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Grocery Market Ombudsman Bill
|©Parliamentary copyright||Prepared 11th May 2011|
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Grocery Market Ombudsman Bill
Grocery Market Ombudsman Bill
The Committee consisted of the following Members:
Sarah Davies, Committee Clerk
† attended the Committee
It is a pleasure, Mr. O’Hara, to serve under your chairmanship. I will not detain the Committee too long on the procedural motion, but I wish to thank the Clerk and the Public Bill Office for their professionalism and patience in guiding me through each stage of this private Member’s Bill. The motion is purely to safeguard the passage of the Bill through Committee; I am following advice in placing this motion before the Committee. The Bill has broad support and received a comprehensive debate on Second Reading, as did the money and the Ways and Means resolutions. The timetabling of business in the House for the rest of the Session is, to say the least, ad hoc, so I tabled the motion as a safety net to ensure that the Bill completes its passage through Committee.
The Chair: Before we begin consideration of the Bill, I have a number of preliminary announcements. Some hon. Members have already done so, but if others wish to remove their jackets, that is perfectly in order, except for the Chair. Would hon. Members ensure that all mobile phones and so on are switched to silent mode in Committee proceedings? There are no amendments to the Bill, so we will move straight to a clause stand part debate on each clause, should members of the Committee wish to debate the clauses one by one. I remind members of the Committee that there are money and Ways and Means resolutions in connection with the Bill. Copies are available in the Table Room.
Albert Owen: I want to begin by putting on record once again my thanks to the Clerk for the help that the Public Bill Office has offered and to those who assisted with the drafting of the Bill, not least members of the grocery market action group, ably chaired by the hon. Member for St. Ives. The action group, as members of the Committee know, consists of numerous organisations ranging from farming unions, the British Brands Group, ActionAid, the Association of Convenience Stores and the Rural Shops Alliance. What binds those diverse groups together is the concept of fair trading. I pay
I want to address, on the record, concerns that some hon. Members expressed on Second Reading. The Bill is not about price setting; it is simply about fair trading and setting up an ombudsman to oversee the new code of practice that came into force this year. It is not about vested interests, nor was it devised on the back of an envelope; it is a response to a wide and comprehensive Competition Commission inquiry into the unfair practices of major retailers. The Bill is also about introducing a strong referee, as recommended by the Competition Commission report, which made it clear that we need both a strong code and a strong referee—the ombudsman —to oversee the code. The principle of the ombudsman has cross-party support and, indeed, it unites the Front Benchers of all the major parties. I respect the fact that the Government are consulting on the ombudsman’s role. The main Opposition party has reservations about the exact location and resources of the ombudsman’s office. The concerns of both Government and the Conservative Members are valid, but they have travelled a long way, and they have arrived at the right destination, namely the principle of fair trading.
I will, as is right and proper, explain how clause 1(4) deals with the question of how the ombudsman should be independent of the Office of Fair Trading. The ombudsman should be independent and impartial. They should be independent of Government, independent of the supermarkets, and independent of groups with vested interests. Those basic principles will give the ombudsman the status required to fulfil the role, and the entire grocery market supply chain confidence that the code is being monitored and adhered to in an honest, open, transparent and unrestricted manner, as outlined by the clause and the important recommendations of the Competition Commission. That is the primary aim of the Bill and the clause.
The ombudsman’s location is a secondary concern. Of course, any ombudsman must have at their disposal adequate resources to carry out their functions. I fully understand the concerns of this and any future Government about not wanting to create a super-quango. [Interruption.] I thank the hon. Member for South-East Cambridgeshire for picking up the papers that I dropped.
We do not want to create a massive empire or a super-quango of any nature. It makes sense to share certain resources and information with the OFT, but the independent status of the grocery market ombudsman must never be compromised. It is for that reason that the Bill does not tie this or any future Government down to housing the ombudsman in any particular place, or to a specific amount of resources. That can be
Andrew George (St. Ives) (LD): I appreciate the opportunity to follow the hon. Member for Ynys Môn. May I reciprocate his kind words by congratulating him on handling the issue extremely well during our various debates? All parties are now united behind the Bill. We may debate some of the detail, but it is important to recognise that there is cross-party support for it—and not before time. I should also declare an interest, as I chair the grocery market action group, an organisation in which I have no pecuniary interest. I am not paid and see my duty merely as an extension of my role as a parliamentarian facilitating that important campaign.
I also endorse the hon. Gentleman’s words in relation to the Farmers Union of Wales which, probably more than any other farming organisation, has steadfastly pursued the issue over many years. I would also like to put on the record my congratulations to the Competition Commission on undertaking an extremely thorough investigation into the issue. Its objectivity and the manner in which it has clinically analysed and scrutinised the groceries supply chain will stand the future work of a supermarket ombudsman in good stead.
I stress the importance of clause 1(4). I understand the cost implications of the resources required by a grocery market ombudsman and the benefits of basing the ombudsman in a particular building so that overhead costs can be shared with another organisation—I entirely endorse that approach across Government, as it makes a lot of sense—but ensuring that the body has executive independence is fundamental to the success of the initiative. In whatever form the proposal ultimately goes forward, that element of executive independence is paramount.
Mr. Lindsay Hoyle (Chorley) (Lab): I should like to put on the record, Mr. O’Hara, the fact that you are retiring and say what a pleasure it is to serve under your chairmanship once again. I congratulate my hon. Friend the Member for Ynys Môn (Albert Owen), as I think we all wish to do. It is thanks to him that I am a member of this important Committee, on which it is a privilege to serve. We must work together to ensure that we push the Bill forward, because in the end, we all recognise that fair play must be done and seen to be done. That is a good way to proceed. Let us hope that we can work together speedily to ensure a fair result.
Mr. Nigel Evans (Ribble Valley) (Con): It is a great pleasure to serve under your chairmanship, Mr. O’Hara. I declare an interest as the owner of a small retail convenience store in Swansea. I congratulate the hon. Member for Ynys Môn on being lucky enough to be drawn in the ballot for private Members’ Bills and on having the common sense to introduce a measure that really unites the House.
Such a measure was unnecessary 40 or 50 years ago, because no group had the kind of clout that is now centred in a small number of hands. The retail market
Farmers have been mentioned. I represent an agricultural constituency, the hon. Member for Chorley represents many farmers, and the hon. Member for Ynys Môn also has many farmers in his beautiful constituency. We know that clout has shifted completely in negotiations and that the farmers, who in many ways are a disparate group, and have become a desperate group because of the clout of a small number of supermarkets. We need to redress that balance: alarm bells are now ringing in the retail trade, because its members are wary of that body coming forward. They have nothing to fear if they abide by the existing code. I do not think that there is a problem, as all they need to do is abide by their own code, and then I do not believe that the ombudsman will be too troubled.
The ombudsman’s position is laid out in clause 1, and I was grateful to hear what the hon. Member for Ynys Môn said about the amount of money that will be provided for that particular body. We do not yet know exactly how much work the ombudsman will have and how big the office will be, but I hope that it will not be large. I also hope that we will not get ourselves into the situation whereby we create yet another body to add to the huge number already out there that earn enormous sums of money from the public sector. When the hon. Member for Chorley and I served on the erstwhile Trade and Industry Committee we heard from the Ofcom lady, who was earning £217,000 a year to work a three-day week. We were absolutely baffled.
A huge number of people from organisations such as the one we are creating are on six-figure salaries for doing a few days a week or, indeed, for doing non-jobs. I know that the incoming Conservative Government will have a look at many of these so-called quangos and sort them out, but I hope that this new body will be streamlined from the very beginning in the way we would want all quangos and non-governmental departmental bodies to operate. That is absolutely right. I congratulate the hon. Member for Ynys Môn yet again, and I hope that we can get the Bill on the statute book while this Parliament is still sitting.
Mr. Paice: I add my congratulations to those expressed to the Member for Ynys Môn on promoting the Bill, which, if we are realistic and honest, is a rehearsal for a game that will be played presumably later in the year, depending on the result of the general election and bearing in mind the commitments already made by the major parties.
As the hon. Gentleman rightly says, there are issues of distinction. The Government have gone out to consultation, so clearly we do not have a defined Government approach. We, the Opposition, have said that there are two particular issues. First, we believe that the ombudsman’s office should be within the Office of Fair Trading—I will come back to that—and, secondly, the major suppliers, by which I mean multinationals
I have a few general remarks to make about clause 1. I wish to remind the Committee that the Competition Commission’s objective relates to consumer interest. Despite my recognised support for farmers, the Competition Commission proposed this code and ombudsman not out of sympathy for farmers but because of consumer interests and the belief that the supply trade and, therefore, consumers would suffer in the long term. The Competition Commission is right in that, because there is ample evidence to show that suppliers are being affected by some very unfair practices.
The hon. Member for Ynys Môn primarily has livestock farmers in his area. My area deals almost entirely with fresh produce, and those concerned with that industry have numerous contracts with all the major and minor supermarkets. The same issues arise—retrospective discounting, expecting farmers or growers to pay for shelf space, sometimes expecting them to supply labour unexpectedly and to take produce back that is clearly perishable and useless. There is a whole raft of different practices that are wrong, and those are fundamentally addressed by the new code, which supermarkets all welcomed and agreed to comply with. All terms of trade will have to be in the code and be properly explained in it. There should be no verbal terms, of which we are all aware. I have certainly had growers and packers receive the threat that if they supply one of the discount chains, they will not be allowed to supply one of the others. All sorts of unacceptable verbal threats have been made, and they need to stop. That will be stopped by the code.
The British Retail Consortium believes that it speaks on behalf of the supermarkets. I say “believes” because the supermarkets themselves have generally been much more relaxed about an ombudsman than the BRC. I am sure that all members of the Committee had the same briefing as me, which was pretty vitriolic in its opposition to the measure. As others have said, if supermarkets comply with the code properly, the ombudsman will have very little to do. However, to suggest—as the BRC does—that we should wait two years to see how the code beds down is to ignore the fundamental point that the ombudsman’s purpose is to know whether the code is bedding down and how it is operating in practice. The two go together, and I am pleased that my party has agreed to this approach, which recognises the power of the Competition Commission’s inquiry and the arguments that have been made by hon. Members from all parties, as has rightly been stated.
Let me deal with the OFT, because I know that hon. Members may question the issue. I fully understand that clause 4—I appreciate that we are not yet debating it—covers the OFT and how it fits in. We are certainly not suggesting—it seems wrong to start a sentence with a negative—that the matter should be under the OFT’s control, and I want to make that absolutely clear. All we
We have already been round this course to some extent. Hon. Members will remember that an earlier code of practice was introduced by the OFT. It was much vaguer, and left too much to individual interpretation, but it is arguable that if the OFT had monitored and enforced it more effectively, we might not have reached the current position. However, this is where we are.
Andrew George: I agree with the hon. Gentleman’s comments about the previous voluntary code of practice. He suggested that the ombudsman might be housed within the OFT’s offices, but has he been there and identified that there would be space? His assumption is that the OFT has unused space for such a function.
Mr. Paice: The straightforward answer is no, I have not, but I do not mean literally in the same building. We all know that when a new public body is set up, a whole panjandrum of boards and so on is often also set up. We do not need all that. We just need a discreet little organisation operating within the OFT’s facilities. That is relevant because one concern that the supermarkets rightly expressed is regulatory creep, and that the ombudsman, especially if they do not have much to do, will look for more things to do to expand their role. As expected from a political party that views all regulation with an element of suspicion and wants to keep the burden of regulation on business down, we do not want that mission creep, and it would be slightly restrained if the ombudsman operated within the OFT’s facilities. That is hugely important.
Our view is that funding should come entirely from the supermarkets through whatever process the ombudsman comes up with. Again, that would be a control mechanism against mission creep, because if funding suddenly increased massively, the supermarkets would quickly speak to my colleagues in the DTI or whatever Department will be responsible. There would be that opportunity to complain.
I believe that that is the right way forward, and that it is hugely important for consumers, the supply trade and British farmers, many of whom we represent in different ways. ActionAid has expressed concern that indirect suppliers—for example, a farmer who supplies a dairy, which supplies a supermarket—would not be protected. That concern is not restricted to the UK, and a cocoa bean producer in Africa who supplies a middleman might not be protected. I understand that concern, and there is a grave risk—perhaps the Minister will comment on this—of opening up a huge amount of mission creep. Such suppliers should have the opportunity to complain to the ombudsman—the code would not apply to second-tier suppliers, and the ombudsman’s direct role should not apply to them—and to have complaints investigated. Otherwise, the organisation that supplies the supermarkets will simply pass down what may be pretty onerous terms directly to the supplier.
I will finish with this warning, Mr. O’Hara, which I have expressed at many meetings up and down the country, not that I expected to be reported this afternoon. There is a feeling among the farming community that somehow an ombudsman is its salvation. I expect the hon. Member for Ynys Môn would agree with me that it is not. This is not going to put the price of milk up by 3p a litre or whatever farmers may seek. It would be foolish to allow that belief to get currency, because it is not going to happen. However, it is a step towards balancing an extremely unfair market situation, with 10,000 or 11,000 milk producers producing for a handful of processors of cheese and liquid milk. It is a step forward, whatever the product, including for overseas development.
We support the objectives of the hon. Member for Ynys Môn in the Bill, though I do not think it has a chance of becoming legislation before the election. It probably should not have, as we have not had time to scrutinise every line with due diligence. There clearly is not time to do that. It is a worthwhile rehearsal for what is likely to come later in the year, from whoever wins the election. The sooner an ombudsman in some capacity is in position, the better for the consumer and producer.
Peter Bottomley (Worthing, West) (Con): I thought that my hon. Friend the Member for South-East Cambridgeshire was going to finish by saying the sooner the election came, the better for the consumer. Allow me to say it for him.
I join the tributes to you, Chair, and to the Bill’s promoter. We clearly know that having laws and codes does not make everyone obey them. There would not be 2 million Americans in jail tonight if laws stopped offences. We have to be aware that many retailers suffer with perishable goods in the same way that suppliers do. It is not only fresh produce; some publishers dump periodicals on retailers causing them a great deal of trouble. I go along with those who object strongly to retailers being told they have to allow retrospective discounts without negotiation.
I am a great believer in trade unions, trade associations and federations of businesses, so that people can have a more equal way of dealing with folk. One reason for having Members of Parliament is not just to hold Government to account, but to raise a voice on behalf of the small trader—whether a street, shop or stall trader—to say when things are not fair. When there are sufficient examples and MPs have been sufficiently persistent, as the hon. Member for Ynys Môn has been with his Bill, action is likely to follow. So I pay tribute to him.
Whether the Bill can be agreed in the wash-up is above my pay grade, but I believe that we are making progress. Whether in this Parliament or the next, I hope progress is made, and that the ombudsman will try to use publicity as much as diktats and directives to make the situation significantly better. I hope there will be frequent reports on how the consequence of this initiative has been good for the consumer, by being fair to suppliers and retailers alike.
The Minister for Further Education, Skills, Apprenticeships and Consumer Affairs (Kevin Brennan): I thank you, Mr. O’Hara, for chairing the Committee and offer my congratulations on your forthcoming retirement. I also
To clarify the Government’s position on the Bill, there is a lot of genuine agreement between Front-Bench teams on this matter. To echo the remarks of the hon. Member for South-East Cambridgeshire, the Conservative spokesman, this is ultimately about the consumer. That was the purpose of the Competition Commission inquiry and the basis on which the Government decided to support the creation of an enforcer—or ombudsman—of the code. That was done because of the danger—clearly identified in a serious piece of work by the Competition Commission—to the supply chain and ultimately to the consumer in the longer term.
As my hon. Friend will know, on Second Reading, the Government took a neutral stance on the Bill. We support its general principles, but as has been mentioned, there is a consultation out at the moment. Before today’s Committee, I received briefing papers from several organisations with an interest in the outcome of the Bill. None of them has yet submitted formal detailed responses to the consultation, but I look forward to receiving those. Of course, different organisations have differing opinions about some of the detail that we are debating.
I do not want to detain the Committee long because the Government made their position clear on Second Reading. We support the Bill in principle, but as we have outlined, there is an ongoing consultation and the Government will want to see the result of that regarding how far the legislation progresses and at what pace.
Albert Owen: I will respond briefly to the comments made by hon. Members on both sides of the Committee. The hon. Member for St. Ives was right to thank the Competition Commission for a thorough investigation—I should have done that in my opening remarks. He highlighted the issue of cost, which we are all concerned about, and we all want to ensure that the ombudsman is independent, impartial and well resourced to do the job. The hon. Member for South-East Cambridgeshire was right to say that two years—which is what some of the retailers are calling for—is too long. We want to know straightway and get this provision bedded down as soon as possible to see how the code is working. The best way to do that is to have an independent ombudsman.
My hon. Friend the Member for Chorley is right: we are talking about fair play—nothing more, nothing less. There is no hidden agenda and we are following the Competition Commission’s recommendations. The hon. Member for Ribble Valley is a regular visitor to Ynys Môn, and he is right when he speaks from personal experience and says how beautiful it is. I echo that. He talks from experience as someone who has grown up in the grocery business and understands the changes that
The hon. Member for South-East Cambridgeshire may feel that this is a dummy run or a dress rehearsal, but we are providing an appropriate vehicle to take the provision forward. He talked about issues of distinction and suggested that certain suppliers should be exempt. I am not clear about that, as I feel that the Bill could deal with such a matter. Complaints can be brought against powerful suppliers just as they can be brought against powerful retailers, and there is scope in the Bill to deal with that. He was right to say that this is not about providing a lifeline for small producers and farmers. It is about the market failure and helping the consumer in the long run. I was glad that he repeated his opinions on the OFT. He has been a long-term supporter of it, and I pay tribute to him. However, the OFT must not play the role of a supervisor for the ombudsman, although it could help with wages, rations, support and other things.
The hon. Member for Worthing, West is right to say that MPs are elected to the House to voice the concerns of the small trader against large retailers—David versus Goliath. He is also right to say that we do not want retailers being brought to book in that way; we want them to be named and shamed. Once the code beds down and an ombudsman is in place, the retailers will come on board and support it. It will be in their interest, as well as that of the consumer and supplier.
Finally, the Minister, my hon. Friend the Member for Cardiff, West is a regular visitor to Llanfair PG—that is easier to say for the benefit of Hansard. He has circumnavigated the island on a number of occasions, but he has not matched me by walking around it. I am one of the few MPs who can say that they have walked every inch around the coastline of their constituency. He made a serious point: we are here as much because of the consumer as the Competition Commission or anybody else. I am a little disappointed that people have not responded to the consultation in a direct and detailed way. The Government had a neutral stance. I am hopeful that we are prodding and moving them in the right direction, as we and other parties have tried to do over a long period. The Bill exists because of the perseverance of many who believe that it is right.
First, in view of earlier exchanges, it would be worthwhile to revisit the definition of a supplier in the code, so that it is clear that not only the ultimate supplier to the supermarket may instigate an ombudsman’s investigation. A number of suppliers in the supply chain have a justifiable interest in being able to instigate an investigation.
Secondly, I want to emphasise the point made by the hon. Member for Ynys Môn in concluding the clause 1 stand part debate, in response to the hon. Member for South-East Cambridgeshire: unfair or fair dealing cuts both ways. I would be glad of clarification from the hon. Member for Ynys Môn, but as I understand subsections (1)(c) and (2)(c), a retailer can instigate an investigation. It therefore cuts both ways. It is important that that principle is established. Unfair dealing, in whichever direction, needs to be driven out of the system, ultimately for the benefit of the consumer.
Thirdly, finally and most importantly, the Bill needs to be strengthened to ensure that the ombudsman can operate proactively. The ombudsman appears to have only one mechanism for instigating their own investigations. Identifying complainants can discourage them from coming forward, as has been found under the voluntary code of practice, which small suppliers were simply not prepared to use for fear of reprisals. It is important that the ombudsman is able to instigate their own investigations. That could create a cloud so that a supermarket, for example, would not know where the complaint had come from. That would create a greater safety mechanism and allow complaints to come forward confidentially.
Mr. Evans: Does the hon. Gentleman agree that the hon. Member for Ynys Môn may have received few submissions because people were fearful that, if they said that they wanted the ombudsman to crack the whip against the supermarkets, the goods that they supplied might have been stopped, which could have ended their livelihoods overnight? Therefore, what the hon. Member for St. Ives is suggesting now is eminently sensible.
Andrew George: I am grateful to the hon. Gentleman for that intervention. All those involved in the Competition Commission’s investigations clearly identified the point made in the OFT’s report—published in 2002, I think—that unless there is an element of proactivity, we will lose the opportunity to ensure that the new grocery supply code of practice will be as effective as we hope in driving out unfair dealing.
Mr. Hoyle: That is a very good point. I wonder whether the code will cover people who broker deals. Has the hon. Gentleman had any thoughts on that issue? Obviously, my hon. Friend the Member for Ynys Môn might have some, and he might refer to them when he sums up.
Andrew George: The hon. Gentleman makes a very good point, and I am grateful to him for that intervention. I go back to the code itself, which of course has been enforced by the Competition Commission since 4 February. The Competition Commission has the power to enforce the code; it does not have the power to implement the ombudsman and that is why we are here today. Within the code, a supplier is clearly defined. The code primarily
Mr. Evans: As we travel round and talk to suppliers from industry or agriculture, I wonder whether we ourselves—Members of Parliament—might get a feeling that something is unfair in this sector. I gave an example about milk earlier, whereby it was costing farmers more to produce milk than they were getting from the retailer. We MPs might wish to refer a generalised case—for example, about the milk industry—to the ombudsman to investigate.
Andrew George: Absolutely. However, I must caution the hon. Gentleman that we do not want vexatious complaints to be made mischievously, purely to stop or slow down the whole trading environment, or to make it very difficult to proceed with. Therefore, the code must be used appropriately. Of course, at the end of the day, it is down to the ombudsman to ensure at an early stage that their resources are well deployed. However, I hope that the hon. Member for Ynys Môn will accept my primary point about proactivity. In other words, the ombudsman should be able to instigate the inquiries, rather than just sitting back and reactively waiting for complaints.
Albert Owen: I am grateful to the hon. Member for St. Ives for the points that he raised. He was right to talk in his opening remarks about the entire supply chain. We are not just talking about the supermarkets and the major suppliers; we are talking about the whole ethos of fairness, too. Both he and the hon. Member for South-East Cambridgeshire, who is the Conservative Front-Bench spokesman, referred to overseas traders and various other things. It is important to deal with the whole supply chain.
The hon. Member for St. Ives was right about the code. I do not have a copy of the code here either, but my understanding is that it deals with the direct suppliers. None the less, I believe that the spirit of the Bill cuts both ways. In his intervention, the hon. Member for Ribble Valley rightly asked about the role of MPs. I imagine that we could complain to the OFT, and if there was a trend, we could ask the OFT to take the matter forward. That would be one avenue. The three main avenues are the supplier, the retailer and the OFT. We do not want to open this up to people who make spurious complaints because they are not happy with the price that they are getting.
Proactivity is not in the Bill, although that is its intended spirit. If the OFT brought to the ombudsman’s attention an issue with the milk industry, it could be looked into proactively. The ombudsman could say,
Mr. Evans: Our constituents are all consumers and they will go into supermarkets and specifically buy fair-trade bananas, coffee or tea, because they want to ensure that the people who have supplied those goods, mostly in developing countries, are getting a fair price for them. This measure may open up all sorts of opportunities for supermarkets to start to sell UK-produced fair-trade goods, which state that they are ensuring that the supplier gets a fair price.
Albert Owen: Yes, the hon. Gentleman is absolutely right. We dealt with that issue on Second Reading. The supermarkets and the major retailers have nothing to fear from the Bill; it will be good for the whole grocery market, because it will increase choice for the consumer in the long run. The contracts will be under scrutiny and there will greater choice for the consumer.
Going back to the point made by the hon. Member for St. Ives, the intent of the Bill is to create a proactive ombudsman in whom everyone can have confidence. People must feel that they can approach the ombudsman in the knowledge that, if there are any issues, then he or she can look at them to ensure that they are dealt with. I agree with the hon. Gentleman, but I am responding from my memory of what the code says, so I am at a slight disadvantage. The spirit of the Bill is to ensure fairness and a proactive ombudsman who will look at the whole grocery market and the entire supply chain, as he suggests.
Mr. David Drew (Stroud) (Lab/Co-op): It is a delight to serve under your chairmanship, Mr. O’Hara. I shall not detain the Committee very long, but I should like to ask my hon. Friend the Member for Ynys Môn a question. Subsection (1) says that when an investigation is not pursued by the ombudsman, it will be explained in writing to the complainant and the OFT. Is the implication that that explanation will eventually be made public? I am aware that clause 4 links to clause 10 in terms of reporting requirements, but I am interested to know what happens. To my mind, this should be about transparency. When an investigation is clearly taken forward, the reporting procedures ensure that that will be made known, that there will be a report and that the report will be made public. I want to know that when there is no reason for the ombudsman to take an investigation forward, it will still be published, because
Albert Owen: We give the responsibility to the ombudsman. None the less, my hon. Friend is right that we need to have transparency. If he remembers, the formula works on the number of complaints and the number of complaints that are upheld. However, if there were a series of complaints on malicious grounds against a particular company, the ombudsman should have that right and responsibility to put into the public domain what they feel necessary.
Peter Bottomley: This clause is necessary. For those who know about mid-Atlantic democracy, a thousand years ago Iceland had a Parliament that met each summer when someone who remembered would recite a third of the laws. So anyone who went for three years running would know all the laws. None of those laws carried any penalty. They got along quite well but I do not think we will get along well enough. The idea of being able to impose a penalty is a good one as is the ability to award costs, which is dealt with in the next clause.
Nia Griffith (Llanelli) (Lab): It gives me great pleasure to speak on this Bill and I should like to echo the congratulations on its introduction that have already been offered to my hon. Friend the Member for Ynys Môn. We want the clause to provide the Bill with teeth. Any Bill that establishes an ombudsman must give that ombudsman the power to do something. It is not that we want to see massive penalties imposed, but we want people to know that they are there and can be used. The threat needs to be taken seriously and therefore the work of the ombudsman needs to be taken seriously. We do not want people to simply think, “Oh well, so what? If I get taken to the ombudsman it doesn’t really matter because at the end of the day it is pretty meaningless anyway.”
We want to ensure that the clause will make the ombudsman respected and make everyone who is involved in any way, whether in providing evidence, making a complaint or being criticised, judged, adjudicated or possibly even punished by the ombudsman, take the whole process sufficiently seriously to make it a worthwhile exercise. Are there are any further plans afoot to clarify the way that the Secretary of State may go about this and will my hon. Friend make every effort to ensure that the clause is strengthened as much as it can be?
Albert Owen: I am grateful to the hon. Member for Worthing, West and my hon. Friend the Member for Llanelli. I did not understand what the hon. Gentleman meant but he made the point earlier when he said that simply highlighting problems would be an embarrassment for the retailers. That is one of the biggest penalties. To have it exposed in the newspapers and in trade journals would be a huge disincentive to any retailer. In later clauses it will become clear that the Secretary of State will lay regulations before the House and that those regulations will have to be agreed by both Houses. That will strengthen the penalties even further where necessary. It is up to the ombudsman. We will give him the freedom to do the job and to carry out the role that we expect of him. There will be the ability to have penalties, but I emphasise that naming and shaming is also a tough penalty.
Mr. Evans: I agree that naming and shaming is most important. Nobody wants it emblazoned across the six o’clock news that unfair practices have taken place. However, on fines, none of us knows what sort of sums we are talking about at this stage. Where would he envisage the money ending up?
Albert Owen: The formula says that it is self-financing, so it would end up in the ombudsman’s department. The OFT would collect the money. I am looking to the Minister to help me here. The point of the Bill is that there will be monetary penalties. That will be paid for in the formula. That formula will be looked at annually. The OFT and the ombudsman would be able to consult if they needed to vary any of the penalties. I do not have a direct answer for the hon. Gentleman but I can assure him that we are trying to ensure that the code and the penalties work. They can be reviewed regularly but they have to be agreed by both Houses.
Andrew George: Briefly, may I highlight the point made by the hon. Member for Ynys Môn that there should be a positive side to the Bill? I see the potential for it in clause 10(1)(c) on the annual ombudsman’s report. It has always been my view that if supermarkets have nothing to hide, they have nothing to fear from an ombudsman. They should welcome the opportunity to open themselves up to any investigation. They might embrace this initiative when the annual report comes out and gives them the clean bill of health that they presumably anticipate.
I would go further and suggest that the annual report might stray further and identify examples of good practice, or at least the non-identification of bad practice. Ultimately, the supermarkets may use the ombudsman’s reports in their marketing if they have been found to engage in fair practices with their suppliers or have been
I hope that when we go out from this place and explain the purpose of the measure, people will identify it as a positive contribution and a reassurance to the consumer. It should be a report not purely for the trade press and those in the supply chain, but for the consumer because it came about to counter concerns about the impact on the consumer. Having such information in the public domain might reassure shoppers that they can feel comfortable with their favoured supermarket or grocer because it has been shown objectively by the ombudsman to engage in fair dealing.
Mr. Evans: Supermarkets do plenty of good things. We have not come here to bash supermarkets by any stretch of the imagination. I am sure we all get involved in the distribution of computers by Tesco and the collection of Sainsbury’s vouchers for sports equipment for schools. Booths, a regional supermarket in the north-west of England that has stores in my constituency, does an enormous amount to support local farming initiatives and community projects. We know that supermarkets do a lot of good, but we are embarking on this procedure because of the imbalance in the market that has been pointed out.
I do not think it is right to put in the Bill how the publications ought to be made. However, I hope that we start to think about the cost-effectiveness of publishing such reports. We all remember when the Government used to introduce annual reports—the famous Tony Blair reports—that nobody read. They were distributed to supermarkets, put on shelves and that is where they stayed until they were returned to goodness knows where to be pulped ready for the next year’s editions. Even the Prime Minister himself decided at some stage to stop the farce of those annual reports. It may well be that streamlining and cost effectiveness mean that these reports will be published on the internet, rather than physically published. It would therefore be easy for everybody to not only look at them, but cross reference them on the internet.
The hon. Member for St. Ives was talking about all the good things that supermarkets do, and the hon. Member for Ynys Môn said that shaming the supermarkets should be sufficient for them to follow the code that they say they wish to follow. If a particular supermarket chain or, indeed, a particular store—if it has sufficient clout and it is a single store that has been complained about in one area—has been found guilty of a breach of conduct, it might be appropriate for a poster to be displayed in the store, so that people can see what the supermarket has done and what action the supermarket has then taken to ensure that it has corrected the breach. All of those things could be considered in relation to ensuring that the information is got out to the public, so that the shaming aspect that the hon. Gentleman mentioned is a sufficient deterrent for them not to breach the code in the first place.
Albert Owen: Indeed. Waitrose is very posh. I did not buy anything. I just walked around and smiled, because it is that time in the electoral cycle. The serious point is that that supermarket engages with Members of Parliament and Members of the Assembly. Waitrose was one of the more positive supermarkets about the establishment of the ombudsman, and I think that others will follow suit. Yes, we can turn the measure into a positive for the supermarkets. On Second Reading, we all said that we are not anti-supermarket; we are pro-supermarket, pro-consumer and pro-supplier.
The conditions that need to be met for an action for defamation or for libel are that a matter should be untrue, damaging and not privileged. That subsection deals with the question of privilege for the report, but I do not know whether it covers the person who makes the complaint in the first place, because it is unlikely that the provision will be needed, unless a complaint is potentially defamatory. If the Bill is to receive further consideration, those who have greater knowledge than me of the law of defamation may want to consider whether there needs to be protection for the person who makes the complaint in the first place.
Albert Owen: I am sure that there are several lawyers in the House who can look at the measure in greater detail. The only complaints that will not be examined in greater detail will be those that are before the courts. A court’s decision will be in the public domain and we could consider that. However, the hon. Gentleman is right: that matter needs closer examination in future.
This issue, which has been raised by the British Retail Consortium, is the only one that I feel the need to push a little further. Subsection (2)(a) states that a retailer with more complaints made against it
Considering due process, is it fair and reasonable for a retailer, which has only had complaints made against it, to make a greater contribution to the ombudsman’s costs? Would not clause 3(3), which states:
be a fairer way of representing the proportion that retailers should pay? It would mean that only complaints deemed necessary of investigation by the ombudsman should be taken into account in relation to paying the overall costs of the ombudsman’s office. Will the hon. Member for Ynys Môn consider that?
Clause 12(5) indicates that the OFT must follow the ombudsman’s recommendation on how much retailers should contribute according to the formula for any particular period unless there is good reason to vary it. Will “good reason” be defined more clearly in guidelines? If so, what does the hon. Gentleman believe would be a good reason for varying the recommendation? We must bear in mind the importance of the need for the ombudsman to be independent and for it not to feel that it is being imposed upon by the OFT when making its judgments.
Andrew George: Further to the point made by the hon. Member for Crewe and Nantwich, and in addition to the idea that the formula should reflect the number of complaints and subsequent penalties, I wish to point out that, in my survey of the grocery retailers that fall within the orbit of the grocery supply code of practice and the measure under discussion—in other words, those retailers that the Competition Commission defines as having a turnover of more than £1 billion—Aldi, Waitrose and Marks & Spencer indicated conditional support for the concept of an ombudsman at a relatively early stage. I had discussions with several retailers at various stages and, although some equivocated, it became clear that they wanted a fair system of penalties and rewards, as well as a formula that might also reflect the capacity of a retailer according to its size and turnover.
Has the hon. Member for Ynys Môn considered a circumstance in which penalties have been so great that the ombudsman’s coffers are overflowing with income and it is so awash with money that it does not need to ask for any contributions for a number of years? Clearly, the ombudsman would not want to reimburse supermarkets
Albert Owen: I am grateful to the hon. Member for Crewe and Nantwich for raising those points. I must say that he has good links with Ynys Môn, while we are on that subject. He made a good point about the number of complaints and issues. Of course, we are following the guidelines and recommendations of the commission’s report and the idea that the provision needs to be varied at a later stage is exactly because it is new and there should be proper guidelines. We need to look at it and let it bed down to see how the formula is working. The formula is set up by the OFT, which is why I do not think that it breaches the independence of the ombudsman. In fact, there needs to be co-operation, which strengthens the argument about the cross-departmental workings of the ombudsman with the OFT. I understand what the hon. Gentleman is saying. I expect there to be strong guidelines once the formula is up and running so that everyone understands it clearly and openly.
The hon. Member for St. Ives raised the fairness of the formula and the ombudsman’s being awash with money. I want to put on record that it is not my intention for the ombudsman to pay himself huge bonuses with any surplus money. Again, that is the reason for varying the formula at a later date. The clause is in the Bill for that purpose. Hopefully, there will not be much at all. That is the intent. If the code works properly, there will be no need for great fines, great moneys and the ombudsman’s being awash with money, but I have explained the reason why the formula needs to be varied at a later stage and why the OFT needs to work with the ombudsman.
Andrew George: I want to ask the hon. Member for Ynys Môn about Northern Ireland. I have two points: one is that I neglected to say what a pleasure it was to serve under your chairmanship, Mr. O’Hara. It has been a great pleasure over the years and I wish you a healthy, happy and long-lived retirement. I have enjoyed working with you on a number of shared interests, such as Marbles Reunited, the restitution of the Elgin Marbles, for example. I wish you well in your retirement.
On the substantive point, although I am interested in the inclusion of Northern Ireland and the extension of the Act to all corners of the United Kingdom, as a Cornishman, who strongly differentiates between Cornwall and England, I would like to insert the word “Cornwall”.
I want to bring to the attention of the Committee the fact that the Bill covers England, Wales, Scotland and Northern Ireland, which mirrors the locations of many of the retailers. [ Interruption. ] And Cornwall, but I am sure that it comes under the law of England and Wales. As a Welshman, I, too, would like to have more separate laws and jurisdiction.
It is important to put on the record that retailers in the four home nations come under the Bill, and I believe that to be fair. We need to have a level playing field for all the constituent nations of the United Kingdom.
|©Parliamentary copyright||Prepared 11th May 2011|