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With this it will be convenient to discuss the following:
‘or the Deputy Adjudicator or any person acting on the Adjudicator’s behalf’.
Amendment 30, in clause 18, page 7, line 42, after ‘Adjudicator’, insert
‘or the Deputy Adjudicator or any person acting on the Adjudicator’s behalf’.
It is super to see you back in the Chair, Mr Williams, for what we hope will be our last sitting on the Bill. It feels a little like the last day at primary school. Everyone will fondly recall taking pets and toys into school on the last day, so you will be pleased to hear that I do not have with me a Twister game for the Committee to play or, indeed, Hoagie the hamster, who used to come into school with me. If in every contribution this morning we could hear about what pet the hon. Member took into primary school, that might lighten the mood of the Committee, but let me now return to the groceries code adjudicator, which is the issue at hand.
Our amendments 26, 28 and 30 would merely extend the obligation of confidentiality beyond the adjudicator to their deputy and staff. Currently, clause 18 limits the obligation of confidentiality to the adjudicator. We believe that this is too narrow. Persons connected to the adjudicator should also be covered by this statutory confidentiality provision, and that includes the deputy adjudicator and the adjudicator’s staff.
One of the fundamental principles of the adjudicator will be its ability to investigate complaints and maintain the confidentiality of the identity of the complainants. One of the principles of the whole Bill is to ensure that people feel confident that they can take cases to the adjudicator, whether that be directly, from supplier to adjudicator, or through a trade body or third party.
The Competition Commission found that many suppliers were afraid to make complaints, as they were concerned that that would lead to retaliatory treatment by the retailer—for example, the retailer might stop trading with them completely—so protecting the identity of suppliers will help them to feel much safer in raising disputes with retailers that have breached the code. Therefore it seems eminently sensible that the obligation of confidentiality should also cover the other individuals in the office of the adjudicator, including the deputy adjudicator and any person acting on the adjudicator’s behalf.
You will be pleased to hear, Mr Williams, that the Minister has been in a very generous mood while you have not been in the Chair. She has accepted absolutely none of our amendments so far, but she has taken them in the spirit in which they have been delivered. I am sure that she would agree that we would not want to create a situation in which confidentiality was not applicable to anyone on the adjudicator’s staff other than the adjudicator themselves. I have concerns that that could raise certain legal issues in the process of conducting investigations or, indeed, just gathering evidence as the adjudicator’s role develops in the months and years to come. Again, if the Minister is unwilling to accept any of our amendments, which I suspect will be the case, we may return to the issue on Report, but I look forward to hearing what she has to say on confidentiality.
It is a real delight to see you back in the Chair, Mr Williams, and to be back in Committee. It is also wonderful that we have been joined by the hon. Member for Ogmore, who sadly was nothing more than a presence on the green annunciator screen on Thursday afternoon when he was dealing with his other duties in the Chamber. Members of the Committee will be glad to know that my cold is getting better. I am potentially, therefore, feeling even more generous towards the Committee, although the odd cough and sneeze from others in the Committee might suggest that my Christmas present of a cold has in fact been transmitted. I am feeling generous, yes, but perhaps not quite generous enough to accept the amendment this morning. None the less, I hope to be able to provide the hon. Member for Edinburgh South with some reassurance, because he is right to say that confidentiality is very important to the smooth functioning of the adjudicator and, most importantly, to the confidence that suppliers will have that they are free to make complaints.
We do ensure in the Bill, through clause 18, that there is a strict duty of confidentiality on the adjudicator. The amendments tabled by the hon. Gentleman would explicitly extend that to the deputy adjudicator or anyone else acting on the adjudicator’s behalf. I would like to give the reassurance that anyone acting on the adjudicator’s behalf—or, indeed, of the deputy adjudicator—would already be covered and bound by the duty of confidentiality as set out in clause 18. Normal agency principles will apply. If someone who is acting on behalf of the adjudicator breaches clause 18, the breach will have been made by the adjudicator themselves. The deputy and any others carrying out the adjudicator’s functions will not have any functions independent of the adjudicator, so they will be subject to exactly the same restrictions. We agree that confidentiality is important, and we believe that clause 18 will provide that.
I am grateful to the hon. Gentleman for tabling the amendments, because they have given us the opportunity to clarify that point, which I think is helpful to all involved. As he rightly says, we want to ensure that the climate of fear is tackled, and that is what the Bill aims to address. I am hopeful that he will decide to withdraw the amendment.
I have been slightly unkind to the Minister, because I had neglected to mention that we defeated the Government last week; in fact, we encouraged the Government to vote against one of their proposals when it was discussed. My hon. Friend the Member for Ogmore may be surprised to hear this, but on clause 9, we defeated the Government and deleted schedule 3 from the Bill, because the schedule was not competent. They voted against it none the less. We have won one vote in this Committee.
I am reassured by the Minister. The amendments are probing in nature, simply to ensure that the confidentiality clause in clause 18 covers everything—the adjudicator in their office and everyone working for them. Given that reassurance and the confidential clause in clause 18, I beg to ask leave to withdraw the amendment.
With this it will be convenient to discuss the following:
Amendment 59, in clause 18, page 7, line 37, leave out from ‘Adjudicator’ to end and insert
‘should reasonably believe could cause the identity of the complainant to be revealed’.
Amendment 31, in clause 18, page 8, line 9, at end add—
‘( ) Any person who, in contravention of this section knowingly discloses any information obtained when employed by, or acting on behalf of, the Adjudicator is guilty of an offence and liable on summary conviction to a fine.’.
The amendments are another group of probing amendments. Amendments 27 and 29 may seem to be in the mode of the hon. Member for St Ives—slightly pedantic—in proposing to change “may” to “must”.
I think the hon. Gentleman tried to change “may” to “must” or “must” to “may” last Thursday. Here, we are trying to instil confidence in clause 18 and make the obligation of confidentiality mandatory and not, as the clause currently reads, potentially discretionary. I am interested in what the Minister has to say.
The obligation of confidentiality under clause 18 as it currently stands can be argued to be discretionary rather than mandatory. Our amendments would clarify that the obligation is mandatory and that it must be enforceable. The provision of a statutory offence would ensure that the obligation is respected.
When the Bill was debated in Committee in the other place, the Minister responsible, Baroness Wilcox, resisted a similar group of amendments, taking the view that “must not” and “may not” “have the same force”. She argued that there was no reason why the amendments should be accepted and the clause made clearer.
The Bill itself uses “must” to signify duty, for example in clause 14(5), under which the adjudicator “must” send a copy of the annual report to the Secretary of State, and the Secretary of State “must” lay a copy of the report before Parliament. That is contrasted with the discretion given to the Secretary of State to make an order regarding information to be considered when deciding to investigate, under clause 15(10), or to transfer functions, under clause 16(1).
We were also disappointed that Baroness Wilcox resisted extending the obligation of confidentiality to the deputy adjudicator. She said that she was “confident” that the obligations so exist, and we have heard the Minister’s response and reassurance on that issue already.
Amendment 31 would provide a criminal sanction for a breach of obligation of confidentiality. Does the Minister agree with her colleagues in the other place that “must not” and “may not” have the same force? If not, I hope that she will be willing to accept our amendment.
With regard to amendment 31, which would add a criminal sanction, although confidentiality is clearly written into the Bill in clause 18, there are no sanctions to prohibit breaking that confidentiality agreement. Therefore, with the clause having no criminal or civil sanction, there is no carrot and stick approach in terms of keeping that confidentiality. Of course, adhering to confidentiality would be in the adjudicator’s interests as they will want to be respected and have the confidence of both the suppliers and the large retailers, but without that potential for a sanction, any breach of the confidentiality obligation has less impact. I hope that the Minister will look at that point and give some reassurance that confidentiality is enshrined within clause 18, with sanctions for if that confidentiality is breached.
I thank the hon. Gentleman for tabling these amendments. I suspect that they were tabled in a probing capacity but we may yet find that he intends to press them. On Thursday afternoon we had a good discussion about the differences between “may” and “must”, with “may” being permissive. I think that the main point he seeks to tease out is on how firm the confidentiality protections are in clause 18. I hope to reassure him and the Committee on that point.
As it stands, the drafting is clear: the adjudicator should not disclose the identity, or any other details, of complainants except in three very narrow cases. Those are: with the consent of the complainant, which is uncontroversial, or if obliged to by either EU law or the Courts. Clearly, we need to ensure that legislation passed in this place is compliant with existing law.
The hon. Gentleman suggests that “must” would make subsection (1) prohibitive, whereas “may” would not, but we believe that the correct legal definition is in the Bill as it stands. In this context, the word “may” is clearly intended to appear prohibitive. There may be other contexts in which “may” and “must” have different meanings, as we discussed last Thursday afternoon, and “must not” would not be particularly wrong, but it would make less sense, so “may not” is better in this circumstance. If “may not” was permissive here, that would mean that the adjudicator would be allowed not to make unauthorised disclosures, which does not make a lot of sense. If the hon. Gentleman seeks further clarification on that point, I refer him to clause 18 (5), which states that,
“the prohibitions contained in this section are in addition”.
In addition to the context in which the words exist, that makes it clear that the wording is prohibitive; it would not be allowed to happen. The intent of the clause is clear, and it would be interpreted in that way by the adjudicator and any other reasonable parties. It has been helpful to clarify that, and put on the record that the clause is clear on that front for anyone who wishes to understand the meaning of the wording.
I understand the sentiment of amendment 31, which would create a new offence with the potential of a fine to be levied if someone were convicted. However, creating a new offence is a serious undertaking and, in this case, I do not think that it is necessary. The adjudicator will already be a public authority and, therefore, expected to take their statutory duties seriously. If the Committee seeks additional reassurance, I refer it to schedule 1(6)(e), which says,
“the Secretary of State may dismiss the person if satisfied that the person is unable, unwilling or unfit to perform his or her functions.”
Given the importance of confidentiality, which we outlined already, it is fair to say that serious breaches of confidentiality—either by the adjudicator or by people working for him or her—would have the potential to invoke that clause. Therefore the threat of dismissal is—if you like—a stick, a deterrent, although I am not convinced that a stick is necessary.
The hon. Gentleman talked about the lack of sanctions, but he also said that it is in the adjudicator’s interest to make sure that the provision works well. We expect to have somebody in post who will be able to command respect across the industry and who will take their job very seriously. If things went horribly wrong, they would have the protection in schedule 1, but we do not expect such a situation to arise in the normal course of events.
On amendment 59, the existing wording in the Bill is already adequate. There is already a demanding duty for the adjudicator. Of course, as a public office holder, they are subject to the normal constraints of public law. It is clear that the adjudicator must seriously consider the risk of identifying a complainant when disclosing information. There is no possibility that they can simply ignore or close their mind to the issue to avoid triggering the prohibition. The way in which they undertake their responsibilities under clause 18 will be important, and the protections and the meaning are clear in the Bill as it stands. However, I welcome the opportunity to provide further clarification for the Committee on that point.
I appreciate what the Minister says. I do not want to get into the semantics of “may” and “must”, Mr Williams, but at the start of the formal sitting of the Committee, you told hon. Members that they “may” take off their jackets. If you had said that they “must” take off their jackets, it would have had a slightly different meaning, because we would have had to take off our jackets. In that context, “may” and “must” have different meanings. Clause 18(1) states:
“The Adjudicator may not make an unauthorised disclosure of information relating to an arbitration under the Groceries Supply Order”.
It does not say that the adjudicator must not in any circumstances release the identity of a supplier.
I hear what the hon. Gentleman says. Given that it says he “may not”, it is therefore clear that if he were to do so, he would not be able to say, “I may do it”, because it clearly states that he may not. The hon. Gentleman puts his finger right on the point when he says this is all about the context.
Yes, it may. If Mr Williams had said, “You must not give way”, I would not have. It is a semantic point, but it is important to examine the language and to get confidence in the critical parts of the Bill. There is nothing more critical in the Bill than the confidentiality clause. Suppliers need to be able to have confidence in the code. We are talking about breaches of the code, not speculative or vexatious claims. If a supplier, a third party or a trade body has evidence that there has been a significant breach of the code, it would be wrong if the person pursuing that complaint did not feel that their confidentiality would be maintained. I will not press the Committee to a Division on “may” or “must”. We may or we may not, or we must or we must not delay the Committee any longer than is required.
The Minister also mentioned amendment 31 and having an offence in the Bill. I appreciate that the Secretary of State can dismiss the adjudicator, but by the time the Secretary of State has got to a point where he or she feels that the adjudicator is unfit for purpose, many suppliers or large retailers will have lost confidence in the adjudicator and may have had their businesses and contracts severely disrupted, if not ruined by the adjudicator making claims that may or may not, or must or must not, have been disclosed. I beg to ask leave to withdraw the amendment, but I want us to consider the “mays”, “musts” and “may nots” as we progress to see whether further probing is needed.
My utterances are suspect enough without further debate.
‘(3A) Notwithstanding subsection (3), the Adjudicator shall, before permitting any disclosure of the identity of any complainant or provider of information to the Adjudicator, take all practical steps to protect the identity of that person by redacting, anonymising and where appropriate otherwise limiting the disclosure of identifying information to any third party and further by obtaining binding undertakings of non-disclosure from any person to whom identifying information is disclosed.’.
The amendments show the significance and importance of “absolutely”. Perhaps the word “absolute” needs to be introduced at this stage. Suppliers and those who may be the source of information to the adjudicator need to be absolutely reassured that their identity will be protected.
The important and significant difference between where we were three years ago and where we are now is that a clear climate of fear existed throughout the supply chain under the previous voluntary code, which was pretty much unused. It was certainly ineffective and the competition authorities were clear in their reports and assessments that the code was toothless and worthless.
One of the primary advances, on which I must congratulate the Government, is the introduction of a strong element of reassurance that confidentiality will be protected, but it is important to get the wording in clause 18 absolutely right to ensure that the message goes out to the industry, throughout the supply chain. A party may have evidence and decide to pursue the matter. When they make the adjudicator aware of that evidence, they must be reassured that there is not something that will put them at risk if the retailer decides to pursue the matter to the nth degree and to take it to court to appeal. The supplier of that information and the supplier to the retailer must be reassured that something later in the process will not put them at risk. That is why the hon. Member for Edinburgh South, who was not being pedantic—I do not think that any of the amendments so far have been pedantic—was absolutely right to highlight the importance of finding additional belts and braces and of getting reassurances that those who supply information can and will be protected.
Clause 18 currently states:
“For the purposes of this section a disclosure of information is unauthorised unless—
(a) the Adjudicator has obtained the required consent;
(b) the disclosure is required for the purpose of an EU obligation”.
I would have thought that my dear Conservative friends—I know a large number of them become exercised whenever the UK feels under the cosh due to an obligation to the EU—would be delighted to see paragraph (b) deleted, as amendment 17 would do. I am sure that I have their support on that amendment. The amendment would also delete paragraph (c):
“the disclosure is required, under rules of court or a court order, for the purposes of legal proceedings of any description.”
May I welcome both the spirit and the intention behind the amendments? Will the hon. Gentleman comment on whether he thinks they are particularly important not only to protect those in the UK supply chain but those overseas as well? These amendments are very much in the spirit of the requests that have been made about confidentiality by organisations such as Traidcraft, ActionAid, War on Want and many others.
The hon. Gentleman is absolutely right. International law and obligations on overseas suppliers or sources of information adds a further dimension of potential complexity and difficulty. One has to question the extent to which an Act will be able to place an obligation on overseas suppliers. I would be interested to know what the Minister has to say about that.
Amendments 17 and 18 seek to ensure that the substance of the evidence is supplied without disclosing or putting in jeopardy the complainant, or the source of the information. Amendment 18 addresses the need to redact and protect. It is not a question of seeking to frustrate the will of courts through an Act of Parliament—I am not sure that could be achieved anyway. With both amendments, we aim to give absolute reassurance that, if information is supplied to a court, it will be done so in a way that protects the identities of those who supply the information and does not place them at risk of de-listing or any other retaliatory action.
If a retailer disputes the adjudicator’s decision, it may appeal to the adjudicator. At that point the retailer will find itself in court, and it is important that the identity of complainants or suppliers is kept confidential. I think the Minister agrees with that. All sources of those complaints and the information underlying them should also be protected. We seek reassurance that we will send a strong message to suppliers of information to the adjudicator that, ultimately, they will be protected. Suppliers need to hear that, where complaints are not malicious or false, the identity of complainants will be kept confidential. I look forward to the Minister’s response.
Given the importance of the clause, I welcome the opportunity to probe it and to get clarity for the Committee about its strong protections of confidentiality. My hon. Friend was a key campaigner to ensure that we could have third-party complaints. It is important that there is confidentiality in terms of the climate of fear. It is therefore important to ensure that the Bill works as intended. He is right to raise issues to ensure that it does what it says it will do.
However, I am not convinced that my hon. Friend’s amendments are the right way to do that. Amendment 18 could have some unintended consequences that would be unhelpful to suppliers, and amendment 17 would create issues about whether the measures complied with existing law, and whether there was a conflict between our international and domestic legal obligations.
In particular, striking out the references to an EU or court obligation to disclose, as amendment 17 sets out, just would not be workable. An EU obligation to disclose information is just that: it is an obligation under international law, and the adjudicator must comply with that. It is fair to say that we think it very unlikely that a situation would arise in which there would be an EU obligation to disclose, but we cannot exclude the possibility, and we do not want to leave the adjudicator in a position where they have to choose between breaking EU law and breaking domestic law as defined by the Bill.
Similarly, we should not exclude the possibility that a court could ultimately order the disclosure of an identity if it is absolutely necessary to deal with court proceedings fairly. However, I think that my hon. Friend was keen to get clarity, and I hope that I will be able to reassure him. He talked about a message going out about confidentiality being really important—clause 18 gives a very strong signal about Government and Parliament’s intention for the adjudicator, the adjudicator’s confidentiality responsibilities, and the importance of protecting them for complainants.
The courts, of course, would have to give significant weight to Parliament’s intention when looking at this issue. They are used to dealing with sensitive information and issues. My hon. Friend mentioned looking at different ways to provide information if disclosure were necessary. I would like to reassure the Committee that there is already a range of practical measures that can help to keep the identity of complainants secure, even if information has to be provided to a court. An example would be redaction, a word that perhaps was not in common parlance until 2009, but now every MP knows exactly what it means. Other examples include substituting anonymous references, ordering disclosure to lawyers only, and even hearing proceedings in private, so there is a range of ways in which a court could get information if it were required, while protecting confidentiality.
However, it is important to stress that that is at the discretion of the courts. There is no need to specify it in legislation, but we are making very clear the importance of confidentiality in the Bill, and, of course, courts do take a steer from Parliament as to the intention of the law. Going further, as my hon. Friend suggests, would not be appropriate. Every incident will be quite different, and the facts of the case will be different. That is why we have courts that can use their discretion and look at the specific circumstances.
I mentioned that I thought amendment 18 was potentially unhelpful. It requires the adjudicator to “take all practical steps” to limit
“the disclosure of identifying information”.
I am sure that that is well intentioned, but, as currently drafted, the Bill makes it clear that there are only three very narrow and specific exceptions to the general provisions for confidentiality: the two legal ones I have just discussed, and the very uncontroversial one where the complainant has consented. By specifying “all practical steps”, the amendment implies that there may be other reasons outside those exceptions for the adjudicator to divulge identity details. I am sure that we would not want to put that into law, because it would create less clarity for suppliers. It would be better not to raise any doubts about such a crucial tenet of the adjudicator’s effectiveness, particularly on the ability to keep complainants’ identities secret.
I hope that I have reassured my hon. Friend about the protection of confidentiality in the Bill as it is currently drafted. It is very strong, very clear, and it is absolutely as far as we can go while recognising the legal situation. I therefore hope that he will be happy to withdraw his amendment.
I am very grateful to my hon. Friend for her reassurance. We are trying our best to anticipate a set of circumstances. We are trying to prevent disclosure that would create or re-create a climate of fear, because we believe that that would entirely disable the effect of both the code and the adjudicator.
The amendments are intended to probe the issue, and it is enormously helpful to have my hon. Friend’s comments on record. I am grateful to her for pointing out the slight technical deficiencies in the amendments, because that will allow me to review them, taking into account her comments, and return to the matter on Report, if I decide to do so. That is something that we will have to reflect on. If it is a question of compliance with the law, and obligations under the law, we will have to reflect on that as well. I am grateful to my hon. Friend, because the record will now help to send the message that I believe the Bill should send, and I hope that that will give suppliers the reassurance that they deserve. On that basis—perhaps I should have said at the outset that I did not intend to press the amendment to a vote—I beg to ask leave to withdraw the amendment.