My Lords, the other amendments in this group are consequential on the first, and challenge the perception that you can invest in one person so many powers without creating an inevitable conflict of interest. As we have already established in our deliberations, the Bill gives the adjudicator many powers in relation to disputes, including arbitrating, investigating and enforcing. It is axiomatic that the adjudicator must carry out these powers with independence and impartiality.
The Bill goes well beyond implying that investigation necessarily gives rise to conflict on the lack of impartiality in a later arbitration—indeed, it creates a mechanism for it. Although the Bill does not compel the adjudicator to appoint an arbitrator, it gives him or her a strong hint that that is what they should do. I know that in the Second Reading debate the noble Baroness was careful not to apply an imperative to that requirement, and suggested that the adjudicator would probably, in such circumstances, appoint someone else to arbitrate.
The reason for the amendment is that although I have some limited experience of arbitration, I cannot, from my research or my consideration of what this adjudicator would do, envisage any set of circumstances in which an arbitration would take place that did not require a prior investigation of some sort. I cannot believe that an adjudicator—particularly one who is expected to arbitrate in a limited number of cases in relation to the groceries code during the course of a year—would decide to use the powers that he or she is constrained to use sparingly, without some preliminary investigation and some conclusion that arbitration was necessary. I cannot conceive of any circumstances in which that argument of impartiality, or lack of it, could not be levelled at an adjudicator when a decision is made to arbitrate.
I am perfectly willing to defer to interventions or contributions to this debate from noble Lords in this Room—and there are many of them—who have much more experience of these sorts of circumstances than I had in my limited exposure to them during my legal career. I cannot think of the circumstances. As a consequence, and given the nature of this legislation, there is a strong implication that the arbitration function should be separate from the role of the adjudicator. Should arbitration be necessary, the adjudicator would be required to appoint a separate arbitrator. Otherwise, what is the point of all the provisions which say that investigations can give rise to the implication of a lack of impartiality? Where did they come from and why are they in the Bill at all, if that is not the logical conclusion?
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The first amendment in the group articulates how the mechanism would be imposed. The second amendment, Amendment 14, is consequential in the
sense that it requires the appointment of another person to arbitrate. We come then to Amendment 15, which I think is even more interesting than the other two. In effect it would incorporate into the Bill elements of the UNCITRAL model of arbitration code that we and many other countries across the world have agreed to. Why have I proposed that it should be incorporated into the Bill? The code is certainly incorporated into Scots law in the Arbitration (Scotland) Act 2010, and these provisions have been drawn substantially from the schedule to that Act. They impose this sort of conditionality on the person appointed to arbitrate in disputes of this nature. They require appropriate qualification and give those involved the opportunity to object, and impose consequences if those objections are not dealt with. I confess that I have not researched the relevant law in England and Wales to find out whether these provisions exist, but I suspect that they do.
I think that there is a reasonable expectation that we will conduct processes of this nature in a way that is consistent with the law more broadly, and in particular in the expectation that our law will comply with the European Convention on Human Rights, as well as with the international agreements that we make. So I offer in Amendment 15 an opportunity for the Government to incorporate into the Bill a set of rules which I believe they accept in any event. It would make it clear to the parties involved in the process that these will form the minimum expectation. The other amendments in the group are consequential.
Before I move the amendments, I should say that I have been greatly assisted in their preparation by Michael Clancy, the director of law reform at the Law Society of Scotland. Indeed, he has helped with all the other amendments to ensure that they comply with the drafting rules. I pay tribute to his work. He makes a significant contribution to legislation in Parliament and he deserves recognition for the assistance he gives to Back Benchers, parties and, indeed, to governments. I am grateful to him for his help on this occasion. I hope that I have made clear to Members of the Committee the reasons for these amendments so that they can be debated if necessary, and I beg to move.