My Lords, I am grateful to the noble Viscount, Lord Eccles, for expanding into a potentially fruitful area my further deliberations on this. I had not thought to look at the terms of the code itself, but his drawing my attention to the detail of the provisions on arbitration points to an area at least worthy of consideration: the interaction between existing provisions and those that would be enacted by the Bill, which are less descriptive. It interests me that the Government have chosen to legislate in way that is less clear than the simple provisions in the code, which the noble Viscount read out, composed by the Competition
Commission. I will take some time to deliberate on that, but it is an area worth exploring, perhaps at a later date.
I am grateful to the noble Baroness for giving these amendments such careful consideration, and for her words suggesting that they raise an important issue. It is an important issue and I remain to be convinced that it would be appropriate for the adjudicator to embark on arbitration without doing some prior investigation. I suppose that it depends on what one means by “prior investigation”. Given that it is expected that the adjudicator will arbitrate in a very small number of cases over the course of a year, I would expect that he or she would pay great attention to whether it was appropriate to deploy scarce resources on such a request, even if it came from a big retailer.
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I honestly cannot conceive of a set of circumstances in which an arbitration—not a request for an arbitration—is embarked on where there has been no prior engagement with the issues. I am willing to be dissuaded from this view, but it is an important issue and I will take advantage of the invitation from the noble Baroness to speak to her. I had the benefit of discussions with a member of her Bill team and found them very helpful in relation to all my amendments, so I am happy to engage again because that is my approach. I am not interested in creating unnecessary regulation or making the Bill unworkable. I am interested in trying to make the legislation work. Certainly I seek to avoid creating an industry of judicial review of decisions. Big issues are at stake here in relation to these large organisations. If this works in the way that many of us want to see it work, it must work to a conclusion and it must be settled. I am not interested in being party to creating a vehicle for further deliberations in courts that will take forever and eat up scarce resources. We use up far too many resources and this is an attempt to avoid doing that—and it is a noble attempt, so I will take up the invitation of the noble Baroness and speak to her and her Bill team so that they can explain why I am wrong, because I cannot conceive of those circumstances.
Finally, I am grateful to the noble Baroness for explaining—I will need to go away and read this carefully—the mechanism by which the provisions of the Arbitration (Scotland) Act 2010 and the equivalent piece of legislation in England and Wales are incorporated into the process. I am reassured if that is what is intended and if that will be the effect. I am slightly concerned about the use of the qualification “broadly”. This is not the time to explore that, but there may be a time on the Floor of the House to explore what “broadly” means, how broad that discretion is and whether there is a possibility that we will create the potential for arbitration that does not meet rules that the Scottish Parliament and this Parliament, for example, sought to impose on arbitrations in Scotland, England and Wales.
I say that advisedly because there is another noble ambition. Our country has an enviable history in the administration of justice as a world centre for arbitration. If we are not consistent in the way in which we apply the rules that we set up in order to create that environment,
we will continue to lose out to places such as Singapore where people will go for their arbitrations because there is consistency. We need to be careful. It would be detrimental to the ambitions of the Governments and Parliaments of both Scotland and the United Kingdom to create the environment of a centre for arbitration if people can play ducks and drakes with the rules imposed on them by legislation.
I do not intend to take any more of the Committee’s time and I will take advantage of the very generous offer to discuss this between now and Report. I hope that we will be able to find a way to move forward without the necessity for another debate. In the mean time, I beg leave to withdraw the amendment.