Statutory Instruments (Amendment) Bill [HL]

Debate between Baroness Finn and Baroness Twycross

Committee stage
Friday 14th March 2025 Lords Chamber

[Baroness in Waiting/Government Whip (Baroness Twycross) (Lab)]

My Lords, I thank noble Lords for their contributions today and the noble Lord, Lord Thomas of Gresford, for his continued work championing the important issue of secondary legislation.

As we all know, this House plays a vital role in ensuring that all legislation brought forward by this Government is of the highest standard. I am grateful for the role played by committees of this House, including the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee, in ensuring that statutory instruments are subject to appropriate scrutiny. Our current procedures and processes for statutory instruments allow for both Houses to scrutinise and debate instruments.

Turning to the first group of amendments, which address the scrutiny of instruments in this place, I believe that these amendments are well intended, and I recognise that they represent a check on the power of this place and assert its right to scrutinise instruments laid before it. However, the Government’s view remains that we should continue to get this right in the first instance. That is why, as my noble friend Lady Anderson set out at Second Reading, we must focus our efforts on ensuring that statutory instruments are delivered to the highest quality in the first place.

That is not to say that the situation is perfect. This Government are aware that Parliament has not always been given the information it needs to fully scrutinise legislation, and the Secondary Legislation Scrutiny Committee has sometimes asked for further detail. This has on occasion led to some Explanatory Memoranda being replaced to include that information. But I remind the House, and, I hope, reassure the noble Lord, Lord Hunt of Wirral, and the noble and learned Lord, Lord Thomas of Cwmgiedd, that this Government have pledged, and intend, to do better. This does not mean, however, that we need to revise the procedures for the consideration of statutory instruments.

In a similar vein, while I thank the noble Baroness, Lady Finn, for her amendment which seeks to ensure that this House does not have greater powers to amend statutory instruments than the other place, I maintain that the Government’s position is that the legislation before us is not the way to remedy our processes regarding such instruments. I am, none the less, grateful to her for drawing attention to the importance of maintaining a balance between the powers of our Houses.

Additional training, resources and guidance have been and continue to be developed and revised as appropriate to support our ongoing efforts to do better. This includes training and resources for Ministers and civil servants, and last month the Guide to Making Legislation was updated. This update includes a new delegated powers toolkit which has been produced by my noble and learned friend the Attorney-General and which will support departments to decide whether to include a delegated power in a Bill. Our hope is that this will support the subsequent development of quality instruments and supporting documentation.

The final group concerns the technical correction of statutory instruments. It would be remiss of me at this point not to draw the Committee’s attention to the excellent work carried out by the National Archives, which oversees the so-called correction slip process. This is a well-established process through which the Government can already make minor, non-substantive corrections to defective statutory instruments after their publication. The National Archives does an excellent job in assessing whether a corrections slip is appropriate on a case-by-case basis and, where applicable, issues the slip to the Vote Office in the Commons and the Printed Paper Office in the Lords.

[Baroness Finn (Con)]

I think the Minister may be talking to the next group of amendments.

[Baroness Twycross (Lab)]

My apologies.

[Baroness Finn (Con)]

My Lords, I thank the noble Lord, Lord Thomas of Gresford, for his response to my amendments, and I am grateful to my noble friend Lord Hunt of Wirral and the noble and learned Lord, Lord Thomas of Cwmgiedd, for their contributions. Having been a member of the Secondary Legislation Scrutiny Committee when I first joined your Lordships’ House—I think it was during the first two or three years of the Brexit legislation—I have full sympathy with the points made on Explanatory Memoranda and lack of impact assessments, so I fully support all that my noble friend said on that.

The noble Lord, Lord Thomas of Gresford, made the point that he disagrees with my Amendments 1 and 2 about only the Minister having the power to lay the statutory instruments before the other place and the time limit. I understand his arguments. On Amendment 3, if we do not want to leave any doubt on “may” or “must”, it is probably simpler to leave it as “must” rather than “may”.

However, I entirely sympathise with the reasons of the noble Lord, Lord Thomas of Gresford, for drafting the Bill. Presently, your Lordships have a binary choice of whether to reject an SI or approve it. There is no procedural mechanism for the Government or Members in another place to consider your Lordships’ reasons for refusal. The Bill would allow any challenge from your Lordships’ House to be considered in another place, and I am pleased that there is within the Bill the clear power for the elected House to reject the proposed changes recommended by noble Lords. This, as the noble Lord argued at Second Reading, preserves the primacy of the elected House over the revising and scrutinising Chamber.

That said, as we will debate in the next group, it is not clear why the power to initiate the “think again” process is vested solely in your Lordships’ House under this Bill. I am pleased to have been able to put our concerns on the record, but, as I said at the beginning of our debate, we support the intentions of the noble Lord, Lord Thomas of Gresford, in bringing forward the Bill. We hope that our constructive amendments have provoked a useful debate on the appropriate powers that this House should have to amend secondary legislation. I beg leave to withdraw the amendment.

--- Later in debate ---

[Baroness Finn (Con)]

My Lords, Amendment 4 seeks to grant another place the same power to initiate the “think again” procedure under Clause 1. In the other place, secondary legislation is considered differently than in your Lordships’ House. When an affirmative statutory instrument is tabled there, it is automatically referred to a Delegated Legislation Committee. These committees have 16 to 18 members, and any member can attend and speak, but only members of the committee can vote. A Delegated Legislation Committee considers an SI but does not have the power to stop it. In some rare cases, the statutory instrument is not referred to a committee but is debated on the Floor of the House if it is of particular interest. Once the statutory instrument has been debated by a committee, it needs final approval by another place before being made and becoming law.

As noble Lords will see, the other place suffers from precisely the same handicap as your Lordships’ House when considering secondary legislation. It has the binary choice to approve or not to approve. That is the question.

I tabled this amendment to probe the willingness of the noble Lord, Lord Thomas of Gresford, to grant an equal power to the other place to initiate the “think again” procedure. We are open to discussions on the precise drafting of this amendment, but it is the principle we are seeking to probe. Why should your Lordships’ House have the power to trigger a process by which Ministers are asked to think again when another place does not have that power? I accept that the Bill grants another place the ultimate say on whether Ministers are forced to amend their instrument, thus preserving the primacy of the elected House, but we do not understand why it is only your Lordships’ House that can initiate a process that asks the Government to reconsider.

[Baroness Twycross (Lab)]

I am not going to go over all the points I already made in anticipation of the noble Baroness’s introduction of group 2. As I made clear, additional training, resources and guidance have been, and continue to be, developed and revised as appropriate to support our genuine, ongoing effort to do better. We hope that this will support the subsequent development of good-quality instruments and supporting documentation.

Procurement Act 2023 (Consequential and Other Amendments) Regulations 2025

Debate between Baroness Finn and Baroness Twycross

Monday 10th February 2025 Lords Chamber

[Baroness Finn (Con)]

My Lords, while the Government’s proposals may appear to serve the public interest, we have a lot of sympathy with the regret amendment in the name of my noble friend Lord Robathan.

This Labour Government promised to “simplify the procurement process” and “reduce micromanagement” to foster innovation—a noble intention. Yet, as we assess Labour’s position on procurement, we must ask whether the Government are creating a more accessible and efficient system and truly simplifying procurement, as the Bill intended, or whether they care more about stifling competition for their friends in the unions or prioritising costly equality and green add-ons.

The Procurement Act 2023, introduced by the previous Conservative Government, aimed to streamline procurement, reduce micromanagement and encourage innovation. Labour claimed to support these principles in its election manifesto, promising a more flexible and accessible procurement landscape, particularly for small and medium-sized enterprises, SMEs. However, this Government have since delayed implementing the Act from October 2024 to February 2025 to publish a new national procurement policy statement. Does this not simply prolong uncertainty, making it harder for businesses, especially SMEs, to engage with government contracts?

I turn to the details of the regulations. The regulations propose consequential amendments to align the Procurement Act with previous rules and to comply with international obligations, including the latest updates to the World Trade Organization’s agreement on government procurement. But do these amendments contribute to a more efficient, transparent procurement environment, or are we merely preserving outdated structures that complicate rather than streamline the process?

One notable change being made is the revision of thresholds and direct award justifications. Regulation 8(6), for instance, allows contracting authorities to award contracts to previously excluded suppliers if that is deemed in the public interest. This raises the question: where is the accountability? This provision opens the door to increased discretion in awarding contracts, which could undermine transparency and encourage favouritism. Without clear guidelines, we risk creating a procurement environment that is less competitive and more susceptible to conflicts of interest.

We also see an expansion in reporting requirements, particularly in terms of key performance indicators. While transparency is crucial, can we expect these new requirements to overwhelm contracting authorities, especially smaller ones already struggling with administrative burdens? The regulations mandate reporting on a broader range of metrics, which could impose significant strain on public bodies, diverting scarce resources from public services.

Moreover, these changes place greater responsibility on smaller contracting authorities, local councils and SMEs, which may struggle to comply with a more complex system. Larger organisations may have the resources to absorb these demands, but smaller entities could be disproportionately affected. In our effort to create transparency and accountability, we must be cautious not to stifle innovation or dissuade SMEs from engaging in public procurement.

The revisions to procurement thresholds also risk undermining the Procurement Act’s original intent of promoting fairness and inclusivity, particularly for SMEs. By increasing reporting requirements and complicating the procurement process, we may create a system that is more navigable for larger businesses while leaving smaller ones behind.

One of the key concerns around Labour’s changes is their impact on small businesses. Labour’s manifesto promised

“greater access to government contracts”

for SMEs, but new procurement rules risk introducing more red tape, making it harder for SMEs to compete. Rather than fostering innovation and inclusivity, these regulations enforce the status quo, favouring larger, established players with the resources to navigate complex procurement procedures.

We must also consider the impact on local authorities and public sector bodies. The delay in implementing the Procurement Act has already caused significant disruption. While the Government claim that the delay allows for a smoother transition, we must question whether this justifies the extended uncertainty. How much longer will it take before the Act is fully implemented, and what are the consequences for time-sensitive procurements? Legal experts such as DLA Piper have warned of potential confusion as contracting authorities try to navigate both the old and new systems. Are we setting these authorities up to fail by forcing them to choose between abandoning projects or managing an overwhelming amount of new bureaucracy?

I would also be grateful for clarification on the status of ARIA, the Advanced Research and Invention Agency, which is one of the great innovations in the British state of recent decades. One of the central features of ARIA is that it is not subject to public procurement rules, as of course it cannot be if it is to serve the mandate that Parliament has set for it. Can the Minister give assurances that ARIA will not be subject to the requirements of the Procurement Act, nor the 2015 regulations?

While we agree with the Government’s supposed intentions to improve public procurement, we remain sceptical and have yet to see evidence of them. I urge the Government to think carefully about their approach to the national procurement policy statement and align with the Procurement Act’s original vision. We need a procurement system that is efficient, transparent and accessible to all businesses, especially SMEs, the true drivers of innovation and growth. We cannot afford to squander this opportunity for meaningful reform; the economy and public sector deserve better.

[Baroness Twycross (Lab)]

I am very grateful to all noble Lords who have spoken in this debate. As I outlined at the start, this legislation will support the commencement of the new Procurement Act 2023, which embodies our ambition to open up public procurement to a more diverse supply base, making it easier for new entrants such as small businesses and social enterprises to compete and win public contracts, including measures to improve prompt payment and transparency of opportunities on a single platform, and enable basic supplier details to be submitted once only.

I am less surprised by the comments made by the noble Lord, Lord Wallace of Saltaire, than by those of the Opposition Front Bench. I have asked repeatedly in briefings about whether this instrument would differ from that of the previous Government, had they introduced it, and have been told that it would not. I am slightly surprised, but I appreciate that we now have a different Government and I very proud to be introducing this on their behalf.

I will go through a number of points to make sure that I respond to the questions raised. The key point that came up from both the noble Lord, Lord Wallace of Saltaire, and the noble Baroness, Lady Finn, was on the timing of the updated NPPS. We will be publishing this shortly and it will be in time for the commencement of the Procurement Act. It is perfectly reasonable and right to ensure that the NPPS reflects the Government’s approach and the mission, so I cannot accept that we should have just gone ahead with the previous one.

The noble Lord, Lord Wallace, made a point about the time that businesses may have to adapt between the publication of the policy statement and the commencement of the Act. As I said, the Government are going to publish this statement in time for the commencement of the Procurement Act on 24 February this year. We have been consulting with stakeholders in developing the statement, and this has included a series of round-table discussions. It is aimed at contracting authorities and should not place burdens on suppliers, and we have trained 16,000 procurement practitioners in the new rules.

The noble Baroness, Lady Finn, raised a point around whether the regulations would be more burdensome. The amendment made by these regulations will ensure that contracting authorities are not incurring an additional burden for having to report against every performance indicator used to manage a contract throughout its life, but only those most material to the performance of the key obligations of the contract at the time the relevant notice is published. This is in line with the original policy intent, as communicated to stakeholders through the passage of the Bill, and the amendment corrects an error in the drafting.

I will now address some of the issues raised by the noble Lord, Lord Robathan. In doing so, I hope that I will persuade him that he does not need to regret in the way that his amendment suggests. In relation to what the transparency measures would do, changes have been made in response to feedback on the Procurement Regulations 2024 about the potential burden of, for example, raising the thresholds for certain transparency requirements, removing the proposed requirement for publication of tenders received, reducing requirements for publication of valuation details and creating exemptions for schools and private utilities. The Government believe that the revised requirements represent a proportionate approach.

On the noble Lord’s points around what the consequential amendments do in practice, the consequential amendments to existing UK legislation are a technical aspect of this instrument. These regulations amend language and references to the previous procurement regime to reference the 2023 Act and the terminology used in it. The consequential amendments will not impact the way procuring entities conduct procurement as intended under the Act or make new policy decisions. Necessary consultation with departments holding ownership of the legislation to be amended has taken place to ensure that existing legislation can function as intended. For legislation that is relied on by devolved authorities, the Government have consulted officials to ensure that it functions as intended.

The noble Lord asked what amendments the regulations make to the Health Care Services (Provider Selection Regime) Regulations 2023. These amendments help to ensure that the provider selection regime’s exclusion requirements align with those set out in the Procurement Act. This will help to ensure consistency across the two regimes and better protect healthcare services procurement from suppliers that pose a risk.

The noble Lords, Lord Robathan and Lord Fuller, asked questions about the vertical and horizontal and affiliated undertakings exemptions relating to Regulations 42A to 42F. The detailed and technical explanation of various calculations ensures that thresholds for these exemptions are effective as a form of anti-abuse mechanism. This will prevent any abuse of the activities threshold that would give the controlled person an unfair advantage over other suppliers by being subsidised by the controlling contracting authority. Contracting authorities will also benefit from clear and consistent rules on how to apply the rules.

The noble Baroness, Lady Finn, asked why ARIA, the Advanced Research and Invention Agency, is an excluded contracted authority. These regulations only repeal an old amendment to the Public Contracts Regulations 2015 and do not affect the status of ARIA. However, ARIA is now an excluded contracting authority under the Procurement Act. This is due to the nature of ARIA’s work. Most of its procurement would not be considered covered procurement. Therefore, the Act made ARIA exempt from the UK’s domestic procurement legislation.

Evaluation in Government Policy-making

Debate between Baroness Finn and Baroness Twycross

Monday 18th November 2024 Lords Chamber

[Baroness Twycross (Lab)]

Absolutely. The fund I spoke of in response to the noble Lord’s initial supplementary will be working in partnership with local authorities, local leaders and mayors across the country. We are very clear that we need to drive out waste and ensure that we get value for money. When we talk about value for money, it is also about better outcomes for the people we serve.

[Baroness Finn (Con)]

In 2019, only 8% of major government spend was evaluated. Thanks to the Evaluation Task Force, it is now 44%. This figure should rise further still by Christmas. However, the outstanding 10DS team—the data science team responsible for this work—has apparently been moved from No. 10 and its responsibilities dispersed. There were also plans to publish a register of all government evaluations online this year. Can the Minister update us on that publication, and give assurances that the excellent work of 10DS will continue?

[Baroness Twycross (Lab)]

I welcome the noble Baroness to her place. I look forward to working with her in her new role. We see the Evaluation Task Force as a key element of our work, and we are planning to launch the evaluation registry in spring 2025 so that the public can get the transparency they deserve.