My Lords, I will speak to Amendments 12, 96, 124 in my name and that of my noble friend Lord Grantchester, which are about the powers to abolish the adjudicator. It is always a little worrying when a Government are thinking about the manner in which they will dispose of a new office before it is even established. Clearly, this is what the Government have done. Clause 16 provides both for the transfer of the adjudicator’s functions to another public body and the outright abolition of the adjudicator, something which one or two Members of this Committee would, I am sure, welcome.
The fact that the Government have made such specific provisions rather implies that they already have a good idea about what they expect to happen to the adjudicator after a couple of years. A more cynical person might infer from this that the Government have calculated that they can benefit from a few good headlines now in setting it up, and then quietly merge the office with the Office of Fair Trading, or the new Competition and Markets Authority a couple of years down the line. That would probably feel like a very efficient win-win to the Government; but this is obviously a highly cynical view. The Government could even quietly get rid of the thing altogether with a simple Motion in Parliament.
We have heard how this issue has exercised suppliers to supermarkets for some time. It has been the subject of campaigns for a number of years. I do not believe that the affirmative resolution is in this instance a high enough threshold for Parliament to allow the Secretary of State to abolish this public body so easily. The reason for this goes to the heart of what the adjudicator is there to achieve, and to the arguments on the powers which the adjudicator should have available. In a sense, if the adjudicator never initiates a single investigation or uses a single one of his or her powers, this could just as easily indicate success as it could do failure of their functions. The reason for both the code and the adjudicator is not to catch retailers out so much as to compel good behaviour and to make clear where the boundaries lie between competitive and anti-competitive practice. The presence of the adjudicator alone, especially an adjudicator with teeth, such as strong powers to fine, should, we hope, be enough of a deterrent to ensure that retailers never stray beyond the rules of good practice set out by the code. If a referee—or, if it pleases my noble friend Lord Browne of Ladyton, a quasi-referee—goes through an entire football match without giving a single booking, you would applaud it as a success. You do not question the future need for the referee.
It is therefore worrying that the Government have included a mechanism for the adjudicator’s abolition without giving any indication of how they intend to measure the continued value of an adjudicator. At the very least, the bar for abolition should be set higher than it currently is within the Bill. Our amendments 12,
96 and 124 would require the Government to follow exactly the same procedures as are set out in the Public Bodies Bill model of a super-affirmative order in order to abolish the office. Indeed, in proposing these amendments, we are seeking some consistency from the Government.
5.45 pm
Just yesterday in this Room I led the Opposition debate on the transfer of powers from British Waterways to the Canal and River Trust and on the abolition of the Inland Waterways Advisory Council. Those orders originated from the Public Bodies Act and used the super-affirmative procedure. We were guided by an extremely useful report from the Secondary Legislation Scrutiny Committee, its first report of this Session, which sets out the reasons for triggering the extended period of consultation around those particular orders that the super-affirmative procedure allows. The procedure would require the Government to undertake a thorough process of consultation on any proposal in order properly to ascertain whether, for instance, adjudicator inertia was an indicator of a well functioning market regardless of, or because of, its presence. Crucially, it would also allow Parliament to amend any such order which, in other forms of order-making, is not possible. For instance, should Parliament believe that there was a case for scaling back the adjudicator’s role rather than its complete abolition, it could do that.
While I am all for efficiency, there is something perverse about providing for the manner in which a new public body should be abolished before it is even set up, but I accept that it is in the legislation and that the Government might want to do that. However, the Government should make it clear to Parliament what their long-term plan for the office is, how they will distinguish between a successful and an irrelevant adjudicator, and they should certainly adopt the better practice that we fought hard for in your Lordships’ House when we passed the Public Bodies Act, that of the super-affirmative procedure. If I could beg to move I would do so, but I suspect that I cannot.