I cannot conclude without expressing a degree of regret at the tone of the preamble to the contribution of the noble Lord, Lord Howard of Rising, to which I listened with interest. I have some sympathy with it, which he will have gathered from my contribution. I am not interested in creating some monster which runs away in terms of regulation.

Baroness Wilcox: Before the noble Lord sits down, I realise that I omitted a response to my noble friend Lord Howard on a question that he asked. It was central to what he was saying, so I hope that the noble Lord, Lord Browne, does not mind if I intrude. My noble friend Lord Howard asked whether it was right that the adjudicator will have no power to require information before an investigation is started. The answer is yes. The adjudicator will have no such power; this is in paragraph 35 of the Explanatory Notes. The only exception to that is the monitoring of recommendations. I thank the noble Lord, Lord Browne.

Lord Browne of Ladyton: I will finish what I had to say. I was pleased that the nature of our debate in Committee this afternoon was devoid of partisanship. I know that the noble Lord, Lord Howard, was perhaps just tweaking our tail a little and was not making too serious a point, However, I represented a group of farmers in my constituency, which was both urban and rural, for 13 years. I established a good relationship with them, and some of them became my very good friends, although I did not know them before I became a Member of Parliament. I say to the noble Lord, Lord Howard, that before he categorises people as manifestations of irony, perhaps he should make some inquiries. I am confident that, were he to interrogate members of the National Farmers’ Union in Scotland whom I represented for 13 years about whether they thought it ironic that I should be party to a process that is designed to protect their livelihoods and those of others, he would be surprised. Clearly he would be surprised, because he has a preconception about where I am coming from. The same could be said of my noble friends on the Front Bench. I understand that one of them farms, and so is well qualified to speak for farmers. Therefore, it might be better if we avoided such implications for the rest of our deliberations. I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

7 pm

Amendment 24

Moved by Viscount Eccles

24: Clause 4, page 2, line 6, leave out “suspect” and insert “believe”

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Viscount Eccles: My Lords, I will read out a sentence that is relevant to my amendment and also to the one we have just discussed. The Minister stated:

“After careful consideration, the Government have decided not to restrict the information that the adjudicator can consider”.—[Official Report, 22/5/2012; col. 726.]

That is entirely right. It is a free country, with free speech and so on. However, at the other end of the story, if we were to get into a situation where it was found that something had been brought forward that turned out to be vexatious, it would represent a failure and would be proof that the Bill was not working as well as it should.

I am mindful of the warning of Professor Lyons that he was not at all sure that the investigation potential was all that large, because of the length of the supply chain and because the adjudicator may investigate whether a large retailer has broken the groceries code. That is quite a narrow ground on which to mount an investigation.

In my amendment I put forward the argument that we should take out “suspect” and put in “believe”. There is a lot of hearsay and suspicion in the world, and in the way in which people think about the way supermarkets behave. When considering several Bills recently the House had no problem accepting that “suspect” was too weak and that we should “believe” before we start engaging in the expenditure of public money. I also think that it would be a protection for the adjudicator. This business of investigation is delicate and the adjudicator will have quite a hard time with it.

It is not an answer to say that Amendment 24 is irrelevant, because I think that the Office of Fair Trading should persist. That is my preference but of course I am capable of accepting that we should debate this on the basis that there will be an adjudicator, even though I want to see the continuation of the OFT. The adjudicator would welcome the protection of having to say that he or she “believed” that they had reasonable grounds rather than just “suspected”. I beg to move.

Baroness Wilcox: My Lords, the amendment would alter the criterion for starting an investigation so that the adjudicator would have to have reasonable grounds to believe that there had been a breach of the code, rather than reasonable grounds to suspect, before beginning an investigation. The decision on what threshold is needed is always difficult. However, we should consider what is being decided here. It is not guilt, liability or a sanction of any kind. All that is being decided is whether the adjudicator should begin an investigation that will allow him or her to decide, based on the results of the investigation, whether there has been a breach of the code. At this early stage of the process, the term “suspect” rather than “believe” has to be correct, particularly as the adjudicator generally will not benefit from the information powers set out in Schedule 2 until an investigation has started, and so may not be able to establish grounds for belief.

With that explanation, I hope that the noble Lord will see fit to withdraw his amendment.

Viscount Eccles: My Lords, I thank my noble friend, although I will come back to the matter because I am not satisfied. I should like to point out that the minute

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an investigation begins, it threatens a supermarket with an unexpected cost. Starting an investigation is quite a serious matter and is not to be undertaken lightly. The word “believe” should be included in the prelude to an investigation. I also think, given the amount of information that would already be available and will become available to the adjudicator, it should not be too much of a problem to ensure that there is some certainty that the matter is worth investigating. I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Amendments 25 to 27 not moved.

Clause 4 agreed.

Schedule 2 : Information powers

Amendment 28

Moved by Baroness Byford

28: Schedule 2, page 14, line 20, leave out “is more than 10 miles” and insert “cannot be reached by the use of public transport in under half an hour”

Baroness Byford: My Lords, we have moved on to looking at investigations. My amendment seeks to amend Schedule 2(6). The Explanatory Notes refer in line 3 on page 11 to the adjudicator considering information supplied by whistleblowers. The rule in the Bill that allows the payment of expenses only to someone who has to undertake a journey of “more than 10 miles” could exclude—I do not say that it will do so—people who live in the countryside. As we know, if they do not have a car, public transport can be quite a problem. Does the choice of a distance of 10 miles follow what has been provided for in previous legislation or does it relate only to this Bill? A distance of 10 miles in urban areas with plenty of transport options is one matter, but in rural areas where buses sometimes run only three times a week, it is another. Is it necessary to restrict this provision to that distance? It could well be that someone has to make a six-mile journey and cannot manage it easily. As the Bill stands, they would not be entitled to any financial help to get to the adjudicator and give their evidence.

Earlier today, we had a meeting of the All-Party Parliamentary Group on Rural Services. One of the things we talked about was the provision of rural bus and rail services. I have to say that it is an increasingly difficult problem. For those who own cars, it is not something that needs to be thought about, but for those who do not own cars, it is. If someone happened to be a whistleblower, which is what we are talking about here, and had lost their job, they might find themselves in difficulties. I have therefore tabled the amendment to seek clarification. I beg to move.

Lord Knight of Weymouth: My Lords, I am interested in the noble Baroness’s amendment. I shall not comment on it at length, but I understand the problem she raises here. I want only to ask the Minister whether, under paragraph 16 of Schedule 1, which we discussed earlier

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in respect of incidental powers, it would be better to offer the adjudicator some flexibility under this wonderful paragraph and thus allow him to use his judgment on what would be a reasonable level of travel expenses.

Baroness Wilcox: My Lords, I can understand why my noble friend is asking this question because she lives in the countryside. I live in Cornwall and I know about buses in rural areas, and can understand the principle behind the amendment. From a practical point of view, a simple distance criterion will be much easier for the adjudicator to apply than one based on the time taken to use public transport. It says here that it is more straightforward and harder to dispute to decide whether someone has travelled more than 10 miles than to calculate whether it would have been possible to make that journey within half an hour on public transport.

However, my instinct is similar to that of the noble Lord, Lord Knight, and I feel that somehow or other the adjudicator should at least be able to have some thoughts on this matter. Although I shall ask my noble friend to withdraw the amendment, I can say that we will go back and look at this issue to see what the answer may be. I do not know whether there can be some discretion, and I may be treading on all sorts of impossible ground, but when we discussed this matter previously, and my team asked why we should consider this, I said, “I think you will find that this is a rural question”. There is obviously sympathy in the Committee for my noble friend’s question. I therefore ask her to withdraw her amendment. However, I will take it away and see if there is anything else that we can come back with.

Baroness Byford: I thank my noble friend for that response. I am not wedded to the half-hour period suggested in the amendment, but I wanted a debate about the need for rural accessibility. I am grateful to the noble Lord, Lord Knight of Weymouth. We all appreciate some of the real difficulties that people face. I am grateful to the Minister, and it gives me great pleasure to withdraw my amendment in the hope that we will come back with something at the next stage. I beg leave to withdraw the amendment.

Amendment 28 withdrawn.

Schedule 2 agreed.

Clause 5 : Investigation reports

Amendments 29 to 31 not moved.

Amendment 32

Moved by Lord Browne of Ladyton

32: Clause 5, page 2, line 20, at end insert “; and

(c) the reasons for the decisions reached”

Lord Browne of Ladyton: My Lords, the purpose of the amendment is to require the adjudicator to give reasons for his or her decisions under Clause 5, for the

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very obvious reason that such decisions can lead to the consequences described in Clause 6 on forms of enforcement. The Minister will agree, as will the Government, that the adjudicator is expected to comply with the rule of law. It is important that the adjudicator’s decisions are lawful and reasonable, following investigation.

This simple amendment places the adjudicator under an obligation to provide reasons for his or her decisions to use enforcement powers under the Bill. It would be an eminently appropriate provision to have in the Bill. There will be an expectation on the part of the Government that the adjudicator will give such reasons, but ensuring that an expectation that reasons will be supplied would reassure those who may feel in any sense threatened by this legislation or believe that it will create an environment in which unreasonable demands may be made of them. In my experience, a requirement to provide reasons obliges those who make decisions to comply with the law and avoid successful challenge on grounds of human rights or judicial review.

However, much more importantly, providing reasons often means that judgments are accepted. In my experience of processes of this nature, if reasons are given people can then be satisfied that there is no point in taking the matter further by any form of appeal. In the absence of reasons, appeals or further proceedings are taken just to find out the reasons, which is why so many processes stop at the door of the appellate court or there are further proceedings. It is only at that point that parties can understand exactly the reasons for the decision in the first place.

I commend the amendment. I have not been successful thus far in my many attempts to try to improve the Bill. I hope that this simple amendment will not be considered offensive and that the Government can be generous enough to say that the Bill can be improved, even if the proposal for improvement comes from the traditional opposition Benches. I beg to move.

7.15 pm

Viscount Eccles: My Lords, I have an amendment in this group. I am in full support of the noble Lord, Lord Browne. My amendments dovetail entirely with what he has just said. I want to drop subsections (3) and (4) of Clause 5 because, in this media age, the idea that an investigation report will be published and that the identity of the retailer will not come out is not workable. Again, it feeds the whole world of suspicion, innuendo and investigation of another kind. On subsection (4), if a retailer’s name is given, apart from the reasons for the decision having been given, the retailer would have been given an opportunity to make a comment and to know which way the report was going, as is normal in order that it could be agreed by one and all to be a well balanced and fair report.

Baroness Byford: I will speak to my Amendment 34 in this group. It is a simple, probing amendment to ask whether the wording implies that a supplier will never be mentioned and that, if a supplier is mentioned, he or she does not need or deserve a second chance to comment. For example, if a retailer is mentioned in the draft, it can see the copy and comment on it. As a

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result, the draft may be changed. Should it not be open to all parties involved in the investigation to know both the original wording and the comments made?

Lord Borrie: I cannot see how the Minister can possibly have a good reason for rejecting the perfectly straightforward amendment of by my noble friend.

Baroness Wilcox: My Lords, the reports that the adjudicator must publish at the end of each investigation are a vital part of his or her accountability and an important way of keeping retailers, suppliers and consumers informed of his or her work. It is therefore right that we should carefully examine what is contained within them. To take each of the amendments in turn, I find the amendment in the name of the noble Lord, Lord Browne of Ladyton, interesting and he has made his case eloquently. It is indeed reasonable that the report should give the reasons for the decisions reached, as well as the decisions themselves. I would be happy to speak with him further about this amendment before the next stage of the Bill.

I am less sure of Amendment 33, which is proposed by my noble friend Lord Eccles. I think that it is reasonable to say that the adjudicator’s report need not always identify the retailer concerned. This is because there may be cases where the adjudicator considers that the matter can more appropriately be dealt with privately. For example, if there were no breach of the code, the adjudicator might conclude that it would be unfair to name the retailer that had been investigated, due to the possible reputational damage.

Lord Knight of Weymouth: I am most grateful to the noble Baroness for giving way. In what way will the Freedom of Information Act apply to the adjudicator? If a report was published that did not identify a retailer and someone wanted to find out who the retailer was, would it apply? I think that that is pertinent to the noble Viscount’s amendment.

Baroness Wilcox: Will scrutiny from freedom of information or the parliamentary commissioner not undermine the principle of confidentiality? The duty to maintain confidentiality is very strong and the Bill is explicit that it can only be overruled in certain defined circumstances. Those would not include a freedom of information request and that position is a result of Section 44 of the Freedom of Information Act, which is engaged by Clause 18. Generally, freedom of information will apply to the adjudicator with the exception of Clause 18 overriding it. I am sorry that that was a slightly disjointed answer. Was it of help?

Lord Knight of Weymouth: I am grateful to the Minister for giving me another chance to seek clarification. It seemed clear and then the second piece of in-flight refuelling to the Minister made it less so. She essentially said that there is a confidentiality get-out on FOI for the adjudicator. Normally, freedom of information would apply to the work of the adjudicator unless

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there were good reasons for confidentiality such as protecting the interests of a retailer who would otherwise be damaged. Is that the case? If the Minister or her in-flight refuelling were able to give us some examples, that would be quite helpful.

Baroness Wilcox: My view—and that of the advisers behind me—is that at this stage I need say only one thing: I will write to the noble Lord. That will be easier and fairer. We will make sure that everyone else receives a copy of that, too. I apologise for not being able to be clearer at this stage. Maybe it is getting late. Furthermore, regarding the deletion of subsection (4), it is only fair that if a retailer is identified in a report they are given a reasonable opportunity to comment on a draft of that report before publication.

That brings us on to my noble friend Lady Byford’s amendment, which would require the retailer’s comments to be published as an annex to the report. Although I understand the thinking behind that, on balance it is unnecessary. Although the retailer may comment, the adjudicator is not obliged to include any of these comments and the final report is fully the adjudicator’s. Furthermore, if a retailer knew that any comments they made would be published, it could impair free and frank discussions. I hope that that clarifies the position a little. Apart from the fact that I will write to everyone to clarify the point about freedom of information, I ask noble Lords to withdraw their amendments.

Baroness Byford: I am slightly mystified by the Minister’s response to my question. I would be grateful if she would take it away and think about it because it was a surprise.

Baroness Wilcox: Yes, of course.

Lord Browne of Ladyton: Despite the lateness of the hour, I am significantly perked up by the noble Baroness’s response. I have no doubt that what tipped the balance in my favour was the support that I received from the noble Viscount, Lord Eccles, but more importantly that I managed at last to persuade my noble friend Lord Borrie that there was some merit in one of my amendments. I am extremely grateful to him. He has almost rehabilitated his relationship with me with that intervention. I am delighted that the noble Baroness is willing to take this away. I would of course say this but, with respect, it enhances this part of the Bill. It will have the consequence of reducing the amount of contention that follows decisions if it is clear that people can expect that there will be reasons given for them.

I listened carefully to the amendment by the noble Viscount, Lord Eccles, and I have some sympathy. Coupled with the contribution of the noble Baroness, Lady Byford, there is an issue here that requires further exploration. I think that—with respect—there was a cross-purposes discussion that took place between the proposal of the noble Baroness for comments to be published, and the response from the Minister that that would in some way impede the process of investigation. I understood the noble Baroness to be

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saying that the comments and response deserve to be published. As these will be published in any event, it would be a much more coherent and comprehensive process that would command the support of parties if they thought that, even when there was a finding against them, the response would be published by the process rather than independently of it.

I hope that I have done credit to the amendment from the noble Baroness. In any case, conversations are about to take place and I hope that, when we all come back to this, there will be even bigger smiles on their faces, metaphorically, than I have at the moment, having managed to achieve even this minor victory. In the mean time, I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

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Amendment 33 not moved.

Amendment 34 not moved.

Clause 5 agreed.

Clause 6 : Investigations: forms of enforcement

Amendments 35 and 36 not moved.

Earl Attlee: My Lords, I think this may be a convenient moment to adjourn the Committee until Thursday at 2pm.

Committee adjourned at 7.26 pm.