Review of the Pubs Code

The start of the anticipated statutory review of the Pubs Code and the activities of the Pubs Code Adjudicator (PCA) was announced by the minister responsible, Kelly Tolhurst, the MP for Rochester and Strood, on 30 April. This review was always scheduled to happen and has not arisen because of concerns over the Code’s operation. The review will last for 12 weeks and will focus on whether, in the period to 31 March this year, the Code has achieved its purpose of ensuring that tied tenants have been treated fairly by the pub owning businesses (POBs). Those invited to contribute are tied tenants, past and present, their representative bodies, trade bodies and the PCA himself. Contributions can be submitted through the review’s website www.gov.uk/government/consultations/pubs-code-and-pubs-code-adjudicator-statutory-review. The e-mail address is PCAreview@beis.gov.uk. There will be a report issued in due course.

CAMRA’s chief executive, Tom Stainer, said, “The introduction of the Pubs Code could have marked a turning point for England’s community pubs but, since it came in, we’ve seen pub companies use every trick in the book to prevent the legislation from achieving what it set out to do. When Parliament brought in the pubs code its intention was for Market Rent Only to be a realistic option, and that simply hasn’t happened. This review is therefore essential and welcome, but for communities to stop losing pubs to predatory, short-term business practices, it must lead to meaningful reforms and to a code that is fit for purpose.” I’m sure that CAMRA will be contributing.

Brigid Simmonds, chief executive of the British Beer & Pub Association (BBPA), the POBs trade body, commented, “The six companies covered by the Pubs Code have always been committed to working within both the letter and spirit of the legislation to support the success of leased and tenanted pubs and publicans alike. While there have been some challenges with parts of the implementation of the code for all involved, the BBPA and the companies covered by the code continue to work closely with the Adjudicator and other stakeholders to resolve these. The BBPA welcomes this consultation as a valuable opportunity to assess the ongoing impact of the Code and the effectiveness of the Adjudicator, as well as to make suggestions for improvements.”

Ms Tollhurst said that she was ‘committed to ensuring the review is based on good evidence, which includes survey data, statistics and allowing all those who have an interest in the code to tell us about their experience.’ The minister does not however have the confidence of all involved, especially following her comment in an interview with the Morning Advertiser that she saw ‘negotiation to become the norm, with arbitration very much the exception.’ As a long-standing member of the Parliamentary Business, Innovation and Skills committee, she would have known that this was not the code’s intention. Consequently, on 12 March, Greg Mulholland and Simon Clarke, as chair and secretary respectively of the British Pub Confederation wrote to her saying, ‘This statement shows a worrying lack of understanding about the fundamental nature and purpose of the Pubs Code legislation. The Pubs Code is a statutory code, backed by a statutory adjudicator, and as such confers clear and defined rights on tenants that the Adjudicator is supposed support, clarify where necessary and uphold. It is not, and was never intended to be, simply another tool for ‘negotiation’. They also added that ‘the whole point of the Pubs Code is that it is a statutory code with statutory rights, not just a framework for negotiation – and indeed one of the chronic problems facing tenants is that pub companies thwart the rights of tenants by deliberately prolonging negotiation, when the Code should prevent them from doing so.’ It was an excellent letter but unfortunately too long to reprint here. Watch this space…

Finally, as an example of the sort of practice that POBs indulge in, when calculating rent levels they have been using the price of 72 pints per firkin as income despite it being acknowledged by HMRC that casks cannot yield this quantity because of sediment and ullage (plus, I believe, the occasional under-filling). The PCA said that this could be dealt with ‘within the existing statutory framework.’ It is one thing to play fast and loose with the terms of the Code but surely not with the Laws of Physics.

Tony Hedger