Procurement Bill [HL]

Debate between Baroness Noakes and Lord True

Committee stage
Wednesday 13th July 2022 Grand Committee

[Lord True (Con)]

Yes, I hope that letters that are sent out are shared with other Members of the Committee and, if not, I will make sure that they are. I would not want to encourage the noble Lord too much in the hope, because the Government’s position is that we do not think it is advantageous to encrust the primary legislation with the range of aspirations that we have heard from many sides in this Committee. The noble Lord can have another try, but I cannot promise that it will be different. But I will write to him and circulate the letter anyway.

I respectfully request that these amendments be withdrawn or not moved.

[Baroness Noakes (Con)]

My Lords, we have had a very wide-ranging, and rather long, debate on this group of amendments. I will start with my noble friend Lord Lansley’s Amendment 61, on the list of strategic priorities. As I predicted, the Minister heard various lists of different kinds of things that noble Lords wanted in the Bill. Let me say that I was wholly convinced by my noble friend’s explanation of why they should be encrusted—as he put it—in the Bill, but I suspect that I am not representative of the Committee in that regard.

In respect of Amendments 63 and 64, my noble friend helpfully said that the Government would share the draft of a national policy statement as part of the consultation process, which I think clarifies that aspect.

I turn to the lead amendment in this group, Amendment 60—the may/must amendment. My noble friend the Minister argued for flexibility for the longer term; other Governments may not want to issue such statements, and I completely accept that. What I did not hear from my noble friend was that this Government commit to publishing a statement under this clause. I would have hoped that, at least from the Dispatch Box, the Minister would commit to publishing the statement, having included Clause 12 in the Bill. He talked about the timetable for the introduction of the Bill and the six months of learning process, but I did not hear what happens to the policy statement. I hope that he might reflect and perhaps give clarity on that in writing or at a later stage.

With that, I beg leave to withdraw.

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[Lord True (Con)]

I respectfully disagree with the noble Baroness. It is acknowledged from the other side that value for money is an extremely important criterion. It is one of the things in Clause 11. We have discussed mechanisms and we have had discussions about the national procurement policy statement, wherein, in the draft on the table, lie large numbers of things which the noble Baroness is seeking. It is frankly not the case to say that there is nothing in here other than value for money—that is not the Government’s submission to your Lordships. The Bill takes forward the change from the use of the term “most economically advantageous tender”, MEAT, to “most advantageous tender”, MAT. That is to reinforce the precise message that procurers can take a broader view of value for money than simply lowest price. We believe that the amendment tabled by the noble Baroness is not necessary.

Amendment 129A, in the name of the noble Lord, Lord Aberdare, would make it explicit in the Bill that contracting authorities must always include an objective mechanism for determining price or cost after contract award where and to the extent that value for money, but not price or cost, is evaluated when assessing which tender is the most advantageous. We believe that commercial practice and other provisions in the Bill mean that this amendment is unnecessary. It would be highly unusual for contracting authorities not to include an evaluation of price or cost when assessing value for money in their procurements. This is good commercial sense.

Further, contracting authorities are not free to act unbounded. The procurement objectives, including those in Clause 11, will apply. I do not think it is necessary to expressly legislate for it. We will, however, publish guidance to contracting authorities on evaluation. The noble Lord may well ask me when the guidance is to be published. He also asked how we can be sure that that guidance will bite further. It may be that I can come forward with further information after Committee.

I am sorry, I have been given a long speech—

[Baroness Noakes (Con)]

We would not mind if my noble friend made it shorter.

[Lord True (Con)]

I would be happy to. There were a lot of amendments. I do not want to break down and not continue, but I have about four more minutes to go. With the Committee’s permission, would my noble friend—

Procurement Bill [HL]

Debate between Baroness Noakes and Lord True

Committee stage
Wednesday 6th July 2022 Grand Committee

[Lord True (Con)]

In answer to an interesting question in the Chamber yesterday, I implied that my noble friend Lady Wheatcroft had not been present in Committee. I had not noticed that she was here and I personally apologised to her afterwards. But, as my remark lies in Hansard, I thought it appropriate to correct the record. My noble friend Lady Wheatcroft graciously said that she did not expect me to do this, but I think that it is the proper thing to do.

In moving Amendment 10, I will speak to this group of government amendments. Monday was difficult and, on behalf of the Government, I candidly acknowledged the contrition and sympathy that we felt about the number of amendments that were put down. I think that we have arrived at a better place. As noble Lords know, we arranged a briefing for noble Lords on today’s amendments and I am grateful to the officials who gave this at short notice. I hope that noble Lords who were not able to be there have had the chance to consider the supplementary information on the government amendments that was circulated. Officials will be available again tomorrow to provide a technical briefing for your Lordships on the remaining government amendments.

The government amendments in this group refer only to Schedule 2, which lists what is an “exempted contract”. The exemptions are not mutually exclusive and a contract can be an exempted contract if it falls under multiple paragraphs of this schedule. If a contract is exempted, its award and management will not be subject to any of the legislation, unless it is an international organisation procurement, where some obligations apply.

Amendment 10 to Schedule 2 would ensure consistency with similar drafting elsewhere in the Bill. For any of the exemptions in this schedule to apply, the subject of a contract must represent the main purpose and cannot reasonably be supplied under a separate contract. The amendment would add “reasonably” to this description and is consistent with drafting elsewhere in the Bill—for example, on mixed procurements, the duty to consider lots and estimating the value of a contract.

Amendment 11 clarifies the exemptions for vertical arrangements, which arise where a contracting authority enters into an arrangement with an organisation that is connected vertically with it—in other words, with an entity under its control, or what is called a “controlled person” in the legislation. A typical example might be a trading company set up by a local authority to fulfil a specific task, such as carrying out waste treatment and collection for the authority. We briefly discussed this on our first day, when I said that the Government would bring forward further facilitating amendments; I know that the Liberal Democrat Front Bench expressed an interest in that.

Amendment 12 deals with a consequential update to clause formatting following Amendment 11. These amendments to the definition of vertical arrangements have been tabled following some helpful feedback from stakeholders, including the Local Government Association, of which I believe I still may be a vice-president, in which case I should declare an interest. The feedback showed that the drafting did not properly provide for the fact that such arrangements may involve control by more than just one contracting authority. The government amendments therefore ensure that this exemption will continue to apply where there is joint control of the controlled person, as it does now.

Amendment 13 has two parts. The first part—the inclusion of new sub-paragraph (5)—is a result of the amendment to provide for joint control. It ensures that joint control may still be achieved where one person is representing multiple contracting authorities on the board—or similar body—of the controlled body. This continues the existing position in Regulation 12(6) of the Public Contracts Regulations 2015. The second part—the inclusion of new sub-paragraph (6)—stems from the updated definition of “contracting authority”, which means that the vertical arrangements exemption would unintentionally have allowed a wider category of organisations to access the exemptions than intended. This amendment ensures that the vertical and horizontal arrangements are available only to the intended public sector contracting authorities and not to public undertakings and private utilities, which have arrangements that reflect their more commercial nature.

Amendment 14 is a mirror of Amendment 13, for the same reasons. In this case, the purpose is to limit the availability of the horizontal arrangement exemptions to the intended public sector contracting authority recipients.

Amendments 15 and 16 remove the term “legal activity”, which is currently defined by reference to the Legal Services Act 2007, and replaces it with the term “legal services”. This is necessary because the definition in the 2007 Act is not appropriately applicable in a Scots law context. Leaving the term undefined allows the exemption flexibility to adapt to different legal systems within the confines of the remainder of the exemption.

I turn now to the final government amendment in this group. Amendment 17 adds a reference to legislation that explains the meanings of “contract of employment” and “worker’s contract” in Northern Ireland. This is a result of the talks with the Northern Ireland authorities. Adding the Northern Ireland reference again allows the exemption flexibility to adapt to different legal systems, provided that the remainder of the exemption is met. I beg to move.

[Baroness Noakes (Con)]

My Lords, I shall speak to Amendment 11A, which is an amendment to government Amendment 11. Amendment 11A is really only a place- holder to discuss some broader concepts about this Bill and about paragraph 2 of Schedule 2 in particular.

I confess that I paid little attention to the government amendments ahead of our first day in Committee. Like other noble Lords, I was completely overwhelmed by the huge groupings and the lack of explanation that arrived before they were tabled—hence, I tabled Amendment 11A only yesterday. I am certainly grateful for the explainer that was circulated yesterday. I have not yet read all 60 pages, but a reasonable summary is something like this: “We are trying to keep the new UK procurement code as close as possible to EU rules.”

This is at the heart of one of my main problems with this Bill: we have not created a UK code at all. The Bill may well have simplified or reduced the number of different sets of rules, but that has not achieved a significant simplification of the rules to any meaningful degree. Furthermore, it uses terms and concepts that are comprehensible only to procurement practitioners and in a way that is often alien to the way in which we do things in other areas. It has few principles and a whole load of pernickety rules, of which this schedule is one. In short, this is the EU way of doing things and not the UK way of doing things. I believe that we have missed an opportunity to create something that would have worked better for UK businesses and, indeed, for the UK public authorities that have to comply with it.

I turn to the specifics of Amendment 11A. The amendment would delete new sub-paragraph (2A) in Schedule 2, which is contained in my noble friend’s Amendment 11. Sub-paragraph (2A) is not new, as it rewrites sub-paragraph (2)(c) of the existing Bill. The effect of sub-paragraph (2A) denies the vertical arrangements exemption that my noble friend has just described if the body concerned has even one share held by other than a public authority. I think that this is nonsense. Holding one share or any other kind of minority holding does not change the nature of control, which is what paragraph 2 purports to base the vertical exemption on. It would restrict the exemption to bodies that are wholly owned by the public sector, in effect, and I can see no economic rationale for that.

I also want to challenge two other aspects of paragraph 2, arising out of new sub-paragraph (2B), which is a rewrite of the existing sub-paragraph (2)(b). There is one material change from the existing sub-paragraph (2)(b). It is similar to the issue that I raised in the context of Amendment 4, which we debated on our first day in Committee. The existing sub-paragraph (2)(b) refers to a person who

“exerts, or can exert, a decisive influence”.

The new version merely talks about a person who “exerts a decisive influence”. I explained on Monday that the conventional UK approach when looking at things such as control is to use a test based on the capacity to control rather than actual control. Curiously, paragraph 2 uses that concept of capacity to control because it uses the basic definition of control via the parent undertaking definition in Section 1162 of the Companies Act 2006. Under that section, control exists if a parent undertaking holds a majority of voting rights or has the right to appoint or remove a majority of the board. That is, control exists for the basic purpose of this clause if there is the ability to control, whether or not the right is used. Can my noble friend explain why the Government are using one approach to control but another for decisive influence, deliberately caused by the amendment that he has just moved?

I now turn to the concept of decisive influence itself. If someone other than a controlling authority exercises decisive influence, the vertical arrangement exemption does not apply, so it is important to find out what it means. I expected to find a definition of the term “decisive influence” in the Bill, because it is not a term that is found in general use related to companies or the control of organisations, but I cannot find a definition.

Interestingly—I say “interestingly” as I find it interesting, but I am a bit of an anorak on these things—Section 1162 of the Companies Act contains the concept of dominant influence, which is an alternative way of establishing whether a parent undertaking exists. A dominant interest is defined in Schedule 7 to that Act and requires a right to give directions to a board of directors that the board of directors has to comply with. The Companies Act does not use “decisive influence”; it uses “dominant interest”.

How then do we establish whether decisive influence exits? Do we assume that because the Bill does not use the Section 1162 definition it means something different? That might imply that it is something below the level of control, but precisely what it is getting at seems unclear. As far as I can tell, decisive influence is not a term used in English law, which comes back to my point that we are still rooting ourselves in EU law. It is found in EU competition law and, in that context, it is used as part of a rebuttable presumption of control, so that if a majority of shares are held the parent undertaking is assumed to exercise decisive influence on the subsidiary undertaking.

If it means a variant of control, we end up saying that vertical arrangements will not be exempt even if a contracting authority can control a body. If another body in fact controls that body, it does not matter if the other body can control it but does not do so; it just looks at whether it exercises control. However, the exemption is denied if a tiny fraction of the shareholding of the undertaking is held outside the public sector. There is another leg, which is if less than 80% of the activity is carried out for the contracting authority. There is a confusing set of thresholds for denying the exemption. It is even more complicated if joint control is involved, but I will not go into that. I submit that logic and common sense have somehow gone missing in paragraph 2 and that it needs a rethink.

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[Lord True (Con)]

My Lords, I could not possibly be tempted, particularly at 8.04 pm when the Committee needs to finish shortly and I already have a very long response to a large number of amendments. The Bill does have pipeline notices, which I have discussed: I will engage with the noble Lord on that before Report and I welcome that.

Amendment 141 is about a hugely important issue to which so many noble Lords spoke. The noble Baroness seeks to amend Clause 24 to require contracting authorities to take account of accessibility and design for all principles when drawing up their terms of procurement, except in duly justified circumstances. This is an issue of fundamental importance. It is of concern for disabled people, and I know that your Lordships hold concerns about accessibility very close to their hearts; it comes up in every piece of legislation.

As part of our broader goal of a simpler regulatory framework and increased flexibility to design efficient, commercial and market-focused competitions, the Bill does not dictate how terms of procurement including technical specifications are to be drawn up, which is the issue around Clause 24. It simply contains what is prohibited by international agreements and applies to all “terms of a procurement” as defined in Clause 24(5). We believe that this approach is better than the existing approach, as buyers are forced to truly analyse and develop the content of their specifications to address the needs of all those the public contract should support.

The UK has legal obligations, which we readily own and which will dictate how terms of procurement are drawn up, with accessibility covered by Section 149 of the Equality Act 2010, as mentioned by the noble Lord opposite. We consider that helps deliver the intended outcomes of both the current duties in this area contained in Regulation 42 of the Public Contracts Regulations 2015 and of this amendment.

I have heard the very strong speeches made by noble Lords on all sides, and I have seen the submissions from the RNIB and others. It is very important that we should have constructive discussion to test whether the Bill delivers the accessibility that your Lordships hope for. The Government remain absolutely committed to ensuring that public procurement drives better outcomes for disabled people. In our contention, there is no dilution of the commitment to accessibility under the Bill. The Government are clear that accessibility criteria should always be taken into account in every procurement, and the existing legislation ensures that that is the case.

However, we will engage further on this and on the other themes and points put forward by so many noble Lords in this wide-ranging debate. In those circumstances, I respectfully request that the amendments are withdrawn and not pressed.

[Baroness Noakes (Con)]

My Lords, the only amendment that is going to be withdrawn is my rather small amendment in this group, Amendment 22. My noble friend said that we needed flexibility, and that good reasons were there to allow flexibility. I completely buy the need for flexibility in the procurement rules, but I still wonder whether good reasons without some other constraint around them are sufficient. I was pondering whether the good reasons need to be attached to value for money, or something similar. That may be covered by the interaction with Clause 11, which sets up procurement objectives, but I am probably too tired to work that out in my own mind at the moment. I will consider it further, and my noble friend the Minister, who also said he would consider it further, might like to reflect outside this Committee on how that works out. For this evening, I am sure that everyone will be mightily relieved if I beg leave to withdraw my amendment.

Ministerial Code

Debate between Baroness Noakes and Lord True

Tuesday 27th April 2021 Lords Chamber

[Lord True (Con)]

My Lords, I believe the Prime Minister does and will conduct himself, as he has, in accordance with the principles of public life.

[Baroness Noakes (Con)]

My Lords, does my noble friend the Minister agree that while Westminster and the mainstream media are getting excited about things such as the decoration of the Prime Minister’s flat and who said what to whom in texts, away from the Westminster bubble, people are much more interested in getting their vaccinations, getting back together with their families and friends and getting the recovery of the economy under way?

[Lord True (Con)]

I do agree with my noble friend. The Prime Minister, in denying one of the more absurd allegations, made the same point. If I am allowed a personal comment: I have the privilege of having my second vaccination tomorrow thanks to a modern miracle of science. We should all be profoundly grateful for that and the way it has been carried through in this country.

House of Lords Appointments Commission

Debate between Baroness Noakes and Lord True

Tuesday 5th January 2021 Lords Chamber

[Baroness Noakes (Con)]

My Lords, it has been asserted that public confidence in your Lordships’ House has been lost because of the number of Members, but does my noble friend agree that there is no evidence for that and that therefore there is no need to change any of our arrangements, which work extremely well on an advisory basis, for the appointment of Peers to this House?

[Lord True (Con)]

Yes, I agree with my noble friend. I believe that the reputation of the House is weighed on many factors other than this. The behaviour of Members, including those recommended by the House of Lords Appointments Commission to sit on the Cross Benches, is one of the factors that the people who watch this House consider.

UK-EU Future Relationship Negotiations and Transition Period

Debate between Baroness Noakes and Lord True

Tuesday 8th December 2020 Lords Chamber

[Lord True (Con)]

My Lords, I underline totally the importance of a manufacturing sector to this country. It is absolutely central to this Government’s strategy and policy of levelling up. So far as the negotiations are concerned, a huge amount of progress has been made but the UK’s position has been absolutely clear from the outset. A negotiation needs each of the two partners to understand the position of the other.

[Baroness Noakes (Con)]

My Lords, is my noble friend the Minister as surprised as I am that none of the noble Lords who has spoken from the Benches opposite has acknowledged, let alone praised, the amazing commitment of my noble friend Lord Frost as he has valiantly sought to negotiate a deal in the UK’s interests? Will the Minister join me in expressing this House’s thanks for my noble friend Lord Frost’s outstanding public service during the negotiations?

[Lord True (Con)]

My Lords, I profoundly agree with what my noble friend Lady Noakes says. It has been an outstanding programme of public service from my noble friend Lord Frost and his team. Let us hope that what we all seek is crowned with success.

Ministerial Code

Debate between Baroness Noakes and Lord True

Tuesday 24th November 2020 Lords Chamber

[Lord True (Con)]

My Lords, I am grateful for the right reverend Prelate’s first comment. It is not the case that this Government do not value civil servants. Indeed, the joint letter sent out by the Prime Minister and the Cabinet Secretary yesterday reaffirmed their admiration for the work of civil servants.

[Baroness Noakes (Con)]

My Lords, does my noble friend the Minister agree that it is a strength of the Ministerial Code is that it does not require the removal from office of a Minister who breaches it but emphasises that the Prime Minister is the final arbiter on whether a breach has occurred and, if so, what the consequences are, which then allows him to make considered judgments in cases that are not black and white?

[Lord True (Con)]

Yes, my Lords, these things are a matter of judgment. No one has referred to the fact that my right honourable friend the Home Secretary has made a very strong apology for her actions.

EU Exit: Negotiations and the Joint Committee

Debate between Baroness Noakes and Lord True

Wednesday 21st October 2020 Lords Chamber

[Lord True (Con)]

My Lords, a Written Ministerial Statement was issued. I am sorry if the noble Earl feels that more could and should be said. I always enjoy my engagements with him. The Statement referred to a number of matters discussed in the joint committee on 19 October. In addition to that, if he wants, I can be more helpful: the committee discussed work on the establishment of a list of individuals to sit on an arbitration panel, as required under the WA. Both parties are progressing work to establish a list of suitable arbitrators. As the noble Earl knows, it was agreed to have a further meeting of the committee in November, and other work will continue in the interim. The discussions are obviously ongoing, and I know that he understands, and I respect that, that there are some constraints on what one can share at a time of active talks.

[Baroness Noakes (Con)]

My Lords, following last week’s EU Council meeting, Angela Merkel said:

“We also acknowledge that the UK would like to have a certain amount of independence”.


I emphasise “a certain amount”. Does the Minister agree that until the EU fully understands and respects the fact that we will have 100% independence, the EU alone will be responsible for the lack of a free trade deal, along with the damage that will do to the economies of many of its member states?

[Lord True (Con)]

My Lords, of course it is essential that that point is recognised. I have made a practice, since I had the honour of taking on this brief, of not criticising the actions of any EU member state or anybody within the EU, and I shall forbear to comment on what any individual European leader may or may not have said. However, my noble friend is absolutely right that our independence, our right to set our laws, to control our own waters, and all the well-known expectations—not requests or demands—of an independent state need to be recognised by the other party.

EU Exit: End of Transition Period

Debate between Baroness Noakes and Lord True

Thursday 24th September 2020 Lords Chamber

[Lord True (Con)]

My Lords, as far as local deliveries are concerned, the Kent Resilience Forum is putting material in place. I sought to explain that an effort will not be made to stop every vehicle. The expectation is that before they move to ports, vehicles should have the proper documentation. That is good for hauliers, traders and the country. The system being put in place will enable the interception of certain vehicles, which will be required to comply and be subject to a fine if they arrive at port having not complied. It is an exemplary system which we hope will encourage all to comply, as most traders will want to.

[Baroness Noakes (Con)]

My Lords, I congratulate the Government on the progress that they have made in being ready for 1 January and on the support that is being given to businesses. The former EU Internal Market Sub-Committee of the EU Committee, of which I was a member, issued a report in 2019 on Brexit and the implications for transport. It reported that the majority of the UK’s exports and imports of goods was handled by overseas hauliers, primarily in vehicles registered in Poland, Romania and Ireland. I know that the Government have been working very closely with the UK haulage industry. What has been done with foreign hauliers to ensure that they are ready, especially in view of their limited language skills?

[Lord True (Con)]

My Lords, the Government are certainly reaching out to all hauliers. I will provide my noble friend with details on those specific countries as soon as I can.

Brexit: Civil Service Code

Debate between Baroness Noakes and Lord True

Thursday 17th September 2020 Lords Chamber

[Lord True (Con)]

My Lords, I think it is mildly wide of the Question before the House. Also, some quite serious allegations were made by the noble Lord. I simply repeat that there are very clear procedures available for civil servants who believe that they are being required to act in a way that conflicts with the code. They can start by taking it to their line manager, and the process goes on. As I have said, I am happy to circulate the appropriate procedures to the House.

[Baroness Noakes (Con)]

My Lords, noble Lords have focused on one particular aspect of the Civil Service Code, but there are many other requirements, one of which is that civil servants must not

“frustrate the implementation of policies once decisions are taken by declining to take, or abstaining from, action which flows from those decisions.”

Will my noble friend agree that the balancing of the different requirements in the Civil Service Code is best handled by the Civil Service under the procedures he has referred to, and not by a party-political Parliament?

[Lord True (Con)]

Yes, I strongly agree with my noble friend. I do think this is a matter that should be left to the judgment of the leaders of the Civil Service—the Cabinet Secretary of the time being the main one. My noble friend is of course quite right to say that—and this was reinforced in the Constitutional Reform and Governance Act—certain duties and responsibilities do apply to civil servants.

House of Lords: Number of Members

Debate between Baroness Noakes and Lord True

Wednesday 16th September 2020 Lords Chamber

[Lord True (Con)]

My Lords, the voice of Wales is extraordinarily important, and it is well served in this House by some of the outstanding Members who come from that great Principality. The noble Lord makes a point of policy. The last coalition Government presented to your Lordships and the other place proposals for an elected House, but they did not at that time find favour.

[Baroness Noakes (Con)]

My Lords, last year, your Lordships’ House demonstrated that it was spectacularly out of step with the country as a whole over Brexit. Does the Minister agree that it is more important to remedy that than to focus on the numerical size of the House?

[Lord True (Con)]

My Lords, every Member of your Lordships’ House has the right to express a personal opinion, and long may we do so. However, it is important, as my noble friend says, that the House reflects on the risk of becoming out of step with public opinion on this great question.

EU Trade Agreement

Debate between Baroness Noakes and Lord True

Tuesday 8th September 2020 Lords Chamber

[Lord True (Con)]

My Lords, I completely reject the idea that the Government are imperilling the Good Friday agreement. I repeat what I said a minute or two ago: the peace process has an east-west as well as a north-south aspect, which the Government fully respect. The purpose of our approach is to protect peace in Northern Ireland and the Good Friday agreement.

[Baroness Noakes (Con)]

My Lords, does the Minister agree that it would be better if the noble Lords who are getting so excited about this just waited until the internal market Bill is published later this week?

[Lord True (Con)]

As usual, my noble friend makes a very important point. As I have already said, we will have a great opportunity to discuss the proposals.

David Frost

Debate between Baroness Noakes and Lord True

Tuesday 30th June 2020 Lords Chamber

[Lord True]

My Lords, I do not agree that there will be a difficulty. The announcement suggests that Mr Frost will take up his appointment around the end of August, and, as the noble Lord said, there will be a period of handover. Mr Frost will remain chief negotiator for the EU talks until agreement is reached, or until they end. That will remain his first priority. As I have already said, he will also be ready to answer to Select Committees of the House in that period.

[Baroness Noakes (Con)]

My Lords, does my noble friend agree that, when Mr Frost becomes a Peer, this House will be very lucky, because we will gain a new Member with huge experience—as my noble friend has outlined—and with complete dedication and commitment to the success of the UK outside the EU?

[Lord True]

My Lords, I do agree and I am very grateful, as I am sure Mr Frost will be, for what my noble friend said. It is striking that, right across the House, among those with different views, there has been a unanimous acceptance of Mr Frost’s abilities and calibre.

Business of the House

Debate between Baroness Noakes and Lord True

Wednesday 4th September 2019 Lords Chamber

[Baroness Noakes]

My Lords, I am not part of the Government; like my noble friend, I am a mere Back-Bencher. This is not a government Motion at all. Unless and until there is an agreement between the Front Benches, the existing rules will apply. The noble Baroness, Lady Smith, is trying to overrule the normal rules with her Motion, which is why we oppose it. We do not oppose the Bill; we oppose the Motion and, therefore, the way in which the procedures of our House are being subverted—not just in this instance, although we know that the motive for moving such a Motion is to achieve this particular Bill, but because it could do this House long-term harm. That is what I care about and what I know many of my colleagues care about.

[Lord True]

This is not a government-inspired matter. I am not grand enough to aspire to writing my memoirs but if I were ever to do so, history would show that the Government had very little to do with these proceedings, which result from the genuine anger on all sides of the House at the device being put forward. We hear all this stuff about how we must rush through this and that but is it not the case that this Parliament voted, and it is the law of the land, that we should leave the European Union and do so on 31 October? This has been debated ad nauseam. We are seeing a desperate attempt by a bunch of remainer ditchers to reverse not only the verdict of the people but the prior verdict of this Parliament. Is that not the real disgrace in these circumstances?

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[Lord True]

I have. The noble Lord is a little more fly than I expected. I thought that he might not have read it but I give him credit.

[Baroness Noakes]

We must remember that we are debating how the Bill is being handled, not the fact that it has been approved by a majority in the other place. Of course, when Bills come here with a majority from the other place, we do what we normally do: receive and scrutinise them. The purpose of the Motion before us is to limit the way in which we normally receive and scrutinise Bills from the other place, so we should be careful to ensure that we are comfortable with that. In particular, the Motion in the name of the noble Baroness, Lady Smith of Basildon, would introduce a guillotine Motion, which was discussed during the debate on an earlier Motion.

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[Baroness Noakes]

After first “Commons” to insert “, and only once current legal proceedings relating to prorogations in the Scottish courts have been concluded”.

[Baroness Noakes]

My Lords, Amendment 2E in the name of my noble friend Lord True was going to be moved by my noble friend Lord Forsyth. However, as our business has not progressed as quickly as we expected, he is on his way to catch the sleeper train to Scotland. I can tell that the House is disappointed that he is not taking part in dealing with this amendment.

I am pursuing what my noble friend Lord True started with the previous amendment: trying to find out how those who have tabled this Motion see the interaction between it and the proceedings taking place in the various courts mentioned. My noble friend Lord True dealt with the English court action. Amendment 2E deals with the proceedings relating to Prorogation in the Scottish courts.

The temporary interdict, as I think it is called in Scotland—those of us who learned our law elsewhere call it an injunction—was not granted. We had Lord Doherty’s judgment today. He said:

“This is political territory and decision making which cannot be measured against legal standards”.


He also said that accountability should rest with,

“parliament, and ultimately the electorate”.

From the point of view of those initial proceedings—this was in response to those taken by a number of MPs and noble Lords—that seems to be settled. However, as I understand it, there is a possibility of that decision being appealed.

Putting it more directly to the noble and learned Lord, Lord Goldsmith—who I believe is answering on the Front Bench at the moment—since the original action has now been settled against those seeking an interdict, if the decision is appealed and it is determined that Prorogation should not take place, does that affect how the Motion is put together? Given that many noble Lords said earlier today that they believed they were forced into this action because of the nature of Prorogation, it seems to me that the need for this Motion falls away if Prorogation falls away.

These amendments have been drafted to establish the interconnection between the Motion and whether Prorogation is allowed to remain in place or is defeated by the various legal actions. I am trying to find out Her Majesty’s Opposition’s position on this from the noble and learned Lord, Lord Goldsmith. I beg to move.

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[Baroness Noakes]

Leave out paragraph (1) and insert—

“(1) Standing Order 40(4) to 40(9) (Arrangements of the Order Paper) be dispensed with in relation to any bill sent from the House of Commons relating to the United Kingdom’s exit from the European Union.”

[Baroness Noakes]

My noble friend Lord True is detained elsewhere at the moment, but I will not disappoint noble Lords by not allowing the House to hear about Amendment 2J. We are moving on to amendments to paragraph (1) of the Motion in the name of the noble Baroness, Lady Smith, so noble Lords may wish to note that we are making progress—we have got past the initial preamble to the Motion and are now on paragraph (1).

Paragraph (1) of the Motion provides that,

“Standing Order 40(3) to 40(9) … be dispensed with”,

to allow proceedings on the Bill to be handled. Amendment 2J suggests removing only Standing Order 40(4) to 40(9), leaving Standing Order 40(3) extant. The purpose of tabling the amendment is to explore with the mover of the Motion why the quite draconian suspension of Standing Orders, which have served this House very well, is needed in this case. Standing Order 40 has been in our Standing Orders since 1954.

Standing Order 40(3) says:

“Subject to paragraph (1), notices relating to the Business of the House and to the Chairman of Committees’ Business, if he so desires, shall have priority over other Public Business”.


Standing Order 40(1) says:

“Oral Questions shall be entered before other business”.


The Motion in the name of the noble Baroness, Lady Smith, would remove the provision about notices relating to private business and the Chairman of Committees, if he so desired, being entered before public business—in other words, before handling any Bill that came. We do not think that a case has been made for removing this important part of our Standing Orders—certainly, no argument has been put for any part of the Motion.

We believe that the Standing Orders are an important part of the way this House operates and has operated well over many years. We have them to ensure that we know how business will be conducted, so any suggestion that we should remove or suspend any part of our Standing Orders should be taken seriously by your Lordships’ House, because we would be overturning many years of tradition. The purpose of the amendment is, as I said, to reinstate Standing Order 40(3), because we believe that it is important. I beg to move.

--- Later in debate ---

[Baroness Noakes]

Leave out paragraph (1) and insert—

“(1) Standing Order 40(3) and 40(5) to 40(9) (Arrangements of the Order Paper) be dispensed with in relation to any bill sent from the House of Commons relating to the United Kingdom’s exit from the European Union.”

[Baroness Noakes]

My Lords, I had already arranged with my noble friend Lord True that I would speak to Amendment 2K. It is similar to Amendment 2J, which I moved on behalf my noble friend. It relates again to Standing Order 40. Paragraph 1 of the Motion tabled by the noble Baroness, Lady Smith, dispenses with Standing Order 40(3) to 40(9). This amendment would dispense with Standing Order 40(3) and 40(5) to 40(9) but would leave in place Standing Order 40(4), which says:

“On all sitting days except Thursdays, notices and orders relating to Public Bills, Measures, Affirmative Instruments and reports from Select Committees of the House shall have precedence over other notices and orders save the foregoing”.


As I said when I moved the previous amendment, we should play around with Standing Orders only when it is absolutely necessary. I do not think that we had a convincing explanation from the noble and learned Lord, Lord Goldsmith, as to why these parts of Standing Order 40 have been chosen to be dispensed with to speed up the Bill that has come from the other place.

Standing Order 40(4) says that,

“On all sitting days except Thursdays”,

these notices and orders are important. Of course, the Motion relates only to Thursday and Friday, which is not a normal sitting day. It is open to question why the preparers of this Motion have decided to eliminate Standing Order 40(4). We should override Standing Orders, which are there to help us to do business efficiently and properly on a regular basis, only when we completely understand why they are being removed. Amendment 2K is designed to ensure that Standing Order 40(4) remains intact despite the Motion proposed by the noble Baroness, Lady Smith of Basildon. I beg to move.

Business of the House

Debate between Baroness Noakes and Lord True

Thursday 4th April 2019 Lords Chamber

[Baroness Noakes]

I thank my noble friend for that. I had reached the end of reading through Standing Order 46, which is an important foundational part of our procedures. I remind noble Lords that it has been in existence since 1715. It has served us well for more than 200 years, so we should be very careful about tinkering with it. It is the case, in many instances, that those rules can be modified if noble Lords agree. It is usually done through the usual channels, in a way that achieves consensus. That has not been the case on this occasion. It is nearly always done so that there is a minimum of two days. I have been involved in a number of bits of legislation that have been done on an accelerated basis, but I have never seen one rammed through in one day like this.

I have never seen a Bill not leave the other place until just before midnight but be on the Order Paper here for all stages the following day. The noble Baroness, Lady Hayter, tabled her Motion—in effect, to take over the procedures of the House to do it in one day—only yesterday. Many noble Lords will not even have seen that until they got today’s papers. This is all highly irregular and is working against the ability of this House to scrutinise this legislation properly.

[Lord True]

I was not allowed to respond to the debate in which I spoke about this subject. The noble Lords, Lord Empey and Lord Strathclyde, made a sensible and constructive point: instead of trying to push this through it should be remitted to the usual channels. As many noble Lords on all sides have said, we could do this in the normal way for accelerated Bills: a Second Reading now and Committee another day. Why will the Opposition Front Bench not agree to that?

[Baroness Noakes]

My noble friend makes very good points. I hope that the Front Bench opposite is reflecting on them.

The House is being asked to handle this Bill on a one-day basis and, in effect, tear up the rules under which we normally consider legislation. This has led to a speakers’ list being closed before this business Motion is even finished. This Motion was not available to noble Lords until they came in this morning, so some will not have had the opportunity to put their names down to speak at Second Reading.