Procurement Bill [HL]

Debate between Baroness Smith of Newnham and Baroness Noakes

Committee stage
Monday 18th July 2022 Grand Committee

[Baroness Noakes (Con)]

My Lords, I have two small amendments in this group, Amendments 330 and 332. I must say that this group contains far too many issues to be debated effectively. My own are minor, so I did not degroup them, but I hope that in future other noble Lords will exercise their right to degroup so that we have sensible groupings to enable a proper Committee debate. I will probably get into trouble with my Chief Whip for encouraging noble Lords in this direction, because I think there is a view that large groupings are more efficient. However, I do not believe that; I believe in effective scrutiny in your Lordships’ House.

Amendment 330 probes the relationship between the mandatory exclusion of suppliers for improper behaviour in Clause 30 and the discretionary exclusion found in paragraph 14 of Schedule 7. I do not understand why the Bill has to have improper behaviour as an exclusion ground dealt with in two places. The definition of “improper behaviour” is virtually identical in each case, and they certainly seem to be aimed at the same behaviour. The processes are very similar, with rights given to suppliers in both cases, and they are both aimed at exclusion decisions. There are wording differences between the two parts of the Bill, but I cannot see anything of substance involved. It just looks as if two parliamentary draftsmen have been involved in different bits of the Bill and they have not known what was going on in the other bit.

Schedule 7 requires only that the decision-maker—which is usually the contracting authority, as in Clause 30—“considers” that there is improper behaviour, while Clause 30 requires a determination. However, in this context, I cannot believe that that is a distinction with any real difference attached to it. The main difference of substance is that Clause 30 results in mandatory exclusion, while paragraph 14 of Schedule 7 does not necessarily lead to exclusion. I hope that my noble friend the Minister can explain the subtleties of why improper behaviour has been dealt with in this way. My own view is that it would be easier to understand if Clause 30 were placed in the Schedules 6 and 7 structure of the Bill, since it deals with exclusion, and could have options of mandatory or discretionary exclusion. I certainly look forward to hearing what my noble friend the Minister has to say on that.

Amendment 332 is slightly different; it concerns paragraph 16 of Schedule 7, which itself sets out exclusions from the discretionary exclusions in Schedule 7. Under paragraph 16(4), there are four exclusions from some of the Schedule 7 things which have happened before the schedule came into force. It is my understanding that the existing procurement rules already contain three of the grounds for exclusion. So it does not seem logical that, when we shift to this new Procurement Bill, we disregard things that happened in the past that were exclusion grounds because they happened before the Act came into force—it seems to be an unnecessary discontinuity.

I believe that the new ground is “national security”, under paragraph 16(4)(d). For that, it is probably reasonable to disregard behaviour that occurred prior to the Act coming into force. I invite my noble friend the Minister to explain the logic behind paragraph 16(4).

[Baroness Smith of Newnham (LD)]

I will speak to Amendment 353, to which I am a co-signatory, and in passing to Amendment 331. Perhaps surprisingly, my first comment will be to agree with the noble Baroness, Lady Noakes. As we were listening to the various interventions and the introduction of various amendments, my sense was that we were trying to debate too many things in one group. In particular, when I listened to the noble Baroness, Lady Boycott, I thought that hers were very interesting amendments but that they were not really related to some of the issues associated with modern slavery, genocide and human rights that we were thinking about. I would also like to the irritate the Whips by suggesting that a little more degrouping might be beneficial in future.

The noble Baroness, Lady Stroud, introduced Amendment 353 in considerable detail, and my friend, the noble Lord, Lord Alton, then elaborated on it further. At this point, I do not want to go into further detail but to press the Minister on whether the Government would not see that it is appropriate to extend what the Department of Health and Social Care has done with the Health and Social Care Act to ensure that there is transparency in supply chains and that we do everything possible to ensure that genocide and modern slavery are excluded. Other noble Lords have provided the reasons why that is so important. I would hope to give the Minister plenty of time in which to respond.

Health and Care Bill

Debate between Baroness Smith of Newnham and Baroness Noakes

Lords Hansard _ Part 1 & Report stage
Wednesday 16th March 2022 Lords Chamber

[Baroness Noakes (Con)]

My Lords, ordinarily I would not support a novel procedure which overrode the precedence of the ways in which we normally do business and in which the Government expect to direct how business is taken in both Houses of Parliament. But I have been increasingly concerned that the Private Member’s Bill processes, both here and in the other place, simply do not work. They do not work for controversial Bills. It is simple to thwart the progress of a controversial Bill both here and in another place—but particularly so in this House through the mechanisms which we have seen used.

This issue is so important: it is clear that there is strong body of opinion within the British public wanting to see this issue addressed in some way. We must find parliamentary time to make a proper decision on it. I accept what the noble Lord, Lord Hunt, says about the unusual nature of a Minister having to lay a draft Bill which is not government business. But sometimes things are so important that we must find practical ways through them. I believe that my noble friend’s amendment is a practical way through a very difficult problem, and I urge all noble Lords on my Benches to ignore the Whip.

[Baroness Smith of Newnham (LD)]

My Lords, in Committee, I asked whether the Minister—I think the noble Lord, Lord Kamall, was responding on that occasion—had thought about giving parliamentary time to the Private Member’s Bill. The proponents of the current amendment are suggesting that this is not about the Government bringing forward a piece of legislation, even though—as the noble and learned Baroness, Lady Butler-Sloss, pointed out—that is exactly what the amendment says. If the intention of the amendment is to request parliamentary time—and we really are looking only at proposed new subsection (2)(b)—could the Minister, in replying, consider whether parliamentary time could be given to the issue without damaging neutrality in any way? The amendment, as drafted, would require the Government to bring forward legislation in favour of assisted dying. An amendment which gives parliamentary time to the issue would be very different.

Trade Bill

Debate between Baroness Smith of Newnham and Baroness Noakes

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Thursday 8th October 2020 Grand Committee

[Baroness Smith of Newnham (LD) [V]]

My Lords, I support Amendment 35. One of my noble friends has just sent me a message to say that I was not muted and that Members could hear me cough and laugh. I apologise. I knew that I was not muted. I am not present in person today because, while sitting through last week’s debate in Grand Committee, I started coughing. Lest I got into trouble in the current Covid circumstances, I thought that I should self-isolate. I have since been tested and my cough is nothing to do with Covid—but it was too late to attend in person today.

In Committee last week, the Minister said that he did not draw a distinction between negotiating objectives and a negotiating mandate. I think there is a huge difference between them. Objectives are something which the Government might set themselves. The Government might wish to achieve them with or without the support of Parliament. A mandate suggests something rather narrower and that would be explicit in Amendment 35.

Clearly there is a question over the royal prerogative—whether Parliament should be seeking to constrain the Government. But, as the noble Baroness, Lady Finlay of Llandaff, pointed out, it should not be used by Ministers as a way of precluding the role of Parliaments.

The noble Lord, Lord Lansley, raised some concerns about a mandating approach. Amendment 35 has two parts. The first is about negotiating objectives. Subsection (3) is about becoming a signatory to a free trade agreement. I hope that the Government might consider the two parts separately. I am not expecting the Minister necessarily to accept that Parliament should be mandating the Government’s negotiating objectives—although I would support them doing so. Could the Minister address the two issues separately, because mandating and approval are clearly rather separate issues?

A month ago in Grand Committee, we debated treaty scrutiny on the basis of three reports from your Lordships’ House. On that occasion, I had the honour of speaking immediately after the noble Baroness, Lady Noakes. She expressed considerable concern about the role of Parliament and suggested that,

“the three reports being debated show that there is an insatiable beast lurking in the committees of your Lordships’ House. This beast wants more information and more involvement on more aspects of treaty activity.”—[Official Report, 7/9/20; col. GC 123.]

I do not believe that your Lordships’ committees, or the House as a whole, or the House of Commons, are “beasts”, but I do believe that both Houses of Parliament need sufficient information to be able to scrutinise treaties. It is also appropriate for us to have sight of negotiating objectives before the Government start to negotiate. As various noble Lords have already pointed out, the scope of trade agreements is extensive. The idea that Ministers can hide behind the royal prerogative is not appropriate in the 21st century.

These are huge issues. Parliament needs a role. As my noble friend Lord Purvis of Tweed outlined in considerable detail, the European Parliament has a significant role in scrutinising and approving treaties. Now that the United Kingdom has left the European Union, scrutiny is down to Westminster. Surely we should be taking on that role. The amendments in this group—particularly Amendment 35—open the way for Parliament to do that. It is not a power grab, as I suspect the noble Baroness, Lady Noakes, is about to suggest once again, but a way of ensuring that this parliamentary democracy is able to act as such. The Government should at least look seriously at these amendments.

[Baroness Noakes (Con)]

My Lords, it is indeed a pleasure to follow the noble Baroness, Lady Smith of Newnham, and to be reminded of a pleasant afternoon we spent last month debating reports from the Constitution Committee and the EU Committee on the handling of treaties. I think it would be helpful to remind ourselves of some of the things that were in those reports. I have to say that that afternoon I was, as I shall be today, no doubt, the only participant supporting the Government, and the rest of the participants in that debate were repeating lines we have heard already and will continue to hear on this issue.

The Constitution Committee looked in particular at the European Parliament processes which were referred to by the noble Lord, Lord Purvis of Tweed, and my noble friend Lady McIntosh, and it recommended not replicating them. There was a very clear finding that we should not replicate them, and the committee pointed out the differences with the European Parliament as a supranational Parliament. The noble Lord, Lord Purvis of Tweed, earlier referred to Jack Straw in relation to the CRaG Act. Noble Lords might be interested that he gave evidence to the Constitution Committee and advised it that he thought that copying the European Parliament’s processes was a rabbit hole down which we should not go.

The other important aspect of the Constitution Committee’s findings was that we should not fetter the royal prerogative and that some of the processes that have been put forward by noble Lords, and that have been put forward again today, do indeed fetter the royal prerogative, as my noble friend Lord Lansley said. That applies in particular to a role in negotiating objectives. The committee did not recommend that Parliament should fetter the royal prerogative in that way.

That debate and these debates come back to a lack of happiness among noble Lords with the CRaG processes. I remind noble Lords that the CRaG processes were not invented when the CRaG Bill was brought forward by the last Labour Government. Those processes were based on the Ponsonby rule, which has existed for a very long time and served Parliament extremely well on the ratification of international treaties. The CRaG Act effectively codified those processes into law and recognised the role that Parliament should have, which is at the end of the process once the royal prerogative has been used to negotiate treaties.

There has been a lot of talk about whether 21 days is enough. We have to remember that it is 21 sitting days, so that would be a minimum of five weeks and sometimes quite a lot longer, so this is not a minimalist period for parliamentary committees to go about doing their work, and I believe that on the whole that has proved adequate for scrutiny take place.

Coming on to whether extra time is needed, which is in Amendment 63 in the name of my noble friend Lord Lansley, we have to remember that CRaG allows the other place not to ratify a treaty—so, de facto, the other place already in effect has the power to require extra time by the simple act of denying approval of the ratification. That can be done an infinite number of times. The other place does not have the power to make changes to treaties but does have the power simply to refuse ratification, and that can be used effectively if the Government were perceived to be acting reasonably. As my noble friend Lord Lansley said, the Government have said that they will respond where possible to any reasonable request for further time, and I think that that is a perfectly reasonable position for us to be in.

I will comment on only one other amendment in this group, Amendment 98, which seems to be another opportunity for Parliament to disapprove of a no-deal Brexit by denying this Act to come into effect if it does not approve a no-deal Brexit. As we know, the Government do not want a no-deal Brexit, but we may not achieve a free trade agreement with the EU, and if we have to exit on a no-deal basis, that is what we have to do. Had this amendment gone into the Bill we were considering a couple of years ago, it might have had some purpose to it for those not of a Brexit persuasion to have a last gasp at trying to keep us in the EU. However, with the current electoral result in the other place, with a large majority that was elected on a clear campaign promise to get Brexit done, I cannot believe that Amendment 98 has any real place in the Bill, and I hope very much that the noble Lord will not press it if it comes back on Report.

European Union (Withdrawal) (No. 5) Bill

Debate between Baroness Smith of Newnham and Baroness Noakes

Committee: 1st sitting (Hansard): House of Lords
Monday 8th April 2019 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I support my noble friend’s amendment for two reasons. First, this remains a wretched Bill, taking power away from the Government and their ability to use the royal prerogative. Therefore, I would support any restriction on that measure being put into the Bill. Secondly, I support the points made by my noble friend in respect of the financial impact of different variants of a delay in leaving the EU. The fact that the Bill was not treated as a money Bill in the other place is beyond my comprehension, as is the fact that my noble friend was unable to table an amendment explicitly calling for an impact assessment or something else—but the ways of the Public Bill Office are strange on occasion. I support my noble friend.

[Baroness Smith of Newnham (LD)]

My Lords, there may be some flaws in the Bill—hence the support from these Benches for some of the other amendments. However, we agree with the noble Lord, Lord Pannick, that this amendment is unnecessary and that it should be for the other place to set a date.