2 Implementation of the new Codes
of Practice
Previous Committee Reports
15. In 2004 the Trade and Industry Committee
recommended:
At this stage we do not think a legally binding code
of practice necessary, but if the industry does not show signs
of accepting and complying with an adequate voluntary code then
the Government should not hesitate to impose a statutory code
on it.[13]
As a result the BBPA updated and expanded its Framework
Code of Practice.
16. The 2009 Business and Enterprise Committee
Report recommended:
The BBPA's Framework Code of Practice and the recommendations
of the Trade and Industry Committee have not solved the problems
of inequality in bargaining power and inadequate means to resolve
disputes identified in 2004: we believe that more is now needed.[14]
And:
It may be the industry's problems can be solved by
a framework ensuring fairness and transparency in dealings between
landlord and lessee. It may be necessary to ensure that inequalities
in bargaining power are recognised, even when business contracts
are involved. It may be that the beer tie should be prohibited.[15]
17. In response to the 2009 Report the BBPA decided
it would again update its Framework Code of Practice as it did
in response to the 2004 Committee Report. The 2010 Business, Innovation
and Skills Committee Report which assessed the progress of the
new BBPA Framework Code of Practice found:
We do not believe previous BBPA and pub company Codes
of Practice have been sufficiently robust. Nor do we believe the
pub companies have properly complied with them. This history of
evasiveness and the demonstrable consequences for lessees inevitably
requires a critical response to the new Framework Code.[16]
That Report was also disappointed in the delay to
the Framework Code being published:
We are disappointed that it took until the end of
January 2010 to publish the new BBPA Framework Code of Practice.
We were given sight of a draft Code ahead of the evidence session
in December 2009 and the difference between the draft and the
published Codes appears to be minimal. This delay put back publication
of our Report as it was only fair to let other groups respond
to it.[17]
Our predecessors concluded:
The new Framework Code of Practice appears to be
a modest step in the right direction. Of necessity it provides
a framework for companies of all sizes. We expect the major pub
companies to treat it as an absolute de-minimis requirement and
to significantly build on it with their own Codes. Only by doing
so will pub companies be able to demonstrate that they are committed
to reform. We recommend that our successor committee, at an early
opportunity in the next Parliament, assess the extent to which
pub companies have built on what is a bare minimum of a Framework
Code; and evaluate how effective the new Code has been in improving
the relationship between lessees and pub companies. Previous codes
have been weaker and not fully observed by the pub companies.
We will need to see compelling and continuing evidence by June
2011 that the new codes are being observed and enforced if our
successor committee is not to recommend statutory intervention.[18]
Deadlines and delays
18. The Framework Code of Practice is the industry's
'template' for individual pub companies' codes of practice. The
Framework Code was drawn up by the BBPA but individual company
codes would be accredited by the British Institute of Innkeeping
(BII) which is the professional body for the licensed retail sector.
In evidence to the 2010 inquiry the BBPA told us that by June
2010 they hoped most pub company codes of practice would be accredited.[19]
Our predecessor Committee believed that the BBPA should be held
to its deadline and concluded that:
The Codes of Practice are moving in the right direction,
but they are not yet in place. We will hold the BBPA to its timetable
for implementation for the larger pub companies. Any delay beyond
June 2010 which is not accompanied with a justifiable reason,
will not be acceptable. Furthermore, after the assurances it has
given to the Committee, the BBPA not individual pub companies
will be held responsible if delays and slippages occur.[20]
It also recommended that the industry:
Produces a project plan for change with key stages
at which it can be marked against achievement. This would make
it easier for the industry to see how it is progressing and for
our Committee, our successor Committee and the Government to be
confident that real change is happening. If slippage in the project
plan occurs the Committee and Government must be provided with
explanations and industry plans for action to get the timetable
back on course. [21]
19. In July 2010, the month after the deadline,
the BBPA wrote to us with details of how the accreditation had
progressed:
All major pub companies have now either had their
Codes of Practice accredited by BIIBAS (Punch and Enterprise),
or are actively engaged in the process of accreditation which
is expected before the end of July (Admiral, Mitchells and Butlers,
SNPC, Greene King and Marstons). These companies represent more
than 20,000, pubs or 90% of the leased and tenanted pub sector.[22]
20. In October 2010, the BBPA provided an updated
submission which stated that:
The majority of BBPA members who operate leased or
tenanted pubs have now either had their Codes of Practice accredited
by BIIBAS or are in the final stages of this process. These companies
represent over 23,000 pubs or around 98.6% of BBPA members with
leased and tenanted pubs.[23]
That submission also stated that the BBPA "took
note of the Select Committee's comments and decided that, in the
interests of minimising [cost] burdens [on small businesses],
very small companies should have more time to complete the accreditation
process". The BBPA concluded that "We expect such companies,
representing 324 pubs, to complete and implement their codes by
the end of the year".[24]
21. The following table, provided by the BII,
sets out the accreditation timing for each pub company and highlighted
the number of companies which did not meet the June 2010 deadline:
| Pub Operating Company
| Date of Accreditation
|
| Admiral Taverns | 10.11.10
|
| Adnams | 16.03.11
|
| Batemans | 01.04.10
|
| Brakspears | 19.08.10
|
| Charles Wells | 30.06.10
|
| Daniel Thwaites | 08.09.10
|
| Elgood and Son | 26.01.11
|
| Enterprise | 30.06.10
|
| Everards | 03.12.10
|
| Frederic Robinsons |
17.01.11 |
| Fullers | 03.06.10
|
| Greene King | 13.06.10
|
| Hall and Woodhouse |
25.10.10 |
| Heavitree | 07.03.11
|
| Holdens | 02.06.11
|
| Holts | 15.12.10
|
| Hook Norton | 18.05.11
|
| Hydes | 03.12.10
|
| JW Lees | 19.08.10
|
| Marstons | 15.07.10
|
| McMullens | 26.07.10
|
| Mitchells and Butlers |
14.12.10 |
| Mitchells of Lancaster |
03.05.11 |
| Palmers | 14.02.11
|
| Punch | 30.06.10
|
| SA Brains | 20.08.10
|
| Scottish and Newcastle |
22.07.10 |
| Shepherd Neame | 06.08.10
|
| St Austell | 07.01.11
|
| Timothy Taylor | 28.10.10
|
| Wadworth | 09.07.10
|
| Young's | 30.06.10
|
BII Ev 50
22. When we asked the BII why some of the codes
had still to be accredited, Mr Robertson, Chief Executive of the
BII, told us:
You would probably need to ask colleagues in the
pub companies that question. My gentle observation would be that
this is a significant departure in practice for some of the companies.
Some of the small companies have found it particularly difficult
to respond to it. There are one or two smaller ones that have
still not got there.[25]
23. Brigid Simmonds, Chief Executive of the BBPA,
reiterated that by July 2010, 10 companies, representing 90% of
the pubs in the leased and tenanted sector had been accredited
and that "all the big companies had their accreditation in
before June 2010; not all were accredited by that time".
She argued that smaller companies "would want to wait and
see how the larger companies fared and learn from them" but
asserted that "all companies have now put forward for accreditation
to BII" although "there are five that still have not
been finalised through the process".[26]
24. While we agree with our predecessor Committee
that accreditation had the potential to be more onerous for smaller
companies, we note that Batemans, a small brewer pub company,
was in fact the first company to have its codes accredited.[27]
25. When questioned on the cause of the accreditation
delays, Brigid Simmons argued that that there had been a queue
of companies waiting to be accredited.[28]
In a follow-up note to the Committee the BBPA also offered the
following two reasons:
1. The setting up and iterative processes involved
in the accreditation process were more difficult than originally
envisaged, leading to delay for some of those companies who were
early into the process.
2. BII took their own legal advice about the
legal status of Codes and this delayed the accreditation of some
already submitted Codes.[29]
26. Marston's was one of the larger companies
which did not make the deadline. Alastair Darby, Managing director,
Marston's Pub Company, explained his experience of the accreditation
process:
We went for our first accreditation hearing during
June. There was a queue of companies waiting to be accredited
or for their codes to be reviewed. We had a long four-hour meeting
with the BII, which resulted in some suggested amendments and
changes to our code to improve clarification. We submitted those
after that meeting, towards the end of June, and got official
accreditation in July. The reason for the delay was purely the
process, and making sure that the codes were as clear as they
possibly could be in the eyes of BIIBAS, the accreditation panel.[30]
27. The fact that there were delays was unfortunate,
but not entirely unexpected, given the nature of the process.
However, the BBPA did not give the impression that it was active
in trying to speed up the process. Contrary to the 2010 recommendation,
the BBPA did not inform the Committee at the time that it had
made changes to its timetable. Nor did it alert the Committee,
in advance, to delays in its project plan and supply reasons for
it. The BBPA should have been more upfront with the fact there
had been slippages and written earlier to explain what they were,
what had gone wrong and what the plan of action was to get matters
back on track.
28. The BBPA's failure to supply
the Committee with information requested by our predecessor Committee
on slippages yet again demonstrates the industry's failure to
be transparent and to engage in the process. Just simply glossing
over major slippages in their own target without providing any
information smacks of complacency and demonstrates an inability
to deliver meaningful reform.
13 HC (2004-05) 128-I, para 204 Back
14
HC (2008-09) 26-I, para 156 Back
15
HC (2008-09) 26-I, para 194 Back
16
HC (2009-10) 138, para 26 Back
17
HC (2009-10) 138, para 32 Back
18
HC (2009-10) 138, para 70 Back
19
HC (2009-10) 138, para 31 Back
20
HC (2009-10) 138, para 101 Back
21
HC (2009-10) 138, paras 101 and 102 Back
22
Ev 91 Back
23
Written evidence submitted by BBPA published October 2010 on the
Committee's website www.parliament.uk/bis Back
24
Written evidence submitted by BBPA published October 2010 on the
Committee's website www.parliament.uk/bis Back
25
Q24 Back
26
Q118 Back
27
See Table above BII Ev 50 Back
28
Q120 Back
29
Ev 88 Back
30
Q120 Back
| 
