to be provided;

(c) when, or the time by which, it is to be provided;

(d) the form and manner in which it is to be provided.

(5) A notice must also explain the possible consequences of failing to comply.

(6) 20If a notice requires a particular individual to attend at a place that is more
than 10 miles from his or her place of residence the Adjudicator must offer
to pay necessary travelling expenses.

(7) A person may not be required under this paragraph to do anything that the
person could not be compelled to do in civil proceedings before—

(a) 25the High Court in England and Wales or Northern Ireland; or

(b) the Court of Session in Scotland.

2 (1) It is an offence for a person intentionally to fail to comply with a requirement
under this Schedule.

(2) It is a defence for a person charged with that offence to prove that there was
30a reasonable excuse for the person’s failure.

3 It is an offence for a person knowingly to provide false information in
response to a requirement under this Schedule.

4 A person guilty of an offence under this Schedule is liable—

(a) on summary conviction, to a fine not exceeding the statutory
35maximum;

(b) on conviction on indictment, to a fine.

Groceries Code Adjudicator BillPage 15

Section 9

SCHEDULE 3 Order conferring power to impose financial penalties

1 The Secretary of State may make an order under section 9 authorising the
Adjudicator to impose financial penalties only if the Secretary of State thinks
5that the Adjudicator’s other powers are inadequate.

2 The order must specify the maximum penalty that may be imposed or how
the maximum penalty is to be calculated.

3 The order may include further measures about procedural matters.

4 The order may require the Adjudicator to publish guidance about the
10criteria the Adjudicator intends to adopt in deciding the amount of a
financial penalty.

5 The order may require the Adjudicator to consult before publishing
guidance about financial penalties.

6 Before making an order, the Secretary of State must consult—

(a) 15the Adjudicator;

Previous Next

Contents page 1-15 15- Last page