Windsor Framework (Retail Movement Scheme: Plant Health) (Amendment) Regulations 2026

Baroness Hayman of Ullock Excerpts

Wednesday 2nd September 2026 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Baroness Hayman of Ullock) (Lab)]

My Lords, I start by thanking the noble Lord, Lord Frost, for introducing the Motion, and all noble Lords who have contributed to the debate today.

The purpose of the instrument is to facilitate the continued smooth movement of goods between Great Britain and Northern Ireland by achieving alignment with the European Union on its import controls. It is a small, technical change so that businesses can continue to benefit from the Northern Ireland retail movement scheme’s simplified arrangements.

This instrument does not amend or extend the Windsor Framework in any way, nor does it introduce new policy. Its purpose is simply to update existing biosecurity requirements so that established trading arrangements can continue to operate effectively. It is a minor, pragmatic change that is intended to guard against pests and to protect the biosecurity of the island of Ireland.

Without this legislation, these goods would no longer be eligible to move under the NIRM scheme. As a result, traders moving these goods from Great Britain to Northern Ireland would lose access to the simplified processes, creating unnecessary costs and complexity for businesses.

The Government remain committed to implementing the Windsor Framework because it supports trade, reduces unnecessary barriers and provides certainty for businesses. This instrument makes a modest but important contribution by ensuring that existing arrangements continue to operate effectively.

Speeches may have been short, but a large number of questions have been asked. I have only 10 minutes to respond, so I will do my best to work my way through them and will write to answer any that I do not reach. The noble Lord, Lord Frost, asked about the purpose of the SI. I have just explained why we are doing it: through protecting the biosecurity of the island of Ireland, we are looking to maintain the flow of trade between GB and Northern Ireland. The provisions in the SI introduce additional pest-related import measures targeting a type of fruit fly for tomatoes and peppers from Taiwan and Israel, and a plant pathogen for ginger from rest-of-the-world countries.

We need proof that consignments are free from these pests because, if we do not have it, as I said, people cannot access those markets. We need an additional declaration as part of the phytosanitary certificate that is specific to the pest. Keeping GB aligned with EU import controls will mean that the additional pest control measures will be checked for these goods on entry into GB, which will enable the goods to travel onwards to Northern Ireland using simplified certification.

The noble Lord, Lord Lilley, asked about the impacts of the SI. The impacts to industry are minimal but necessary. Over the course of a three-year period from 2023 to 2025, there were zero imported consignments of tomatoes, peppers and ginger from Taiwan. There were 226 consignments of peppers, one of aubergines and zero of ginger imported from Israel.

The largest impact that this SI introduces will be to ginger imported from rest-of-the-world countries. Over the same three-year period, 3,671 consignments of ginger were imported. The total net direct cost of this SI across the whole of industry is estimated to be £10,000. This one-off cost is mainly based on familiarisation costs to businesses, ensuring they are up-to-date and compliant with the new technical guidance. However, as businesses will need to align with the necessary biosecurity-driven changes implemented by the EU anyway, any additional burdens or costs incurred by traders would not be as a direct result of these regulations.

The noble Baroness, Lady Hoey, asked about labelling. Our priority is to make sure that businesses do not face unnecessary or disproportionate burdens. We expect the need for businesses to label goods “Not for EU” to diminish significantly as a result of the future arrangements under the SPS agreement. The noble Lord, Lord Elliott, made an important point about the impacts on businesses, which is one of the reasons I meet regularly with businesses and their representatives when I go to Northern Ireland, because we need to understand the impacts properly.

The noble Lord, Lord Weir, said that the NIRM scheme does not secure unfettered trade between Great Britain and Northern Ireland. However, the Windsor Framework provides a stable legal foundation to facilitate the Northern Ireland retail movement scheme, allowing everyday goods to move more easily from GB to Northern Ireland. It does so while protecting biosecurity on the island of Ireland, which has been treated as a single epidemiological unit for decades. It also safeguards Northern Ireland’s access to the EU single market.

Pragmatism has been mentioned. I thank my noble friend Lady Chapman for her comments on the need for pragmatism. It is one of the reasons we do what we do.

The noble Lords, Lord Morrow and Lord Roborough, talked about consultation. No public consultation was undertaken on this SI because there was no statutory duty to do so. However, I reassure noble Lords that the Government engaged closely with industry when the NIRM scheme was originally established, including on the list of goods eligible to move under the scheme. This instrument makes limited updates to the existing requirements, so that goods already covered by the scheme can continue to benefit from its simplified arrangements. We will continue to engage closely with traders, to ensure that any future arrangements support smooth trade to Northern Ireland.

The noble Lord, Lord Frost, implied that the UK has ceded biosecurity responsibilities for Northern Ireland to the EU. We retain complete autonomy to make our own regulatory decisions, and we are committed to maintaining robust biosecurity protections across all parts of the UK. We continue to protect against many of the same significant disease and pest risks as our European neighbours. As noble Lords will be aware, and as I have said, the island of Ireland has been treated as an epidemiological unit for decades. We need to look at the practical realities of managing animal and plant health risks. Therefore, the island of Ireland would align on biosecurity matters, regardless of EU regulations or the Windsor Framework.

The upcoming SPS agreement was mentioned by a number of noble Lords; the noble Lord, Lord Redwood, discussed regulatory influence. I recognise these concerns but do not agree that the arrangements would place us in the same position as when we were a member of the EU. As I said, we retain complete autonomy to make our own regulatory decisions. However, I remind the noble Lords that the matter before us today is this technical instrument. While broader discussions on the SPS agreement are important, they are separate from the measures contained specifically in this statutory instrument. This is designed to reduce paperwork and other barriers to trade, and to support farmers, food producers and exporters right across the UK. The Government believe that it is important to deliver those benefits for businesses and consumers and that this is firmly in the UK’s national interest.

My noble friend Lady Ritchie and the noble Baroness, Lady Suttie, asked about the timings of the SPS agreement. I confirm that negotiations are at an advanced stage. Now that we have the new Prime Minister in place, we are looking at a date for the summit.

The Windsor Framework was also mentioned a number of times. The SPS agreement is designed to remove the majority of regulatory barriers for agri-food products and to tackle the wider barriers relating to trade in organic products and key agri-food marketing standards. My noble friend Lady Ritchie referred to the fact that establishing a common SPS area with the EU means that most movements will be made without the need for the majority of certificates or other routine SPS border controls that are currently required for such movements. These same benefits would be extended to movements between Great Britain and Northern Ireland.

The noble Lord, Lord Moynihan, said that the Windsor Framework must go. It is worth reminding ourselves of what it delivers. It is not perfect but, as the noble Lord, Lord Bew, said, we do not have a better way forward. It provides a durable means of protecting the Belfast/Good Friday agreement, avoiding a hard border on the island of Ireland, and maintaining the smooth functioning of trade within the UK. It preserves Northern Ireland’s unique access to both the UK internal market and the EU market for goods. The Government remain fully committed to delivering it.

The noble Lord, Lord Frost, mentioned AI. The substantive provisions of the EU’s AI Act and the Cyber Resilience Act do not apply in Northern Ireland and would apply only following an agreement by the Withdrawal Agreement Joint Committee.

The noble Lord, Lord Empey, asked about the trade and co-operation agreement. As I am sure the noble Lord is aware, at the meeting of the EU-UK Partnership Council on 2 February, the UK and the EU agreed that the review of the implementation had been largely completed via commitments undertaken at the 2025 UK-EU summit on the common understanding. Both sides are continuing to engage with stakeholders, and we will announce the conclusion of the review later this year.

The noble Baroness, Lady Hoey, asked why Northern Ireland is still being treated differently. It is important to look at the biosecurity issues that I have talked about and the importance for trade. I am about to run out of time—I am very sorry—so I will have to wind up now.

This is a pragmatic way we need in order to move forward. We need to ensure Northern Ireland and GB trade can continue in the smoothest way possible. This statutory instrument enables that.

Nature’s Rights Bill [HL]

Baroness Hayman of Ullock Excerpts

2nd reading
Friday 3rd July 2026 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Baroness Hayman of Ullock) (Lab)]

My Lords, I am grateful to all noble Lords who have contributed to today’s debate. The strength of feeling we have heard reflects a deep and widely shared concern for the state of our natural world. It also reflects the seriousness with which this House approaches questions of environmental protection, governance and accountability. I pay tribute to the noble Baroness, Lady Bennett of Manor Castle, for bringing forward the Bill and for her long-standing commitment to the protection and restoration of nature. Whatever our differences on the legislative route, there is no doubt about the sincerity, intellectual rigour and energy that she and those supporting the drafting of the Bill have brought to this issue and these proposals.

As the noble Lord, Lord Frost, mentioned, we have heard some very thoughtful contributions on the philosophical and ethical foundations of recognising nature’s intrinsic worth. We have heard reflections on international examples, on local initiatives and on the growing public desire for stronger action to protect the environment. These are important perspectives, and the Government recognise the legitimacy of the concerns that underpin them. The noble Baroness, Lady Bennett, recognised the Government’s commitment to this when she referenced our manifesto and our environmental commitments specifically.

However, as many noble Lords have also made clear, the question before us is not whether we value nature, nor whether we must act urgently to protect and restore it. The question is whether the mechanism proposed in this Bill—recognising nature as a legal subject with enforceable rights—is the correct approach within the UK’s constitutional and legal framework. The Government’s position is that it is not.

We already have in place a comprehensive, outcomes-focused and legally binding framework for environmental protection through the Environment Act 2021 and the Environmental Improvement Plan 2025. I assure the noble Baroness, Lady Coffey, that this Government are not rowing back on any of our commitments. These provide long-term statutory targets, strengthened duties on public authorities and independent oversight through the Office for Environmental Protection. Importantly, they require government to act, report and be held to account. Taken together, these measures will help us to restore nature, improve environmental quality, create a circular economy, protect environmental security and improve people’s access to nature.

The Environmental Improvement Plan 2025 ensures that nature’s recovery is a key priority, fundamental to the Government’s approach to economic growth. This Government are committed to delivering for nature, taking action to meet our Environment Act targets and to restore and protect our natural world. This is not a system that lacks ambition or enforceability; it is one of the most robust environmental governance frameworks in the world, which sets out our goals and targets, how we will achieve them and who is responsible for delivery, and it is designed to integrate environmental considerations across government, regulators and local authorities.

Achieving our environmental ambitions requires collective action from individuals, communities and organisations across all sectors, as referenced to by the noble Baroness, Lady Helic. We have sought views and advice from civil society, business, landowners and managers, and local government in developing the Environmental Improvement Plan 2025, and we will work in partnership to achieve its goals and targets. We are also already strengthening nature recovery across government land by publishing a first-of-its-kind Government Estate Nature Plan, which improves co-ordination, evidence and delivery within our existing legal framework. This demonstrates that we can work together to accelerate nature recovery without creating new legal rights or legal personality for nature.

Introducing a parallel and overlapping rights-based system, as the Bill proposes, would create significant risks. It could duplicate or conflict with existing statutory duties. It could generate uncertainty for regulators, land managers, businesses and communities, and it could divert resources away from delivery and into litigation, procedural complexity and institutional restructuring.

The noble Baroness, Lady Smith, talked in particular about the impact on Wales and the challenges facing Wales. It is important to stress to noble Lords that the Bill has UK-wide ambition, but still preserves the devolved competence, which enables devolved Governments to make decisions around implementation.

We have also heard today about the serious legal and constitutional implications of recognising nature as a legal entity. Such a step, through the Bill’s proposed integrated rights framework, would require a fundamental reworking of long=established principles of administrative, property and planning law. It would introduce new enforcement bodies, including a nature guardianship council and nature rights tribunal, without clarity on how these would interact with existing regulators and courts. It could lead to a proliferation of claims brought on behalf of ecosystems or species. It is important to consider the whole system in the round, as demonstrated through our recently published land use framework, including considering wider, democratically determined priorities such as housing, infrastructure and economic development, and to utilise existing tools to assess their impacts on nature.

International examples of nature being recognised as a legal subject were cited in her introduction by the noble Baroness, Lady Bennett, and they are important to consider. As the noble Baroness, Lady Smith, said, we need to be aware of alternative approaches. However, evidence and outcomes are mixed, and the interaction with relevant domestic legal systems and frameworks is complex. While I acknowledge that “rights of nature” is a concept that is legally recognised in some countries, the UK’s consistent position in international negotiations, alongside many other countries, has been to focus on environmental outcomes, such as halting biodiversity loss, restoring ecosystems and reducing pollution, rather than debating legal constructs whose practical implications remain uncertain.

The noble Baroness, Lady Miller, spent some time talking about the fact that there has been a marked rise in international and domestic litigation drawing on existing human rights, such as the right to life and the right to private and family life, and linking these to adverse environmental conditions. The Council of Europe has been particularly active on the issue in recent years and has been scoping a possible new instrument on this right, which could create a new right to a clean, healthy and sustainable environment, alongside other human rights protected under the European Convention on Human Rights. So, I would like to clarify that the UK is open in principle to exploring a new instrument to enshrine the right. However, there is not yet consensus among member states on the type of instrument—whether it should be binding, for example—or the content, nature and scope of the right.

None of what we have just discussed diminishes the urgency of the challenge. The Government are clear-eyed about the pressures on nature. It underpins our security, prosperity and resilience, and understanding the threats we face from biodiversity loss is crucial to meeting them head-on. We are acting through the environmental improvement plan to restore habitats, improve water and air quality, strengthen resilience and invest significantly in nature recovery. This is a statutory, science-based and accountable framework, and it is the right one for our legal system.

Before closing, I pay tribute to the noble Baroness, Lady Helic, for her energy and determination on the need to bring in a close season for brown hares. I am sure we will hear from her again on this issue.

Finally, I thank the noble Baroness, Lady Bennett, for bringing the Bill forward and for stimulating an important and thoughtful debate. But, as the noble Lord, Lord Frost, said, legislation must be workable, coherent and compatible with the UK’s legal framework. For these reasons, while we share the ambition that motivates the Bill, the Government cannot support it. We will continue to focus on delivering the environmental improvement plan. We want to meet our legally binding targets, so that we can ensure that nature in this country is protected, restored and valued for generations to come. I commend the House for the quality of today’s debate.

Windsor Framework (Retail Movement Scheme: Plant and Animal Health) (Amendment etc.) Regulations 2024

Baroness Hayman of Ullock Excerpts

Wednesday 23rd October 2024 Lords Chamber

[Lord Roborough (Con)]

My Lords, I declare my farming and land management interests as set out in the register. I thank the noble Baroness, Lady Hoey, for introducing this Motion and for raising the key issues for people living in Northern Ireland. I also thank all noble Lords who have contributed to the debate with such passion and energy and who have candidly shared their deep frustrations.

From the outset, I would like to confirm my personal commitment and that of my noble friends on this side of the House: we are all dedicated unionists. We also remain strongly supportive of the importance of implementing the Windsor Framework agreement, securing the application of British standards for goods which move to and stay in Northern Ireland, and ensuring that the same goods are available for consumers in all parts of the UK. It upholds Northern Ireland’s access to the rest of the UK internal market and safeguards Northern Ireland’s privileged access to the EU single market, which has been a clear demand from businesses in order to protect livelihoods.

Following the question asked by the noble Baroness, Lady Hoey, earlier in this debate, I too hope that the Minister can restate the Government’s manifesto commitment:

“Labour is committed to implementing the Windsor Framework in good faith and protecting the UK internal market”.


I also ask the Minister to confirm that this instrument is consistent with the Safeguarding the Union Command Paper, published in January 2024. In line with the concerns raised by the Secondary Legislation Scrutiny Committee, and that we have heard today from my noble friend Lady Lawlor and the noble Baroness, Lady Ritchie of Downpatrick, I would also like to press the Minister to explain to the House the extent of the consultation undertaken. What is the nature of the parties that have been consulted? How many have been consulted and on what questions? Is it possible to publish the anonymised consultee responses? Has the policy been adjusted or impacted by any of that consultation to arrive at the position we see it in today? If so, whose responses carried the most weight?

In addition, how would the Minister respond to concerns expressed by many noble Lords that this instrument appears to be intent on aligning with EU law and thus has constitutional significance? As is the custom in this House, we on these Benches will not be supporting the fatal Motion on an instrument such as this, but I hope the Minister will listen carefully to noble Lords’ concerns.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Baroness Hayman of Ullock) (Lab)]

My Lords, I start by thanking the noble Baroness, Lady Hoey, for introducing this Motion and allowing us to have such a detailed debate on this issue. I also thank all noble Lords who have contributed to the debate, some with a great deal of passion and energy. I know this is a subject close to many noble Lords’ hearts.

I draw noble Lords’ attention back to the very positive impact that this legislation will have on the union of the UK and on businesses and citizens right across our country. This statutory instrument will enable a broader group of goods originating from the rest of the world to move via the Northern Ireland retail movement scheme from GB to Northern Ireland. This enhances the existing measures in the Windsor Framework, which have already significantly reduced the requirements associated with the original Northern Ireland protocol. The list of eligible goods, which already includes products such as tomatoes, cauliflowers and New Zealand lamb, was designed in collaboration with industry stakeholders across the UK. Recently, I had a constructive and helpful discussion on the Windsor Framework with the Northern Ireland Business Brexit Working Group when I went to Belfast in August.

The Government will keep under review the movement of products from the rest of the world. We need to ensure that we can reflect and respond to industry feedback. My officials meet with businesses on a regular basis to discuss these matters and to support them in implementing the Windsor Framework, which I confirm to the noble Lord we are committed to delivering. This legislation delivers on a key commitment of the Safeguarding the Union Command Paper, which was published earlier this year and which the noble Lord also inquired about. As colleagues know, that provided the basis for the return of the Northern Ireland Executive.

In addition to expanding eligibility for goods from the rest of the world to use the Northern Ireland retail movement scheme, the Government are committed to supporting businesses in moving agri-food goods into Northern Ireland. To that end, since 30 September, the new tariff rate quota solution enables traders to take advantage of UK tariff quotas of over 13,000 tonnes of lamb, beef and poultry every year. As set out in our manifesto, this Government have been clear in their objective to secure improved arrangements for agri-food trade with the EU via a veterinary or SPS agreement. We are clear that we want to continue to simplify this process, as far as possible, to support the UK’s thriving agri-food trade.

Procurement Bill [HL]

Baroness Hayman of Ullock Excerpts

Consideration of Commons amendments
Wednesday 25th October 2023 Lords Chamber

[Baroness Hayman of Ullock (Lab)]

My Lords, I start by thanking my noble friend Lord Hunt of Kings Heath for continuing to press the issue of the terrible practice of organ harvesting and to raise awareness of it. I do not think that there was sufficient awareness of what was happening in China until my noble friend tabled his amendments, and I hope that he continues to work on this in the future. So we are also very disappointed that the Government chose not to accept his amendment, but we are where we are.

As the noble Lord, Lord Fox, said, ethical procurement has to be right at the centre of how we continue to do business. Hikvision was debated during the progress of the Bill and there is more work to do on some of these issues.

Having said that, I thank very much the Minister and her team for her comments today and for her constructive approach to improving the Bill, following a fairly sticky start in Committee. It has been a pleasure to work with a Minister, department and noble Lords across the House who genuinely wanted to make a better Bill. I know that there were an enormous number of government amendments—perhaps the Bill should have been better drafted in the first place—but they were very important. We are in a much better place than where we started, so I thank the Minister and all noble Lords who helped to bring us here.

[Baroness Neville-Rolfe (Con)]

My Lords, I express my gratitude to the noble Lords, Lord Hunt and Lord Fox, and the noble Baroness, Lady Hayman, for their insightful contributions in this brief debate—not least on the threat from China and on ethical procurement. It has been a pleasure to work with them all and to set the slightly troublesome record of tabling a very large amendments in this House.

I of course acknowledge the importance of tackling the abhorrent practice of organ harvesting, but this amendment is duplicative, unduly burdensome and not appropriately suited to its intended purpose, which is why the Bill has been returned to our House in this form. For these reasons, I do not think that the amendment is necessary and I reiterate the many commitments we have made in this House and in the other place.

The noble Lord, Lord Fox, mentioned the NHS. The Bill applies to NHS bodies and their procurement of goods and services, which are not classed as healthcare services under the provider selection regime. I am pleased to tell the noble Lord, as I hope he knows, that the underpinning regulations were laid by the Department of Health and Social Care on 19 October, which puts a line under that and ensures a consistent approach.

The noble Lord, Lord Fox, remarked on the definition of sensitive sites. Both our Written Ministerial Statement from November last year, which was trailblazing to some extent, and the definition of sensitive sites that I set out only last month make our position on the issue clear to all concerned. We will be sharing annual reports on the removal of surveillance equipment, as I promised the House when we last debated this on 11 September.

Procurement Bill [HL]

Baroness Hayman of Ullock Excerpts

Consideration of Commons amendments
Monday 11th September 2023 Lords Chamber

[Baroness Hayman of Ullock (Lab)]

My Lords, Amendment 4A in this group is in my name. My amendment in lieu would insert a number of priorities and principles into the Bill. I will be fairly brief because we discussed these issues at length both in Committee and on Report but we felt that they were important enough—and were considered important enough by noble Lords during those debates—to bring the amendment back once again.

My amendment asks that due regard be given to a number of priorities and principles. The first is “maximising public benefit”. Public benefit is mentioned in the Bill but we feel that it is too vague, which is why we want to pin it down more within another amendment. Maximising public benefit would include

“the achievement of social value, through the securing of environmental objectives”;

many noble Lords were concerned at the lack of environmental objectives in the Bill. It would also include

“promoting innovation amongst potential suppliers”.

We also think that it is important to have

“value for money, by having regard to the optimal whole-life blend of economy, efficiency and effectiveness that achieves the intended outcome of the business case”.

In our previous debates, the Minister spoke strongly about the importance of value for money, so I hope that she understands why the second part of our amendment is clearly important and would strengthen the Bill.

The next part of my amendment deals with transparency. We think that it is important that we act

“openly to underpin accountability for public money”,

tackle corruption and ensure that all procurement is fully effective in achieving this. We also think that good management should be in place in order to have proper integrity, prevent misconduct and exercise

“control in order to prevent fraud and corruption”.

Importantly, we have added in “fair treatment of suppliers”. I thank the Minister for her work on improving the Bill for small and medium-sized enterprises, but we feel that more could be done to ensure that

“decision-making is impartial and without conflict of interest”.

The final part of my amendment concerns non-discrimination—that is,

“ensuring that decision-making is not discriminatory”.

The reason why we have had such a debate about this matter is that the principles were originally in the Government’s Green Paper and were consulted on. Our concern is that those principles were then left out of the Bill even though the objectives were included. So, my amendment would bring those principles back into the Bill.

We believe that social and public value are important requirements for any contracting authority to consider in order, for example, to encourage anyone contracting to work with local suppliers; to encourage contractors to reduce their CO₂ emissions; to encourage the hiring of more apprentices; and to encourage greater diversity. We believe that, if the Government are to deliver their ambitions of levelling up and net zero, it will be important to include these principles in the Bill. We know that social value is included in the national procurement policy statement—the Minister made much of the NPPS in our previous debates—but it is not referred to in the Bill. We also know that public benefit is mentioned in the Bill, but it is not clear to us how social value would sit within that framework. How will it all come together to ensure that it works for the public benefit? We know that the NPPS will include the Government’s strategic priorities but, again, we do not know clearly what those are. Further, the Bill does not mention innovation, which is why it is an important part of my amendment. As the noble Lord, Lord Lansley, said when we previously debated the Bill:

“When our current Prime Minister was Chancellor of the Exchequer, he put innovation at the forefront of his economic approach to improving productivity”.—[Official Report, 28/11/22; col. 1619.]


So why not include it in this Procurement Bill?

As the Minister said in her previous response to similar amendments, innovation and competition have an important part to play here. Procurement should be an enabler of innovation. It is important that there is clarity around these principles and objectives. How will innovation be part of it, for example? The Bill will shortly become legislation. We must revisit these concerns and we want to persuade the Minister to consider very carefully what we have been saying and why we are saying it. From her responses, we do not believe that at previous stages there was adequate explanation of how all this would operate. Good sentiment from the Government and the Minister, and promises around an NPPS we have not seen, are not sufficient to ensure that we have the best procurement legislation possible, which we all want to see. Our amendments would help achieve that end.

Sadly, the Minister has again disappointed me with her introduction on these issues, although I thank her for all the work she has done as we have progressed so far. It is my intention to move my amendment.

[Lord Lansley (Con)]

My Lords, I will contribute on Amendments 4A and 4B in particular. As noble Lords will recall, the structure of Amendment 4A, as an amendment in lieu of the Commons Amendment 4, incorporates to an extent some of the issues raised in the strategic priorities that your Lordships sent to the Commons to be included in the national procurement policy statement. I will explain how that works in a minute.

Like other noble Lords, I am grateful for the time and effort that my noble friend the Minister has given to listening to what we had to say. On Commons Amendment 5—which would get rid of the reference to “strategic priorities”—I was focused on innovation, as she knows. Innovation is essential to the quality and effectiveness of procurement. Also, public procurement is a substantial part of this country’s economic activity. If it promotes innovation, it can make a significant difference to our overall economic performance and to reconciling our productivity problems. The fact that, in the absence of Amendment 4, the Bill would make no reference to innovation is such an omission that, on those grounds alone, Amendment 4A should be added back to the Bill.

When we tabled our amendment, the noble Earl, Lord Devon, the noble Baroness, Lady Worthington, and I tried to ensure that the national procurement policy statement was clear about what we regarded as enduring strategic priorities. We have backed off from that. My noble friend and the Minister in the other place were clearly told that we must have maximum flexibility. I still do not understand why the Russian invasion of Ukraine might mean that public procurement in the United Kingdom should not have regard to social value; none the less, leaving that to one side for a moment, I accept that there is an ideological commitment in government to the idea that everything that government does must be so flexible that you cannot even predict some of the basic principles within it.

We have dropped the strategic priorities; we have made them principles. As the noble Baroness, Lady Hayman, rightly has it, we have moved from “must include” to “have regard to”. Therefore, Ministers are not constrained to include in the statement innovation, the achievement of social value, the achievement of environmental objectives or, for that matter, transparency, integrity, fair treatment, non-discrimination and value for money. However, the idea that any of these things would be left out of a national procurement policy statement is wholly unacceptable.

I come back to the essential question: what are we trying to do? We are trying to set the framework for contracting authorities to undertake public procurement. From our point of view, the statement should include whatever the Government think it should include but it should not exclude such basic central principles of public procurement. We have only to ask ourselves what conclusion we would draw if the Government were to send a draft of an NPPS to Parliament which left these things out. In my view, we would have to reject it. What is the benefit of that? Better to put it in the Bill now, make it clear to Ministers and, frankly, officials, that it should be in the statement so that, when the draft of the NPPS comes, we can tick the box, send it forward and approve it.

The noble Earl, Lord Devon, will add matters on social value. I just say that we may have left the EU public procurement regime but, when you look at the centrality of social value to public procurement in other jurisdictions across Europe, the idea that you would not seek social value through public procurement seems wholly unacceptable.

I was quite struck by the paucity of argument presented in Committee in the other place when our amendment to the Bill was deleted. In addition to:

“It needs to be as flexible as possible”,—[Official Report, Commons, 31/1/23; col. 54.]


which was predictable, what irritated me especially, as my noble friend on the Front Bench is now aware, was that references to integrity, transparency and value for money are already in the Bill, in Clause 12. The Committee in the other place clearly paid no attention to the Bill in front of it, since Clause 12 relates to covered procurement. As we noticed in our debates in Committee, the national procurement policy statement is not confined to covered procurement. It extends to all procurement by government, though not including the NHS, which for these purposes seems to be excluded from “public authorities”, which is a curious definition in itself.

We knew that the NPPS was wider. The Committee at the other end seemed somehow to imagine that covered procurement was enough, but it excludes everything under about £112,000 in value. Therefore, many small procurements would not be affected by it. It simply is not acceptable. We need to go back and ask the Commons to think again about the exclusion of such central principles from the national procurement policy statement. It has been a long time coming back. We are nine months on from the point at which we sent the Bill to the Commons. We took some time getting it to the point that we did. Noble Lords will recall that on the first day in Committee we received 50 government amendments, this clever idea of covered procurement arising only at that point and not in the original draft of the Bill.

To make a final, acerbic comment, I find it somewhat astonishing that during the passage of the Bill the Government have been able to make many hundreds of amendments that they chose to make. At this stage, we are asking for only a small handful that the Lords want to make. The Government at this point might just bend and accept those amendments.

--- Later in debate ---

Moved by

[Baroness Hayman of Ullock]

At end insert “and do propose Amendment 4B instead of the words so left out of the Bill—

4B: Clause 13, page 10, line 8, at end insert—
“(b) have regard to the following priorities and principles—
(i) maximising public benefit, including by the achievement of social value, through the securing of environmental objectives and from economic benefits, including by promoting innovation amongst potential suppliers,
(ii) value for money, by having regard to the optimal whole-life blend of economy, efficiency and effectiveness that achieves the intended outcome of the business case,
(iii) transparency, by acting openly to underpin accountability for public money, anti-corruption and the effectiveness of procurements,
(iv) integrity, by providing good management, preventing misconduct, and exercising control in order to prevent fraud and corruption,
(v) fair treatment of suppliers, by ensuring that decision-making is impartial and without conflict of interest, and
(vi) non-discrimination, by ensuring that decision-making is not discriminatory,””

--- Later in debate ---

[Lord Fox (LD)]

Eagle—thank goodness. I thought it was an evil eye. I was going to describe it as beady. I thought his “evil eye” was going to be upon the Minister and I was a little concerned for her safety. It is getting late.

Moving on, as my noble friend set out, we will support the amendment from the noble Lord, Lord Hunt. There can be no place in the UK supply chain for businesses that engage in this behaviour, and we have to be absolutely sure that there is no place, which is why the noble Lord is right to want to explicitly write this in. I regret that the fact that my noble friend Lady Brinton’s amendment was not accepted means that if the noble Lord is successful, his amendment will not apply to the National Health Service, which seems rather unfortunate as it would probably be the prime customer. None the less, getting it in writing and putting it in there is very important and will be enthusiastically supported.

[Baroness Hayman of Ullock (Lab)]

My Lords, I will be very brief. I thank both noble Lords for such excellent speeches on really important issues and important amendments that have been brought back for further discussion. The noble Lord, Lord Alton of Liverpool, again and again draws our attention to where we need to act on wrongs in this world. Clearly, we must do all we can to tackle modern slavery, genocide and crimes against humanity. He is right to draw our attention to the serious examples he gave us in his speech of where this is happening. We believe that procurement policy can and should contribute to that end where it can. I say to the Minister that the Government have listened to much of what the noble Lord has said; we have moved forward to some extent on this.

My noble friend Lord Hunt’s amendment clearly spells out why we need to be doing something about this. Reading his amendment, what struck me was the definition. I will read it, because I think it is at the crux of this:

“‘Forced organ harvesting’ means killing a person without their consent so that their organs may be removed and transplanted into another person”.


I cannot think of many things more appalling than that, so we fully support my noble friend. He deserves the thanks of the House for bringing this forward. He has our full support, but I wish the Government would consider amending the Bill in this way.

[Baroness Neville-Rolfe (Con)]

My Lords, I agree with the noble Baroness on the excellence of the two speeches we have had during this important debate. I thank the noble Lord, Lord Alton, again for his contribution. I am delighted that we have been able to agree on this matter so that the changes we have agreed can be moved forward. I thought his speech, ranging from what the Co-op and Tesco are doing, through the Cambridge spies, the absolute horror of what is being imposed on the Uighurs, and all the other things he said that I will not repeat, bears reading and reflecting on.

On the use of surveillance equipment—to respond to one point the noble Lord made—in the wider public sector, I should add that if the Government consider the risk to be intolerable, they are able to take action. That does not have to be enshrined in primary legislation. On the point about parliamentary scrutiny, the Government carefully consider and respond to all Select Committee recommendations. The annual written report on surveillance cameras, once laid in Parliament, will be available to all committees. I am sure it will receive appropriate scrutiny and a great deal of interest.

Turning to the remarks made by the noble Lord, Lord Hunt, and the noble Baronesses, Lady Northover and Lady Hayman, we all agree that organ harvesting is a horrific practice. However, given that we already have provisions in this Bill relating to professional misconduct—which will cover organ harvesting—it would seem inappropriate and odd to single out this particular, albeit horrific, practice in this Bill, and not others, especially given that the risk of this practice occurring in public contracts is low. While the issue is of key importance, the amendment itself largely duplicates the Government’s existing efforts. I cannot agree with the criticism of this given all we have done to try to improve this Bill and make the arrangements better. As I have said, there is a reference to organ harvesting in the NHS legislation. To pick up on the various security areas we have now in the Cabinet Office, they will work closely together. That is how you defeat the enemy on these things.

The Deputy Prime Minister has spoken in the other place on these issues today, and the Leader of the House will be repeating the Statement shortly when we finish this business. Obviously, that is some context. This Government have already taken steps to act on the risk from foreign influence and demonstrated that they are willing to act when the risk is intolerable. Our action on the risk of using certain surveillance equipment on government-sensitive sites was necessary and proportionate. This Bill will help us further, as the national security debarment provisions will enable us to act in public procurements where we see malign influence. This is a major change that has been made to this Bill. It is very encouraging that this House has influenced it and then welcomed it on its return from the other place. This is how good legislation is made, I hope.

It is crucial that we bring this most important Bill to Royal Assent as quickly as possible. I hope noble Lords will back us today, and I hope that in view of what I have said, the noble Lord will consider withdrawing his amendment. In any event, we need to move forward and get this Bill on the statute book.

Retained EU Law (Revocation and Reform) Bill

Baroness Hayman of Ullock Excerpts

Report stage
Monday 15th May 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, having attached my name to Amendment 47 in the name of the noble Earl, Lord Caithness, and the noble Baroness, Lady Willis, I shall make just a couple of points on that. I stress Amendment 48, to which the Green group would have attached our names had there been space, and the point made by the noble Lord, Lord Krebs, that this is writing into the Bill what the Government tell us again and again, as they have for years, they want to achieve. It is simply delivering the Government’s expressed desire.

I want to make just three points on Amendment 47. There is some important terminology, with which I suspect the noble Baroness, Lady Willis, may have had something to do. That refers to the methodological quality of the evidence. There is increasing awareness in the scientific community of the need to look at the problem of publication bias: the probability that a scientific study is published is not independent of its results. That is just one way in which we have real problems with the methodology of what has been published and the Government have considered in the past, to which the amendment is to some degree addressed.

Proposed new subsection (5) mentions

“a sufficiently wide view of the ecological impacts”.

I will take a case study of this. Scientists are increasingly concerned about the combined cocktail impact of pesticides, plastics and pharmaceuticals together in the environment. I point the Minister to a European report by the CHEM Trust, Chemical Cocktails: The Neglected Threat of Toxic Mixtures and How to Fix It and, independently occurring, a launch this month in the UK of a report from the Wildlife and Countryside Link with the Rivers Trust and UK Youth for Nature, Chemical Cocktails: How Can We Reduce the Toxic Burden on Our Rivers? The scientific view taking that overall wide ecological view is increasingly being recognised as crucial, and massively understudied.

The final point I want to make is that Amendment 47 is reflective of something that I am increasingly finding: groups of scientists—including established scientists whom you might expect that have a very good route into the Government—are coming to me and saying, “Please advise us on how we can get through to the Government to make sure that our scientific advice and discoveries are acted on”. There is real feeling in the scientific community that there has been a breakdown in communication and consideration from the Government in terms of the current science. This amendment seeks to address those issues.

[Baroness Hayman of Ullock (Lab)]

My Lords, I shall be very brief. I just want to give particular support to Amendment 48, to which I have added my name. We cannot allow the Bill to weaken environmental and food safety standards. We know that Defra has by far the largest share of affected regulations of any department, so the Bill really will have significant implications for environment and food safety law-making unless it is done well.

I will not repeat the reasons why we need these amendments, but what has come across very clearly is the fact that there is widespread and strong support for the environmental non-regression principle.

Importantly, Amendment 48 would give transparency but also legal substance to the warm words of the Minister, as the noble Lord, Lord Krebs, mentioned. On day 2 of Committee, the Minister said that the Government are committed to maintaining high environmental standards and that he wanted

“to see … standards improve in future”.—[Official Report, 28/2/23; col. 208.]

I absolutely believe that is the case but, as a matter of law, the Bill provides no assurances or protections and cannot bind the hands of future Ministers. It is absolutely critical that these assurances and protections are in place in the Bill because, without a non-regression principle in law, they simply are not there.

On that basis, if the noble Earl, Lord Caithness, wishes to test the opinion of the House, he will have our support.

[The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)]

My Lords, I am grateful for a really interesting debate. Before I begin to address the amendments in this grouping, I say that I know that there was some discussion earlier today regarding Defra’s plans for water quality, particularly the Bathing Water Regulations and the water framework directive. I take this opportunity to reassure noble Lords that neither of these pieces of REUL is on the schedule to this Bill and Defra has no intention of repealing either of these pieces of important legislation. The noble Baroness, Lady Bakewell of Hardington Mandeville, raised this issue, and I absolutely give them that assurance.

Under this Government, we have only strengthened our legislation on water quality. In April, we published our new integrated plan for water, which marks a step change in how we manage our waters. It looks at both water quality and water resources together. We completely understand people’s concerns about our rivers, lakes and seas and the pressures that they face. This plan is our response. In the plan, we set out how we will streamline our water policy and legal framework; this includes the water framework directive 2017. We consider that there are opportunities to improve the regulatory system through reviewing the implementation of the water environment regulations 2017 in order to improve water outcomes on the ground while retaining our goal to restore 75% of water bodies to good ecological status.

I turn to Amendment 47, moved by my noble friend Lord Caithness. This amendment would introduce specific statutory requirements on Ministers when deciding what updates may be appropriate under the power to update in Clause 17 in the light of scientific developments. The amendment would also require that, where Ministers intend to exercise the power on legislation relating to environmental law, the review of scientific evidence must consider whether the evidence accounts for the ecological impacts. I say this to my noble friend: the power has purposely been drafted in this way both to allow for broad technical updates and to ensure that it captures the wide range of REUL across a variety of policy areas. We cannot predict the nature of scientific developments or technological changes to which REUL may be subject, nor the changes that might be appropriate in those instances in future.

I totally agree with my noble friend’s point about outliers. As he said, we had this debate during the passage of the Genetic Technology (Precision Breeding) Bill. I constantly challenge the scientific advice that I receive in Defra to make sure that we are not creating the opposite of diversity or a sort of monogamous view of scientific progress. Outliers are the best challenge to that occasional tendency to be too absorbed in one particular group of views. This has been very eloquently described by notable international conservationists such as Allan Savory. That ability to have only research that is peer-reviewed sometimes requires those commissioning science to look more broadly. That is what we try to do, and I assure my noble friend that his points are well received. However, I gently suggest that placing statutory requirements on Ministers in the use of this power, including the requirement for scientific updates to be based on the latest evidence, is simply not necessary.

First, public bodies are already under public law duties to act reasonably and to consider relevant factors in decision-making. Secondly, Ministers will need to be reasonable and consider the relevant scientific evidence when evaluating whether updates, and what updates, may be appropriate. Provided a Minister acts reasonably and considers the relevant factors, it is ultimately for them to decide what is considered an appropriate amendment in light of a change in technology or development in scientific understanding.

The UK is a world leader in environmental protection and, in reviewing our REUL, we want to ensure that environmental law is fit for purpose and able to drive improved environmental outcomes. Furthermore, this Government have been clear throughout the passage of the Bill that we will uphold our environmental protections. We remain committed to our ambitious plans set out in the net zero strategy, the Environment Act and the Environmental Improvement Plan 2023, which sets out the comprehensive action we will take to reverse the tragic decline in species abundance, achieve our net-zero goals and deliver cleaner air and water. The provisions in the Bill will not alter that. I therefore suggest that the requirements of this amendment are not necessary.

The proposed new clauses in Amendments 48 and 49, tabled by the noble Lords, Lord Krebs and Lord Whitty, respectively, establish a number of conditions relating to environmental protections and food standards that Ministers must meet when intending to use the powers under Clauses 13, 14, 16 and 17. They include satisfying a range of conditions in the amendments so that environmental and consumer protections relating to food safety and labelling will be maintained and that the proposed new regulations do not conflict with a specific list of existing international environmental agreements. They also introduce a new procedural requirement which Ministers must meet to be eligible to exercise the powers. This includes seeking advice from relevant stakeholders and publishing a report addressing specific points concerning environmental and consumer protections for the new regulations.

Amendment 48 seeks to insert a new subsection into Section 4 of the Food Standards Act 1999, introducing a requirement for the Food Standards Agency to include in its annual report an assessment of the impact of the delegated powers on areas of concern to consumers relating to food, under that section of that Act. These new and broad-ranging provisions would have a severe impact on the Government’s ability to use the Bill to legislate and deliver on our environmental and food goals, due to the resource-intensive nature of the conditions proposed.

Moreover, the list of relevant international obligations set out in the amendment is far from comprehensive and would become rapidly outdated in the context of ever-evolving international legislation. The delegated powers in the Bill are not intended to undermine the UK’s already high food standards, nor will they impact the UK’s status as a world leader in environmental protection. Indeed, this Government are committed to promoting robust food standards nationally and internationally, so we can continue to protect consumer interests, facilitate international trade—a very good point made by the noble Lord, Lord Whitty—and ensure that consumers can have confidence in the food they buy. The UK has world-leading standards of food safety and quality, backed by a rigorous and effective legislative framework.

Under the Food Standards Act 1999, the FSA already has as its core statutory function the objective of protecting public health from risks that may arise in connection with the consumption of food, including risks caused by the way it is produced or supplied, and protecting the interests of consumers in relation to food. The Bill and the powers in it do not change that. Accordingly, the FSA would already have to consider the effect on public health of any legislation that it would ask the relevant Minister in its sponsor department, the Department of Health and Social Care, to make in relation to food before that legislation would have effect. Alongside this, Defra maintains a well-established set of relationships with the agrifood sector, broadly aimed at upholding the sustainability, productivity and resilience of the sector. This includes representation, from farm to fork, of around 150 major food and drink companies and trade associations, as well as a range of industry CEOs and senior figures, to discuss strategic opportunities and challenges facing the agrifood chain.

We also want to ensure that, in reviewing our REUL, environment legislation is fit for purpose and able to drive our positive environmental outcomes. I take the point very eloquently made by the noble Baroness, Lady Hayman, but this is much more than warm words: we have written into law our environmental protections, our ambitions for reversing the decline of species and, in very strict food legislation, on the health of food.

The REUL that we are revoking as part of the schedule to the Bill is obsolete, expired, duplicated or no longer relevant to the UK. It is not required to uphold environmental protection. For example, around half of fisheries REUL can be removed as it is no longer relevant, has expired or relates to areas we do not fish in. For example, I am sure all noble Lords will agree that REUL setting fishing opportunities for anchovy in the Bay of Biscay for the 2011-12 fishing season, which has now expired and is no longer applicable in the UK, is pointless to have on our statute book. Therefore, the proposed conditions on food standards and environmental protections are simply unnecessary. The reforms these powers will enable are vital to allow the UK to drive genuine reform and seize the opportunities our new status allows.

I enjoyed being on the same side as the noble Lord, Lord Krebs, on previous legislation. I hope that my attempt at honeyed words might have got him onside, but we will have to see how that goes. There are two reasons, by and large, why Governments resist these kinds of amendments: first, they are not necessary—there is already law to provide for the measures the amendments seek—and secondly, they are too burdensome. For these two amendments, I submit, both those factors come into effect: they are not necessary and they are too burdensome, so I ask that they not be pressed.

Parliamentary Democracy in the United Kingdom

Baroness Hayman of Ullock Excerpts

Tuesday 25th April 2023 Lords Chamber

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the noble Baroness, Lady Jones, for bringing forward this brief but fascinating debate, and congratulate the right reverend Prelate the Bishop of Lichfield on his excellent speech. I offer him our warmest welcome to the House.

One of Parliament’s greatest strengths has always been its evolution and ability to adapt. Given the recent decline of faith in politics that we have heard about, now more than ever we need to consider how our democracy can be reformed.

Britain is one of the most centralised states in Europe. That is one of the reasons why Labour has committed to undertake a rebalancing of power, providing a framework and process for economic devolution to towns and cities across England. However, we also recognise the need for a new constitutional settlement here in Westminster, including guarantees over the autonomy of local government, clarification over what citizens can expect from their Government, and a commitment to tackle geographic economic inequalities.

Given recent events, it is important that Westminster reflects on how trust and integrity can be restored. We need powers to clamp down on inappropriate outside earnings for MPs, and to look at how to eliminate foreign and corrupt money from UK politics. As we have heard, it is also important to consider how this Chamber can be more efficient and effective by exploring how the size of the House can be reduced while retaining what works best, because often we work very well.

The UCL Constitution Unit’s third report on democracy said that most people

“wanted a stronger parliament and thought ministers should not be able to change the law without full parliamentary scrutiny”.

We have seen a move in the opposite direction. The one thing I ask the Minister to take from this debate is to take that back to the Prime Minister and the Cabinet.

Procurement Bill [HL]

Baroness Hayman of Ullock Excerpts

3rd reading
Tuesday 13th December 2022 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I think I am the sole surviving Member of the Committee here today who contributed. I congratulate my noble friend the Minister and the Bill team on getting the Bill thus far. I am obviously immensely disappointed not to have succeeded in my attempt to source more local food in our procurement contracts, but I hope that this can be redressed in the other place.

My noble friend alluded to something that is a source of great concern to me. I have in my possession the memorandum from the Scottish Government, which expressed their concern and inability to add their consent to the Bill. Does she not share my concern that it would be very regrettable if the Scottish Government felt obliged to carry out their own Bill in this area, because of their concern about the continued ability to carry out cross-border procurement? Could this still be addressed in the other place before the Bill reaches Royal Assent?

[Baroness Hayman of Ullock (Lab)]

My Lords, I am sure that noble Lords will be very surprised to know that I thank my noble friend Lord Coaker for supporting me and sticking with the Bill all the way through. It has been a long haul, and I think we are all pleased we are at Third Reading.

I thank the noble Lord, Lord True. At the beginning of the Bill, he gave me an awful lot of time, as did his officials, when we had some serious concerns. As the noble Lord, Lord Fox, mentioned, we had a bit of a sticky start. The officials worked incredibly hard to get us to a position where we could properly debate the issues in Committee; at the beginning, we were not in that position, unfortunately. We all congratulated the noble Lord, Lord True, on his promotion, but we were also delighted as a Committee when the noble Baroness took over this Bill, because she was genuinely interested in what we were debating and genuinely understood what we were trying to achieve. I think she worked very hard and brought in some important improvements to the Bill, having listened to Committee. I thank her for her time, efforts and energy in helping us all to come out with a Bill that was better than what we had at the start.

I also thank the noble Lord, Lord Fox, and other Members who took part for the constructive work we did going forward on the Bill. It is much appreciated. I think all Members of the Committee would agree that the Bill we have sent to the other place is in a much better state than it was when we received it. I thank everybody very much for their hard work. I hope the other place considers our amendments seriously—I think they make the Bill better—and perhaps brings some further improvements that we can look at when it arrives back. It has been a pleasure to work on the Bill, but I am pleased we are now moving on.

[Baroness Neville-Rolfe (Con)]

I would like to briefly thank all those who have spoken. I agree with them on almost everything, and I also agree that we should commend my noble friend Lord True, now the Leader of the House, perhaps partly because of his achievements in this area. It has been a great pleasure to become a gamekeeper for the Government rather than be a poacher for the Back Benches. My noble friend Lady McIntosh of Pickering raised the devolved issues; of course, we hope that these things can be amicably resolved in the other place. Procurement is a devolved issue—the Scottish Government have not joined the UK Government’s Bill and will be maintaining their own legislation. Contracting authorities in Scotland will therefore not be bound by the Bill other than to enable their use of frameworks, dynamic markets and joint procurement. They are operating their own regulations, having transposed the EU directives into their own statute book. There are some outstanding issues, particularly with the Scottish Government. We are pursuing those, and I hope they will be resolved before we see the Bill again.

Procurement Bill [HL]

Baroness Hayman of Ullock Excerpts

Report stage
Wednesday 30th November 2022 Lords Chamber

[Lord Fox (LD)]

My Lords, this has been an interesting debate that covered a wide range of interests. It is always a pleasure to follow the noble Lord, Lord Moylan, and the case he made in favour of Amendment 72 was strong and subtle because by acknowledging the role that Clause 40 plays in this Bill, he also acknowledges the need for Amendment 72.

The noble Lord mentioned Amendment 113. The purpose of having the list in it is to make it clear that in the past, NHS staff have not been included and there are very real examples of problems in this area. Its purpose was to draw your Lordships’ attention to the need to include that cadre of people, who are making very large public procurements, in the realm of this Bill. He will be no doubt delighted to know that it is unlikely that I will press the amendment to a vote.

[Baroness Hayman of Ullock (Lab)]

The noble Lord, Lord Scriven, ably and clearly laid out why he has tabled his amendment and the concerns in this area. They partly remain from the debate we had in Committee, but they have also been raised on a number of further occasions, including earlier today. We have heard why people are concerned and why they think this amendment is needed. There are concerns around the VIP lanes and the way that different contracts were awarded during the Covid pandemic.

Listening to the debate today, earlier debates and other discussions, including in the media, as the noble Baroness said, it is clear that we have a real problem with a loss of trust in the procurement system, particularly government contracts. For me, this Bill is an opportunity to restore that trust. The Minister will no doubt say that the Government have listened and heard what was said, and the VIP lanes will not happen again. I trust what the Minister says, and we know that other people have said the same, but my concern is that if you do not close loopholes in legislation, they are still there for others to exploit. In my opinion, this opens a loophole because it makes it possible to hand out contracts in the way it was done before.

It is incredibly important that we retain the ability to procure when the usual channels need to be speeded up, for example, or if there is a need to do things in a slightly different way. Importantly, this clause allows that, but at the same time we must not allow this loophole to exist going forward. That is why we support this amendment and if the noble Lord wishes to press it to a Division, he will have our full support.

The noble Lord, Lord Aberdare, who has been extremely clear in putting across the concerns all the way through the progress of this Bill, made some really important points about late payments. Again, I know the Minister is keen to do what she can to resolve that problem, so I look forward to her response.

--- Later in debate ---

[Baroness Hayman of Ullock (Lab)]

My Lords, I have some amendments following on from the government amendments. They are simple probing amendments on the figure that the Government have come up with in their amendments. Amendment 79 seeks to delete from Clause 49 the figure of “£2” and insert “£3”. All I am doing here and in my further two amendments is trying to probe where the figure that the Government put into their amendments came from. I appreciate that in her introduction the Minister said that a lot of this was based on reducing admin requirements and addressing concerns raised by the Local Government Association, for example, but it seems quite a big jump. We are seeking to understand why the threshold has jumped from £2 million to £5 million. If the Minister could give some explanation as to where the figure came from, we would be very grateful.

I welcome government Amendment 129 on setting up the online system. That was raised by a number of noble Lords and discussed at length in Committee, so it is good that the Government have acted and produced this amendment. The noble Lord, Lord Clement-Jones, raised the important point that anything that is introduced has to be seen to be fit for purpose, so again it would be very helpful if the Minister could provide noble Lords with assurance as to how the system will work. If there is no annual report on the operation of the system, what is the overview process? How is it being assessed and monitored to ensure that it is fit for purpose?

I shall comment very briefly on the two amendments in the name of the noble Baroness, Lady Noakes. She introduced them clearly and succinctly, as she always does, for which I am very grateful. I am aware that the LGA had concerns about these areas, as it raised them with us, so I thank her for tabling the amendments. They address a very legitimate concern, so I hope the Minister has listened and will revisit this area of the Bill.

[Baroness Neville-Rolfe (Con)]

My Lords, Amendments 79, 81 and 105 have been tabled by the noble Baroness, Lady Hayman, and the noble Lord, Lord Coaker, to amend to £3 million the financial threshold above which contracting authorities would be required to publish contracts and contract modifications, and set and publish KPIs. The government amendments raise these thresholds to £5 million. The intention of this is to reduce the administrative burden on contracting authorities, while still providing increased transparency on larger contracts. Redacting contracts for publication where they contain commercially sensitive information is particularly burdensome for smaller contracting authorities, requiring detailed and costly checking by legal teams that they may not have or expensive legal advisers.

Where does the figure come from? I do not know exactly; that is the honest answer. I was offered options of £50 million, £10 million and £5 million. I chose £5 million because that is quoted in the Sourcing Playbook, which seemed a reasonable point. I believe that a threshold of £5 million balances the benefits of transparency with the costs and burdens of implementation.

The higher threshold in the government amendment has been welcomed by the Local Government Association. We want the arrangements to work, so we will monitor them carefully. We have powers to change the thresholds if we need to do so—for example, to bring in extra contracts as the system grows and matures—and if analysis of the new data gathered allows us to better understand how to ensure that the obligations are effective and proportionate; or, to go the other way, if we end up with a lot of difficulties. It seems a reasonable approach.

Amendment 130 tabled by the noble Lords, Lord Clement Jones and Lord Fox, seeks to require the Minister of the Crown to report annually on performance standards and feedback on the online system, including stakeholder satisfaction and accessibility. The data on the platform will be available in real time, and interested parties—of which there will be many—will be able to access information by using the tools available on the platform and by downloading the data for external analysis, such as statistics on the publication of notices and the progress of contracts. The platform will be accessible, as I have said, and will comply with the relevant legislation, including the Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, on which I am not, I fear, an expert. The Government are continuously monitoring the existing online platform that supports noticing under the current regulations and will continue to do so under the new regime and make changes as they are needed, so we are not inclined, on this occasion, to write in a review clause.

--- Later in debate ---

[Lord Lansley (Con)]

Anyway, I am on my feet not to try to answer the noble Lord’s question but to explain Amendment 167. Those present in Committee will recall that debate. There was some degree of uncertainty. Again, I appreciate my noble friend’s time and attention on the issue in the conversations we have had about it.

I will just explain the amendment’s purpose. Under Section 8 and Schedule 9, there is a process for the future whereby procurement-related chapters in future free trade agreements can be added to the Schedule 9 list and, by extension, give access to UK public procurement opportunities by statutory instrument. I agree with that. Because the Bill will achieve that effect, in the Government’s view it can repeal the Trade (Australia and New Zealand) Bill, because the purpose of that Bill is to bring into effect the procurement chapters of the Australia and New Zealand free trade agreements. That will no longer be necessary once this Bill has added them to Schedule 9 and it comes into force.

There are two issues. The first is timing. It was clearly the Government’s expectation that the Trade (Australia and New Zealand) Bill would have proceeded more rapidly through the other place—that it would be here and be concluded well before this Bill completes its passage into law, and that the sequencing would therefore work very straightforwardly. That might still be true, although the Trade (Australia and New Zealand) Bill completed Committee in the other place but has not yet been timetabled for Report. It is going more slowly than was originally intended. As I think noble Lords said in our debate on Monday, perhaps the Minister could attempt to explain the delays in the legislative process. Oh no, it was at Questions: my noble friend Lord Markham was not at liberty to explain the delays in the Government’s legislative programme, which was very sensible on his part. We cannot be sure that the Bills will be that way round but, in any case, it is more likely that the Trade (Australia and New Zealand) Bill will proceed before this Bill completes its passage. Let us hope that is the case.

The second and, in my view, more important question then comes into play. What if the Trade (Australia and New Zealand) Bill were to be amended? For example, there is an Opposition amendment tabled for Report in the other place, the effect of which would be to include impact assessments for a number of years on the Australia and New Zealand trade agreements—so, in fact, it is not restricted to the question of procurement but is about the overall impact of the two FTAs.

The effect of this Bill, as it is drafted in Schedule 11 on page 117 at the back of the Bill, would be to repeal it anyway. We would be in the unhappy position, if we carried on as we are, that we might amend the Trade (Australia and New Zealand) Bill and then find that that amendment, whatever merit it may have, would be repealed by virtue of the Procurement Act in due course. This is not a satisfactory outcome. Will the Minister tell us that the Government are now aware of this potential problem, subject to the passage of events and that, if it should turn out that the Trade (Australia and New Zealand) Bill is amended, the Government will commit to facilitating that any such amendment is not repealed by virtue of the provisions in the Procurement Act?

My amendment would avoid that possibility, because it would repeal only those provisions that were in the Bill when it was introduced on 11 May this year. If the Government cannot accept that, I hope that my noble friend will at least say that the Government will facilitate whatever measure is necessary—because whichever is the second Bill can change the first Bill, because Parliament cannot bind itself. So, almost by definition, the Government will have a mechanism—if they are willing to use it—to put things right using the second Bill. I hope my noble friend will give that reassurance.

[Baroness Hayman of Ullock (Lab)]

My Lords, both the amendments in this group ask for clarification and information from the Minister on the exact status of the trade agreements and how they are going to operate. I think the loophole that the noble Lord is trying to close is something that we need to think about very seriously, because we do not want to have trade agreements that then start to unravel. That is one of the big concerns around this.

In Committee, we had a quite extensive debate around this. I asked the Minister a specific question on Schedule 7 and I thank her for her detailed response, which I think it is worth drawing to the attention of the House. Schedule 7 says that a discretionary exclusion ground applies to a supplier whether the conduct occurred in or outside the United Kingdom. The question I wanted confirmed was whether Schedule 7 covered procurement opportunities that came through trade agreements.

The response from the Minister was that the conduct overseas, as referred to in Schedule 7, does cover anything that happens within procurement coming out of a trade agreement. I was very grateful for her clarification on this and thought that I should draw it to the attention of the House. It is a very helpful clarification of the remit of the Procurement Bill as far as trade agreements are concerned. However, it would be helpful if the Minister was able to provide reassurance, explanation and clarification on the questions raised by the amendments from the noble Lords, Lord Purvis and Lord Lansley, so that we all know exactly where we are, particularly around the Australia and New Zealand trade agreement.

[Baroness Neville-Rolfe (Con)]

My Lords, I thank noble Lords for their contributions to this short debate, particularly the noble Baroness, Lady Hayman, for repeating the advice we received on the application of Schedule 7 so that it sits on the face of Hansard. I hope the other things I have to say will help with her general understanding of the interplay between the trade and procurement Bills under consideration.

I will start by responding to my noble friend Lord Lansley. I understand the point he makes in his Amendment 167: in the coming months there may be important amendments to the Trade (Australia and New Zealand) Bill that will be designed to survive into the new regime. However, I respectfully suggest that an open-ended preservation of unspecified parts of that Bill, as his amendment proposes, is not the right way to deliver what is needed.

As he knows, I also think it would be a legislatively curious way of going about things. I have been consistent in saying that when we are certain of the amendments needed as a result of that other Bill, we will consider the provisions in the Procurement Bill and the best way to retain any such obligations. As I understand it, the timing should allow for this. Thanks to the eloquence of my noble friend Lord Lansley, we are well aware of the problem. Of course, the Government will have due respect for the expressed will of your Lordships’ House.

The noble Lord, Lord Fox, asked about contracting authorities. My response is that they just need to follow the provisions in the Bill. That will mean they are compliant with the trade agreements. I hope this gives the noble Lord some reassurance: they do not need to familiarise themselves with each individual agreement when they are engaged in procurement. If he finds that confusing, I am sure we can talk further on another occasion.

Amendment 127, tabled by the noble Lords, Lord Purvis and Lord Fox, has the effect that a contracting authority cannot be considered to discriminate

“if it takes into account environmental, social and labour considerations”

in dealing with a treaty state supplier. To accept this would create the opportunity for UK contracting authorities to actively discriminate against overseas suppliers. That could place the UK in breach of our international trade agreements, including the GPA. I am sure noble Lords will agree that that would not be acceptable, but I hope they will take some comfort from the fact that the Procurement Bill already achieves the main objective of this amendment. It includes flexibility to structure procurements in a way that furthers these ends. For example, Clause 22 is drafted widely enough that these matters can be used by contracting authorities as part of the basis for determining a winning bid, as long as it is non-discriminatory.

The noble Lord, Lord Purvis, who I think is not in his place, is a great expert in this area. He was concerned that some trade agreements refer to environmental and social criteria and some do not. I can reassure noble Lords that, where a trade agreement does not expressly permit these criteria, it does not mean that a contracting authority in the UK cannot take them into account. The Bill and the UK’s international commitments allow contracting authorities to continue to apply these criteria as they have for many years.

Procurement Bill [HL]

Baroness Hayman of Ullock Excerpts

Report stage
Monday 28th November 2022 Lords Chamber

[Lord Greenhalgh (Con)]

My Lords, I rise because I was named by my noble friend Lord Moylan, and because this is a subject that I feel very passionately about, as someone who spent 16 years as a councillor and six years as a council leader. Indeed, I am very proud of the work we did to collaborate. It is something that came to me a little late in my local government career, because I used to believe in two things: competition and fear—that is, fear of failure—but collaboration is also important in local government.

My noble friend Lord Moylan pointed to the vision we had in west London to come together to collaborate to drive down costs. In fact, when it came to library services, it was very much in the back offices that we could make savings so that libraries could stay open and the public could be served by excellent libraries. We worked very carefully across a whole range of areas, such as highways and helping children across west London who needed safeguarding and support to find potential parents who could look after them, in a way that would not have been possible without collaboration.

I am also a huge fan of mutualisation. I know that is coming up in group 6, but I want to say that as someone who was a pathfinder of the work that my noble friend Lord Maude brought forward. The organisation that was spun out of the council to provide school support services exists today and is trading very well with officers I had as senior officers in Hammersmith and Fulham. They preferred a life outside the council. I pay tribute to that movement. It had real vision behind it. It did not involve competition and was really about empowering people to provide the services that they were already providing in a better and more comprehensive way. I think that was a tremendous pathfinder and I only wish that it could have been rolled out more widely across local government and the public sector.

I probably should have declared my business interests as set out in the register before starting to speak. However, I can honestly tell noble Lords that I have absolutely nothing to do with public procurement in my business life because today it takes a long time. It is really difficult and the barriers to entry are very great. I am sure the purpose of this Procurement Bill is to make sure that public procurement works for the benefit of those services and we can use competition in a sensible way and it can be streamlined. I think the purpose of the amendment from my noble friend Lady Noakes is to ensure that, where local trading companies exist, they will not fall foul of the reasonableness test and things have to be put out to competition. In fact, as a council leader I bought a communications service from the City of Westminster because of the expertise it had in comms. That was an expertise that existed only in Westminster City Council, and I did not think that that needed to go out to competition. So I think we need to be sensible.

As a true loyalist, I support the Government if they can point out how a reasonable test can work to ensure that there is not unnecessary tendering in this instance. Provided I get those reassurances, I am happy to support the Minister in her endeavours to ensure that we sort out these areas and preserve areas such as local authority trading companies that provide an important part of services in local government.

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the noble Baroness, Lady Noakes, for her introduction to her amendment which was very clearly laid out. Again, I would like to join with other noble Lords who talked about the number of government amendments, not just here but in Committee. People who were here on the first day will probably remember that I was a little bit cross about it. But in response, the Minister has really grappled with our concerns in the lead-up to Report and I appreciate the time that she has spent doing that.

I will be brief. I will just say that we strongly support the noble Baroness, Lady Noakes, with her amendment. She clearly laid out why this is important for local authorities and by including her amendment you increase the efficiency of the public sector when it is structuring the way it delivers its services, much of which do not need to include the procurement laws that we see before us. All I would say is that it is important that we can ensure that local authorities and other public sectors bodies within this area can continue to deliver better public services and make savings, as the noble Lord just mentioned, by collaboration, working together and sharing services. That makes eminent sense, and I would hope that the Minister will be able to reflect on that.

[Baroness Neville-Rolfe (Con)]

My Lords, Amendment 9 tabled by the noble friends Lady Noakes and Lord Moylan—whom I am very glad to see back in this place—seeks to preserve the rules which currently apply to public service collaborations at paragraph 2 and 3 of Schedule 2. It was also very good to hear from my noble friend Lord Greenhalgh with his extensive local government experience.

I agree that the Bill needs to preserve these rules but believe that we have already done so. Paragraph 1(2)—to which the noble Baroness referred—says that a contract is not exempted if the main purpose of the contract could reasonably be supplied under a different contract, and that contract would not itself be an exempted contract. This provision serves to close a loophole where contracts that are mixed—that is that they contain both exempted activities and not exempted activities—might be inappropriately exempted from the regime.

However, unlike the exemptions for specific activities, all types of goods, services and works contracts are capable of being exempted under the vertical and horizontal exemptions, so the second part of the test at Schedule 2(1)(2)(b) is not met. The contract would remain exempt.

While I believe that we have preserved the rules, the Bill needs to be better understood by users and stakeholders. My noble friend Lord Greenhalgh also made some good points about unnecessary tendering. I met the Local Government Association, as I was concerned about this provision, and my officials are engaging with it following its representations to reach a common understanding. They will come back to me with an amendment that could be put forward in the House of Commons to clarify this provision, should one prove necessary. It will take a bit of time. Accordingly, I ask my noble friend to withdraw the amendment.

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[Lord Lansley (Con)]

My Lords, I am most grateful to my noble friend, not least because she referred to Amendment 169 in her helpful introduction to these amendments on utilities. Happily, we have reached the end of the Bill quite early on; that amendment relates to the very last page—page 118—where, in the present draft of the Bill, Commission decisions relating to public contract regulations, utilities and so on were to be repealed. Her explanation is interesting, in that it retains these European Commission decisions as retained EU law for the benefit of the Scottish regime. I am slightly perplexed as to why they were to be repealed in the first place since, presumably, the Scottish regime would have required them for this purpose regardless. However, that is just a question and it is only a matter of curiosity that I ask it.

My Amendment 23 is an amendment to government Amendment 22. As my noble friend made clear, the DPRRC said that this was a skeleton clause and was particularly unhelpful because it disguised the fact that policy had not been developed. I do not know whether that is the case or not; the point is that Ministers have come forward with a proposal for how these exemption decisions should work in relation to utility activities. I remind noble Lords that there are activities, and there are utility activities. The effect of Schedule 2 is to make it clear that certain activities should not be regarded as utility activities because they are in fair and effective competition and there are no restrictions on entry to that market. The decisions that were made were about electricity, gas and oil extraction, production and generation.

That being the case, the policy decisions in government Amendments 17 and 22, which my noble friend has explained, have the effect in Amendment 22 of saying, “These are the existing exemption decisions”. Government Amendment 17 says that, in future, Ministers can add to them or subtract from them by regulation. The point of my Amendment 23 is to ask, “When Ministers were reaching a view as to how these exemption decisions should be made in future, why did they not look at the Competition and Markets Authority, which we have as our own creature for the making of competition-related decisions, and put to it the job of determining whether a given activity in the utilities sector—actually, it would also be true in other sectors if exemption decisions were sought—is in fair and effective competition and there are no restrictions to the market?”

If my noble friend says, “Ah, but when Ministers make regulations, they will of course take advice from the Competition and Markets Authority”, I will be very happy. If she does not say that, however, I will be nervous, because what is the point of having the Competition and Markets Authority able to make such decisions in lieu of what used to be the European Commission’s responsibility if Ministers are going to pre-empt it themselves? I hope that she will be able to give me that reassurance about the use of the CMA for making competition-related decisions.

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the Government for tabling a lot of the amendments, which have helped to bring clarification around utilities; quite a bit of confusion was expressed in Committee. I also remind the noble Baroness, Lady Neville-Rolfe, who is not currently in her place, that she did say that we should be extremely careful about regulating private utilities in Committee. These amendments seriously have her stamp on them; I thank her for that. The noble Lord, Lord Lansley, made some important points. I hope that the noble Baroness, Lady Bloomfield, listened carefully and can give the reassurances that he requested.

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Moved by

[Baroness Hayman of Ullock]

33: After Clause 10, insert the following new Clause—
“Procurement principles
(1) In carrying out a procurement, a contracting authority must pursue the following principles—(a) promoting the public good, by having regard to the delivery of strategic national priorities including economic, social, environmental and public safety priorities,(b) value for money, by having regard to the optimal whole-life blend of economy, efficiency and effectiveness that achieves the intended outcome of the business case, (c) transparency, by acting openly to underpin accountability for public money, anti-corruption and the effectiveness of procurements,(d) integrity, by providing good management, preventing misconduct, and control in order to prevent fraud and corruption,(e) fair treatment of suppliers, by ensuring that decision-making is impartial and without conflict of interest, and(f) non-discrimination, by ensuring that decision-making is not discriminatory.(2) If a contracting authority considers that it is unable to act in accordance with any of these principles in a particular case, it must—(a) take all reasonable steps to ensure it does not put a supplier at an unfair advantage or disadvantage, and(b) publish a report within 90 days setting out the principles with which it could not act in accordance and its reasons.”Member’s explanatory statement
This amendment would require contracting authorities to pursue a series of principles when carrying out procurements.

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[Baroness Hayman of Ullock (Lab)]

My Lords, I have a number of amendments in this group. First, Amendment 33 refers back to the principles that we debated at length in Committee; they were originally in the Government’s Green Paper and were consulted on. Our concern is that those principles were then left out of the Bill even though the objectives were included, so my amendment

“would require contracting authorities to pursue a series of principles when carrying out procurements.”

Amendments 35 and 36 in my name look to

“require social and public value to be considered in the procurement objectives.”

We believe that social and public value are important requirements for any contracting authority to consider, so I have asked for that to be put through to the procurement objectives. This would encourage anyone contracting, for example, to work with local suppliers; to encourage contractors to reduce their CO₂ emissions; to encourage the hiring of more apprentices; and to encourage greater diversity. If you are going to deliver the levelling up that the Government are so keen on and achieve net zero, it is important to include these principles.

We know that social value is included in the national procurement policy statement but it is not referred to in the Bill itself. We also know that public benefit is mentioned in the Bill, but that is a pretty vague concept. It is not clear to us how social value would sit within that framework.

I also have Amendment 46. We debated at length in Committee the national procurement policy statement. Many concerns were raised about the Government expecting Members to take at face value the fact that certain things can be included in the NPPS, but, of course, we have absolutely no guarantees other than that the Government are saying that they will be. Clearly, once the Bill becomes an Act, we will need to see a new NPPS, so we believe that the Bill should include the set of principles that need to be within that NPPS so we can have confidence that it will deliver what it needs to do.

My Amendment 48 aims to subject the NPPS statement and amendments to the affirmative procedure so that the existing one will remain in force if, for any reason, a new statement is rejected. We think this is an important fallback position.

Finally, my Amendment 96 creates a process to ensure contracting authorities safeguard the public interest when considering whether to outsource or recontract services. This is something that has been raised with us by a number of different contracting authorities that want that flexibility.

There are a number of other amendments in this group which we support, and I will just draw attention to a few. My noble friend Lord Hunt has an amendment on adding accessibility to the objectives. The noble Baroness, Lady Worthington, has an important amendment on defining public benefit. We know how strongly she feels about the environment and, again, we have debated that at length. It is really important that we do not lose that in the further discussions. The noble Lord, Lord Lansley, has a number of amendments that we support, and we look forward to hearing his introduction to them.

Finally, it is really important there is clarity around principles and objectives as this Bill goes through the process of becoming an Act. Good sentiment from the Government and the Minister are not sufficient to ensure that we actually have good procurement at the end of the day. That is what we want to see. I beg to move.

[Baroness Worthington (CB)]

My Lords, I will speak to Amendment 42 in my name in this group and in support of Amendments 46 and 47. I will keep my comments brief. We had a very good debate in Committee about what should go into the Bill in relation to the principles that will guide procurement. In my amendment, I sought to be as precise as possible and selected two specific issues relating to climate change and biodiversity loss. The reason for that is that it has been pointed out to me that society’s priorities shift over time and primary legislation should be regarded as very serious: you therefore should not put a long shopping list of things into it. However, on these two issues, I cannot imagine a time henceforth when we will not be concerned about the impacts of climate change or biodiversity loss. The Government have a huge lever for change to drive investments into solutions. It would be a great shame if we were not to make it very clear in the Bill that this lever is something that we are willing and want to use.

The more the public purse can create markets and drive investment, the more we can rely on the private sector to come forward with innovation. It will bring down the cost over time. If we do not use public procurement, we will be expecting more from our private sector, and it will debatable whether it will be able to enter into markets that are highly mature and overcapitalised. We are not talking about a level playing field here. If you want private solutions to come in, you have to support them either through government policy, through taxation or through procurement. This Bill is a huge lever that I hope we will pull.

Although I would be delighted to test the will of the House of Amendment 42, it is actually more important that we put these principles in on the operational aspects of this Bill, in which case Amendments 46 and 47, which relate to national policy planning guidance, are hugely important, and I support both of those amendments. I look forward to hearing those who speak to them and to the Government’s response.

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This has been a long debate. I believe that I have made a strong case for keeping the framework of the Bill as it is, but obviously it will also be important that the NPPS contains the right policy provisions. I respectfully request that these various amendments be withdrawn following the reassurances I have been able to give.

[Baroness Hayman of Ullock (Lab)]

My Lords, I must say that I am pretty disappointed with the Minister’s response to my amendments, particularly to those on the NPPS. I give notice that I intend to test the opinion of the House on Amendment 46, when we reach it. I also let the noble Lord, Lord Lansley, know that, if he chooses to test the opinion of the House on his Amendment 47, we will support him. In the meantime, I beg leave to withdraw Amendment 33.

Amendment 33 withdrawn.

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Moved by

[Baroness Hayman of Ullock]

46: Clause 12, page 9, line 8, at end insert—
“(aa) give due regard to the following principles—(i) promoting the public good, by having regard to the delivery of strategic national priorities including economic, social, environmental and public safety priorities,(ii) value for money, by having regard to the optimal whole-life blend of economy, efficiency and effectiveness that achieves the intended outcome of the business case,(iii) transparency, by acting openly to underpin accountability for public money, anti-corruption and the effectiveness of procurements,(iv) integrity, by providing good management, preventing misconduct, and exercising control in order to prevent fraud and corruption, (v) fair treatment of suppliers, by ensuring that decision-making is impartial and without conflict of interest, and(vi) non-discrimination, by ensuring that decision-making is not discriminatory,”Member’s explanatory statement
This amendment would require a Minister to consider a set of principles before publishing the national procurement policy statement.

[Baroness Hayman of Ullock (Lab)]

I would like to test the opinion of the House on Amendment 46.

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This Bill presents a vitally useful tool for maintaining or raising standards and preventing good employers being undercut by bad ones. I hope that the Government will take at least something from my proposed amendment.

[Baroness Hayman of Ullock (Lab)]

My Lords, this has been a short debate, but this group contains some very important amendments that the Minister should consider carefully.

I turn first to the amendment in the name of the noble Lord, Lord Fox. He introduced it extremely clearly and explained why he considered it necessary. He made an important point: if you give a contract to somebody who, not a very long time afterwards, is found guilty of the offences outlined in the noble Lord’s amendment, what recourse is there for other people who have bid for that contract and behaved perfectly properly? We know that contracts are often given for a number of years, so this is likely not to be something that happens once in a blue moon; it could become a problem. If the Minister is not inclined to accept the noble Lord’s amendment, I ask her to take his concerns back to her department to see whether there is another way to have some kind of recourse or review if such a situation were to arise.

My noble friend Lord Hendy’s amendment is incredibly important because, as he rightly said in introducing it, we have Clause 29, which looks at excluding suppliers for improper behaviour—he listed many of the improper behaviours that are included in this—but what is not included is what happens if the rights of an employee or worker are breached. Surely the rights of those who work on contracts and work for people should be fully supported by the Government. We have laws on employment rights for a purpose. Surely, in looking at procurement and who to give what are often extremely lucrative contracts to, this Bill should consider employees’ rights and ensure that companies that have behaved improperly by breaching employment rights are excluded.

This seems a very straightforward amendment to add to the Bill. It would give employees more confidence and would give people who are looking to employ people confidence that they are treating their workforce in the way the law of our country dictates. I urge the Minister to support this amendment.

[Baroness Neville-Rolfe (Con)]

My Lords, I thank the noble Lord, Lord Fox, for Amendment 89 on financial and economic misconduct. The amendment would permit the exclusion of suppliers where there is evidence of certain economic and financial offences. Of course, suppliers who commit fraud, bribery and money laundering and have failed to self-clean have no place winning government contracts. There are already mandatory grounds for exclusion that cover the most serious offences of this nature, as set out in Schedule 6. It is worth noting that the scope of economic and financial offences covered is significantly wider than in the EU regime that it replaces, including a broader range of theft, fraud and money laundering offences.

However, the mandatory grounds in Schedule 6 rightly require the supplier or a connected person to have been convicted. By providing for exclusion without the requirement for a conviction, the amendment would require authorities to make a judgment as to whether there is sufficient evidence that offences have been committed in order to apply the ground. They would need to make this judgment at a point when the investigating authorities have not reached a view, which would be very difficult. The exclusions regime requires all grounds to be considered in respect of every bidder in a procurement, so authorities would have no choice about whether to consider these matters.

I thank the noble Lord for drawing our attention to the review of finance and corruption in local government. The recommendation in that review was that we consider whether this proposal is feasible. We have given it careful consideration but are not taking it forward, for the reasons I have already touched on. However, I would add that the very fact pointed out by the noble Lord—that investigations by the authorities into these matters, which can apply to many different areas of regulation, often take considerable time—speaks to the complexity of making these judgments within the contracting authorities. There is no reason to think that they would find this any easier than the relevant and proper authorities. In fact, they would find it harder, so it would be a new burden on those investigating suppliers—it could be a significant one—and on suppliers themselves, which I am unwilling to impose.

I turn now to Amendment 91A, tabled by the noble Lord, Lord Hendy, which introduces a discretionary exclusion for “significant” breaches of workers’ rights. I pay tribute to the noble Lord’s work in this area. In my view, the exclusion grounds already cover the most serious breaches of workers’ rights, so the mandatory grounds in Schedule 6 include slavery and human trafficking offences, offences relating to employment agencies and gangmasters, and refusal or wilful neglect to pay the national minimum wage. These are based on the serious labour offences within the purview of the director of labour market enforcement.

The amendment begs the question of what constitutes a “significant” breach. Unless there is a settled consensus on this point, which I am not aware of, it will be difficult for both suppliers and contracting authorities to interpret. We should remember that suppliers will need to self-declare whether they are subject to any of the grounds, and that contracting authorities will need to consider whether suppliers meet the grounds in each procurement that they run. That is quite wide-ranging in relation to employment rights. Questions of whether a breach is significant, and, indeed, whether it relates to rights derived from statute, common law or international obligations, will consume a disproportionate amount of time and resources. I do not doubt that there are a number of behaviours in different areas which the exclusion grounds we have set out might or might not cover; but the purpose of the exclusions regime is to protect against suppliers that may be fundamentally unfit to compete for public contracts. It is not a means to enforce employment rights, or a lever to incentivise certain behaviours.

What we have introduced in this Bill is a much tougher regime of debarment, with central resources devoted to assessing suppliers and deciding centrally on debarment. This is tough for direct and indirect suppliers, as one bad apple in a company can cause them to be debarred—a very strong incentive to ensure that bad behaviour does not occur in the first place, of course; or, where it does, to take remedial action. However, expanding the exclusion grounds, as proposed in this amendment, will have a chilling effect on engagement in procurement, as I explained from a business perspective before I became a Minister and turned into the gamekeeper. We must be fair and remember that we have an interest in more competitive markets that improve value for money, innovation and productivity. I am grateful to those who have spoken for raising these issues. However, I believe we have done enough in Schedule 6, and I respectfully ask the noble Lords, Lord Fox and Lord Hendy, not to press their amendments, given the lateness of the hour.

The noble Baroness, Lady Hayman, raised a new point about the carry-on consequences of the issues we have discussed in this group. I am not sure that we can do anything about that, but I will certainly have a look at that as the Bill progresses. I beg to move.