Examination of Witness (Question Numbers
120-139)
BBPA
8 DECEMBER 2009
Q120 Mr Hoyle: I did not quite hear
an apology for the way the industry treated the Chairman and the
way he had been intimidated. I know the witnesses have said they
do not quite agree with some of those comments, but I think it
would have been nice, Mrs Simmonds, if you had apologised on behalf
of the BBPA for the treatment dished out to the Chairman. He should
not have had to put up with that. I hope that will be taken back
by you and will be recognised.
Mrs Simmonds: I do recognise that.
Having met the Chairman I certainly was not intimidating; I would
not be capable of intimidating anyone.
Q121 Mr Hoyle: Is that an apology?
Mrs Simmonds: It is a complete
apology for what has happened. We are here today to talk about
how we move forward. I certainly apologise if we have in any way
brought Parliament into disrepute.
Q122 Chairman: I am unused to being
unable to comment on my own reports for fear of litigation.
Mr Darby: One must make a judgment
as to whether or not to trust the industry and I am sure that
judgment will be made in discussion in the fullness of time.
Q123 Mr Hoyle: It leaves us with
a bad taste.
Mr Darby: I understand that. Having
taken the role as chairman of the working party I saw it as my
job to bring together a diverse group of people to stand by a
harder, tougher code which will result in greater transparency
in the conduct of business. I am absolutely committed to that.
I believe that is commercially right and proper. One of the baleful
consequences of this process, which is one reason why we are so
keen to get it resolved urgently, is that it detracts from the
time taken to visit pubs. All I can say is that if I have managed
to visit 400 pubs in a year despite having spent two to three
months in committees, writing reports and so on, I could have
visited 700.
Q124 Mr Hoyle: I look forward to
seeing you at the Euxton Mills in Chorley.
Mr Darby: I have been there; it
is a very good pub.
Q125 Chairman: Our ambition as a
committee is to make sure the industry can get on with fighting
its ordinary commercial battles by rebalancing the power between
the small companies which we believe are being abused and the
big companies that abuse them. One aspect of abuse is enforcement
of the tie by flow monitoring equipment. This was a moment of
spectacular inaccuracy in our evidence session with Mr Thorley.
I am encouraged by some of the things the new code says about
it, but I put some specific questions. Your agreement with the
BII and FLVA calls for a protocol which would cover minimum standards
for its operation and application. Will that protocol be enforced
by you or the individual pubs?
Mrs Simmonds: It is part of the
BBPA code and therefore how that protocol is written is up to
the individual company but it must be accredited by BII. It has
to be transparent and above board.
Q126 Chairman: The practice of assessing
data, which is an art and not a science, and the arbitrary use
of direct debits to take money out of lessees' bank accounts will
end?
Mrs Simmonds: I was not aware
that that was practised, but if that is the case I am absolutely
certain that will be the case.
Q127 Chairman: It was a fairly widespread
practice.
Mrs Simmonds: I have talked to
Brulines and Trading Standards have considered that their equipment
should not be prescribed under the weights and measures regulations,
which is probably one of the matters about which you intended
to ask me. But they have had their system tested and set up a
protocol with Trading Standards so it can be tested in the future,
which I believe is important.
Q128 Chairman: Frankly, I do not
think that is enough, and there is also a dispute about this within
the local authority sector. In June of this year I received a
letter from a trading standards officer in which he said: "I
am able to say that the equipment shown to me is definitely not
legal for trade use. In addition, by your own admission since
about 2003 following initial verification no further testing of
the equipment has taken place. I have 40 years' experience as
a weights and measures inspector and in my opinion such a long
period of use without testing or verification of equipment is
unacceptable to claim confidence in its accuracy." There
are big questions about the accuracy of flow monitoring equipment.
Mrs Simmonds: I do not know how
recent is the information I have from Brulines about the discussion
with Trading Standards. They have been told by Trading Standards
that their equipment is not required to be approved for the purposes
of trade.
Q129 Chairman: That is a legal definition
but not a politically acceptable one. I accept that legally that
is the correct position, but the issue is about customer protection
rather than small business protection.
Mrs Simmonds: The other important
aspect on which my colleague may be able to comment is how pub
companies deal with that data. What you would not want—and
is important in terms of the new code—is for the Brulines
equipment to be the only way to deal with it.
Q130 Chairman: There are two issues:
the accuracy of the raw data and the interpretation of that data,
which is the crucial point because at the moment one cannot distinguish
between beer and water, though we were told one could. The question
then is: is that sufficient evidence for buying outside the tie?
Here you say that additional prima facie evidence must
be provided. What is the nature of the additional evidence that
will be required?
Mrs Simmonds: In the annex we
talk about the nature of some of the evidence required which would
be third-party information as well as other considerations, for
example being absolutely honest as to whether there are other
kegs and casks available from another brewery. There is a whole
range of things put forward in the annex to be taken into account,
not only the Brulines equipment.
Q131 Chairman: I am concerned by
what you said earlier in answer to one of my questions, namely
that you were unaware of the practice of direct debiting as instantaneous
fines or punishments. It has been happening. Many thousands of
pounds have been taken from lessees' bank accounts on the basis
of just an interpretation of Brulines' data.
Mrs Simmonds: I shall be honest
and say I am probably too new to the industry.
Chairman: I would appreciate receiving
an assurance in writing following this meeting that the practice
of automatic direct debiting will end immediately. That is unacceptable.
Q132 Mr Clapham: I take you to PIRRS.
Mrs Simmonds, earlier you began to explain how the scheme worked.
I understand that this is an initiative across the industry.
Mrs Simmonds: Yes.
Q133 Mr Clapham: Where there is a
dispute between the landlord and tenant there is an agreement
to go to PIRRS and the tenant is able to choose a valuer from
the scheme's list.
Mrs Simmonds: Yes.
Q134 Mr Clapham: On the face of it,
it appears that that scheme would work independently, but a note
received from Justice for Licensees reveals that it believes the
scheme has to some degree already been tainted. They say that
pressure has been applied and the integrity of the scheme has
been influenced by pubcos. I am aware that PIRRS had a website
which was then removed. Did that happen because pressure was exerted?
Mrs Simmonds: No; it was just
a technical reason. That website has been live in the past week.
Two cases are in process and three went forward but settled before
proceeding. Under the scheme nominations to be a surveyor on the
group are received by the whole body. This includes the ALMR,
the FLVA, the GMV and the BII. The lessee chooses one of those
surveyors to hear the case. The pub company has absolutely no
say in who is chosen.
Q135 Mr Clapham: It is one issue
that takes us back to the discussion about independence and the
way in which we may see the code of practice operating. In this
example of PIRRS a mandatory scheme may well be a great help in
deciding how to move forward. But when we get to that point does
the licensee need representation? If so, obviously a cost is involved.
Are there any ideas in the industry about how that cost will be
met?
Mrs Simmonds: Most of the work
is done by correspondence although it is possible to have a hearing
where they have 20 minutes. We do not anticipate that there is
any cost whatsoever in having professional representation in the
scheme. It is not looked at in that way; it is done in writing
and, if necessary, by a meeting. If the system does not work we
can review it, but that is how it is envisaged it will work at
the moment.
Q136 Mr Clapham: Initially it is
dealt with in correspondence but should there be a need for a
face-to-face meeting that can take place?
Mrs Simmonds: Absolutely.
Q137 Mr Clapham: I understand that
this kicked off in December.
Mrs Simmonds: It began a few days
ago.
Q138 Mr Clapham: Does it appear to
be working?
Mrs Simmonds: I think the fact
that three of the cases were settled before they even got to that
stage means it has worked. I see no reason why it should not work.
It is something we must all support. Every member of the BBPA,
plus anyone outside its membership, will be paying for the cost
of doing it. It is an industry scheme and involves the individual
in low cost, and that is the way we wish it to work.
Q139 Chairman: The BII told us that
the scheme was legally binding in the same way as the code; it
becomes part of the contract between the pubco and lessee?
Mr Darby: It is captured within
the revised BBPA code that we will fully support and we will abide
by PIRRS. I am aware that we have to confirm the legal basis of
the BBPA code in separate submission, but PIRRS is captured within
the code.
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