Procurement Bill [HL]

Lord Aberdare Excerpts

2nd reading
Wednesday 25th May 2022 Lords Chamber

[Lord Aberdare (CB)]

My Lords, my interest in this large and complex Bill relates to how it will affect the ability of small businesses, particularly in sectors such as construction and engineering services, to access public procurement opportunities. Of course, this is one of the Bill’s stated policy objectives.

The six principles on which the Bill is based are welcomed by small businesses in these sectors. However, as ever, the proof of the pudding will be in the eating—will the Bill deliver what it sets out to do, and will it foster the sorts of good practices and professionalism that the noble Lord, Lord Maude, tellingly emphasised from his deep experience? I was also struck by a phrase used by the noble Baroness, Lady Brinton, asking how the arrangements in the Bill will actually work “in practice”; that will be the nub of the Bill’s success. Many of the measures required to create the new public procurement culture envisaged in the Transforming Public Procurement Green Paper do not feature in the Bill itself; presumably, they will be introduced in subsequent secondary legislation.

The importance of procurement in bringing about needed culture change in the construction sector is recognised in the levelling-up department’s recent Guidance on Collaborative Procurement for Design and Construction to Support Building Safety and in the Cabinet Office’s Construction Playbook. One of my concerns during the passage of the Building Safety Bill was about how such guidance would be put into practice, so I hope to hear from the Minister what regulation, oversight and monitoring mechanisms are planned to ensure that this Procurement Bill achieves its policy goals. The Green Paper speaks of a “Procurement Review Unit”; I wonder what role that will play and why it does not appear in the Bill.

The new system proposed in the Green Paper and embodied in the Bill introduces many new approaches and terminologies that small businesses already finding it difficult to access public procurement may find it hard to get to grips with. The Green Paper also speaks of a

“programme of learning and development to meet the varying needs of stakeholders”

during the six-month lead-in period. Can the Minister confirm that this will include access to relevant training and support for small businesses seeking to learn the rules of the game in order to access public contracts? What plans are there to promote the early engagement of contractors and their supply chains in the tendering process? What plans are there for the pre-market engagement of civil servants so that they can gain an understanding of emerging trends and technologies before going to tender? Clause 17’s requirement for contracting authorities to consider dividing procurements into “lots” is welcome for small businesses, but what are the levers to ensure that this actually happens, and what are the remedies if it does not?

Small businesses often need to use commercial framework providers to access public procurement. This can add significant costs, often 10% or more, to their market prices, and these costs are not entirely visible to them. So how do the Government plan to ensure transparency in the fees charged by such providers? Will the

“central register of commercial tools”

mentioned in the Green Paper require publication of these fees and charges so that SMEs that use such tools can understand the true costs of doing so? How will the Bill help to deliver the gold standard recommendations of Professor David Mosey’s review of public sector construction frameworks?

As the noble Lord, Lord Mendelsohn, mentioned earlier, onerous and unfair contract terms and payment practices are another significant barrier to small businesses accessing public sector contracts. The Green Paper included proposals to give small businesses at all levels in the supply chain

“better access to contracting authorities to expose payment delays.”

It also proposed that public bodies look at the payment performance of any supplier in a public sector contract supply chain.

The Government’s response confirmed their intention to introduce these proposals into legislation, as does the Bill’s impact assessment. Can the Minister confirm that this is still the plan and how it will be implemented? Like the noble Lord, Lord Mendelsohn, I welcome the clauses in the Bill which apparently extend 30-day payment terms right down the supply chain. However, prompt payment initiatives have a history of ineffectiveness, so I would like to know how the Minister plans to ensure that this does not happen this time and what sanctions may be imposed on late payers.

SMEs are often pioneers in their sector: innovating, training and providing real social value impact. As we have heard, social value is another important aspect of the Green Paper which has not surfaced in the Bill. I am glad to say that Wales is leading the way with its Draft Social Partnership and Public Procurement (Wales) Bill. SMEs may be precluded from such innovation if they are not engaged until after tenders have been awarded at the upper tiers of the supply chain. The Bill’s emphasis on a value-led, rather than a price-led, approach to procurement—MAT rather than MEAT—is welcome, as long as it becomes more than a neat new acronym. Public sector contracting authorities need to move to awarding contracts at the price that maximises innovation, investment and training, thereby avoiding the scenarios of paying twice or squeezing the margins of suppliers, which ultimately result in behaviours highlighted by the building safety crisis, whereby lowest cost has been prioritised over quality and safety outcomes.

Much of what I have said relates to measures not specifically covered in the Bill as it stands, so I hope that the Minister will tell us what plans he has to publish draft regulations which address some of these areas in the course of the Bill’s passage. I welcome the Bill and I hope that the Minister will be able to give some reassurance that the proposed new system will include the necessary regulation, oversight and monitoring mechanisms, not just to enable small businesses to play a much larger and more valuable part in future contracts, including in construction, but to ensure that they do.

Wellbeing of Future Generations Bill [HL]

Lord Aberdare Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Friday 13th March 2020 Lords Chamber

[Lord Aberdare (CB)]

My Lords, I declare my interest as a trustee of the National Library of Wales, one of 44 bodies covered by the Welsh Act on which today’s Bill is modelled. However, today I am speaking from a purely personal standpoint. Since the passage of the Welsh Act, the library has been seeking to identify how it can contribute to each of the seven well-being goals for Wales, with active encouragement, to put it mildly, from the future generations commissioner. After some initial scepticism, the library has found the process useful in thinking about its impact on and relevance to future generations—not entirely an obvious concept for a library. While the outcomes of this process have been relatively modest so far, they have begun to feed into the library’s planning process, with each of its strategic objectives being mapped against the Act’s seven well-being goals and published in its first well-being statement. This has been an incremental, iterative and collaborative learning process, as indeed I think it should be.

I very much welcome the aims of today’s Bill, which has been powerfully promoted by my noble friend Lord Bird and, indeed, strongly supported by many other noble Lords who have spoken. I would like its provisions to be as well designed as possible in order to pursue the objectives and ambitious aims that include quite substantial culture change, so I apologise for the fact that my remarks will focus on the practicalities of making progress with the Bill. For me, the heart of the Bill and its most important and valuable feature is the establishment of a future generations commissioner, with the central responsibilities of promoting its aims, acting as guardian of the interests of future generations, and pushing the bodies concerned to fulfil their obligations.

That said, the Bill as drafted seems rather more ambitious than perhaps it needs to be in terms of the range of organisations it covers and the duties it places on them, and in its administrative structures, including a whole range of assemblies and bodies and committees. Whereas the Welsh Act applies to 44 bodies, this Bill would place duties not only on all UK public bodies but on companies. I wonder if my noble friend has made any estimate of how many bodies in all he expects will have to respond to the Bill. I would urge him to be open to considering a rather more gradualist approach as the Bill proceeds, with more circumscribed initial coverage focused on raising awareness, building support and encouraging action spurred by the future generations commissioner as far as possible through the use of collaboration and carrots but with some sticks in reserve.

I applaud the aims and spirit of the Bill. I wish my noble friend success in carrying it forward and, I hope, in persuading the Government to support it. But I believe it would benefit from substantial simplification and streamlining. Perhaps he might consider working with some of the noble Lords speaking today—maybe even the Minister—to produce amendments for Committee that would maximise its chances of making progress rather than getting mired in detail and possibly even raising unnecessary resistance. He may find it advantageous to pursue a more softly, softly approach to bring about the vital changes of culture and mindset that are required, building on the practical experience gained in Wales and elsewhere.

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

Lord Aberdare Excerpts

Report stage (Hansard): House of Lords
Friday 15th March 2019 Lords Chamber

[Lord Strathclyde]

My Lords, may I just check to which amendment my noble friend is speaking? Is it Amendment 15, in the name of my noble friend Lord Cormack, or Amendment 16 in his own name?

[Noble Lords]

Amendment 14!

[Lord Strathclyde]

All right. Thank you very much.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Lord Aberdare Excerpts

Tuesday 5th November 2013 Lords Chamber

[Lord Aberdare (CB)]

My Lords, I have listened to the whole debate thus far this afternoon and I confess that I, too, remain baffled by the logic behind this part of the Bill. It is something of a relief to find that I am in the distinguished company of others such as my noble friend Lord Kerr of Kinlochard, with whose remarks I very much agreed. That is despite the efforts of the Minister to explain the logic. As I understand it, the problem is that Ministers are not clear whom consultant lobbyists represent. I find that astonishing. If that is so, why not ask?

The noble Baroness, Lady Hayter, told us that two out of 988 meetings with Ministers at BIS were with consultant lobbyists, so that is not a huge number. One of the briefings that we have had from the professional lobbying bodies—from the PRCA—tells us that rarely do consultancies speak directly to Ministers on behalf of clients, especially without the client being present, in which case I imagine that it is fairly clear for whom they are speaking. Furthermore, speaking to Permanent Secretaries is pretty much unheard of, as has been confirmed by a number of former Permanent Secretaries in your Lordships’ House. In addition, the professional bodies tell us that their estimate of the number of organisations likely to have to sign up is around 100. Therefore, I fail to understand how this is likely to improve transparency. Indeed, it seems to me that there is a real risk that it could reduce the incentive to sign up to some of the voluntary registers which exist and which are also linked to codes of good practice.

The Bill as it stands seems to fall between two stools, and I am not sure which one to rest on in order to form a view on these amendments. It seems to me that if we are to have a register, it has to be a broader register that on the one hand covers a wider range of people who are undertaking lobbying and on the other hand covers a wider range of people who are being lobbied. I agree that if we are to have a register, it should extend to many of the bodies and individuals that other noble Lords have mentioned.

However, if we are not going to do that, it seems an incredibly expensive and elaborate approach to set up a register and a registrar if we are going to cover just 100 consultant lobbying firms, together with Permanent Secretaries, who are never lobbied by them, and Ministers, who are rarely lobbied by them. I would be much more attracted by the sort of approach that the noble Lord, Lord Norton of Louth, mentioned at Second Reading, in which the reporting system on the receiving end is improved to make sure that it records those particular interactions.

Therefore, I confess that I am totally confused. I should be very happy to support some of these amendments if I thought that that was what the Bill was going to do. If it is not, then I do not know at all what the Bill is trying to do and I hope that I will receive further enlightenment as I sit here for longer.

[Lord Martin of Springburn (CB)]

My Lords, if I understood the noble Lord, Lord Tyler, correctly, he feels that more restraint should be put on special advisers, and I agree with him. I have already said in this House that it was absolutely appalling that in the previous Government the Prime Minister’s special adviser went about the business of blackening, or seeking to blacken, the names of the family of a member of the Cabinet. That was absolutely disgraceful. He then went on to have the absolute brass neck to write a book. When he was interviewed, he said, “Well, you see, when I left I did not get any money, so I have to get some money somewhere”. I say: welcome to the real world. I had constituents who were in employment for less than two years and they did not get any redundancy money, but they did not seek to brag about the bad things that they did.

I mention that because this individual was there on taxpayers’ money. To my shame as a practising Catholic, he went on to work for an organisation called CAFOD. Fellow Catholics, like me, are expected to give to missions on what is known as Mission Sunday, and they do so very generously. The poorest of the poor set aside funds that they have worked hard for to give to that organisation, and it really amazes me that someone gave that individual a senior job there. I say to the noble Lord, Lord Tyler, that I feel strongly that if these people are employed by the Government and paid for by the taxpayer, they should be accountable in every possible way.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Lord Aberdare Excerpts

Tuesday 5th November 2013 Lords Chamber

[Lord Campbell-Savours]

My Lords, I support wholeheartedly the amendment spoken to by the noble Lord, Lord Norton of Louth, although I have slight reservations as it is debatable whether PPSs should be included.

I shall speak to Amendments 68 and 69, which stand in my name in this group. Amendment 68 is to press Ministers on whether they feel the Bill adequately covers the possibility that lobbyists may, for whatever reason, seek to hide the name of the recipient of the payment. There is a reference in Schedule 1, Part 2 to the beneficiaries of payments, but I do not think it is absolutely clear what the intention is there. A person lobbying may be acting on behalf of another whose identity as a lobbyist is not to be revealed, but where the person whose name or company name is not to be revealed is the recipient of the financial consideration. There may be circumstances where a lobbyist has been subcontracted by another lobbyist to carry out work where the subcontractor has an expertise which the main contractor lacks, but where the main contractor does not wish to lose their client account due to a lack of expertise. There may be circumstances where a lobbyist subcontracts the work for a particular client to avoid revealing to another client that the main contractor lobbyist has other clients in the same commercial sector. There may be circumstances where a lobbyist hires a subcontractor for Client A to avoid revealing to his or her client that he is also representing Client B, whose interests are diametrically opposed. These are but a few scenarios that could include the avoidance of registrar penalties, potential disqualification as a registered person or even matters relating to liability to the Inland Revenue.

Amendment 69 brings us to the heart of the legislation. It dominated debate in the Commons. It would require the name of the person lobbied and the subject of the lobbying, which we have been dealing with extensively this evening. It follows broadly the case made by Graham Allen MP, chair of Political and Constitutional Reform Committee, in his Amendment 100 during Report stage in the Commons. His committee had recommended:

“The information that the registrar requires to be listed should be expanded to include the subject matter and purpose of the lobbying, when this is not already clear from a company’s name. To be clear, this should not involve the disclosure of detailed information about the content of the meeting—just a broad outline of the subject matter and the intended outcome”.

The Government’s response to that recommendation is just not credible. It talks of the availability of information, which I raised on an earlier amendment on ministerial diaries. We know that that system does not work because it is a congested system. The truth is that we have a huge gap in transparency and, sadly, the Government are doing very little to bridge it. The register is useless if all it does is list a few names that are already on the lists of the professional bodies. We need real hard information on who is lobbying, when they lobby, on what issue and on whose account.

[Lord Aberdare (CB)]

My Lords, I support Amendment 115, tabled by the noble Lord, Lord Norton. If the Government are not willing to go for a comprehensive register covering a wider range of lobbyists and those who are lobbied than currently envisaged, this seems a much simpler and more sensible approach that will be cheaper for the public purse and for the relatively small number of consultancy companies that would otherwise have to bear the not-insignificant costs of the registration system.

[Lord Hardie (CB)]

My Lords, I welcomed the amendment of the noble Lord, Lord Tyler. The amendment of the noble Lord, Lord Norton of Louth, goes further and I welcome that even more. In Amendment 81 I go even further. Noble Lords will see that it would introduce a register of lobbying activities. It gives statutory effect to the welcome initiative of the Government in requiring Ministers and Permanent Secretaries to publish on a quarterly basis details of meetings they hold with external organisations. This statutory register would ensure that this practice continues under future Governments. It would also include details of lobbying activity submitted by lobbyists. The public would obtain from this register a clear picture of lobbying activity within any quarter.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

Lord Aberdare Excerpts

Tuesday 22nd October 2013 Lords Chamber

[Lord Aberdare (CB)]

My Lords, I will try to outline my thoughts on the Bill without going into too much detail since most of the points I wish to make have been made already and may well be made again. I will address Parts 1 and 2. I have no problem with the principles of the Bill. I believe that a register of lobbyists is important to ensure the openness and transparency of lobbying activity, and I also support the aim of Part 2 to take the big money out of politics, as we have heard it described. However, I have two broad concerns about the Bill as drafted. Does it risk going too far and actually taking the politics out of politics and will it achieve its laudable aims in a workable, effective and not too burdensome manner?

On Part 1, I start from the principle that lobbying is a vital part of our democratic system. I worked in IBM’s government relations departments in both the UK and the USA and was then a partner in a public affairs consultancy, so at times I engaged in lobbying myself. However, I, and perhaps other noble Lords, might not be able to contribute to debate on this Bill in an informed way if it were not for the lobbying efforts of numerous organisations interested in or concerned by it. It is important that lobbying should be open, transparent and above board. The system to achieve that should be clear, fair, workable, reasonably straightforward and comprehensive, so I have considerable questions about how the proposed register is to be set up.

First, why are only consultant lobbyists covered? What about in-house lobbyists, other corporate advisers such as management consultants, law firms and accountants, trade associations and other such representative bodies? Consultant lobbyists represent a very small proportion of total lobbying, perhaps not much more than 10%. In my experience they generally accompany their clients in lobbying situations, if they take part in them at all, and it is the client who has the most direct interaction with the person being lobbied. It is hard to see how the omission of the bulk of lobbyists and their activities from the register will achieve the aims of increasing transparency and public confidence.

Secondly, why does the Bill extend only to lobbying of Ministers and Permanent Secretaries? A huge amount of lobbying takes place at lower levels, including with special advisers, for example, both before and after any direct contacts with Ministers or Permanent Secretaries. Moreover, as we have heard, Ministers and Permanent Secretaries are already supposed to publish details of their meetings with external organisations. If the public need to know who those organisations represent, why could this information not just be added to those reports? After all, if Ministers or Permanent Secretaries do not know who the lobbyists they meet are representing, the lobbying effort seems unlikely to be effective. In this context, I was quite attracted by the proposal from the noble Lord, Lord Norton of Louth, about turning the whole thing around and looking at it from the point of view of the people being lobbied.

Although I welcome the evident desire of the Government to adopt a minimalist approach, I wonder if there is not a danger of ending up—and here I echo what the noble Baroness, Lady Pitkeathley, said about Part 2—with an overlarge sledgehammer to crack a small, though admittedly irritating, nut. If we are to have a register and a registrar should they not be a little more comprehensive in their coverage without, of course, imposing undue burdens on lobbyists or their employers? Perhaps something can be learnt from existing systems elsewhere. For example, I have heard the European Union system described, with some approval, as a “coerced voluntary register”.

Finally, should there not be some encouragement for lobbyists to sign up, preferably on a voluntary basis, to codes of conduct such as that of the Association of Professional Political Consultants, which has been in existence for some 20 years? Could the system not make some sort of allowance for lobbyists who show that they adhere to a recognised code of conduct, as was suggested by the noble Lord, Lord Tyler?

I find myself in a similar situation with Part 2. The aim may be worthy, but its implementation falls far short of being as clear, workable and proportionate as it should be. I have been very struck by the number of significant and reputable representative organisations expressing concern about this part of the Bill. To pick just a few, there are: the NCVO, with some 10,000 members; its Welsh equivalent, the WCVA, with more than 3,000 members; Bond, which represents 400 international development bodies; 13 faith groups; and the Commission on Civil Society and Democratic Engagement, chaired by the noble and right reverend Lord, Lord Harries, which was formed by some 50 very diverse third-sector organisations specifically in response to concerns about this Bill. Numerous bodies have added their voices to these concerns such as the CBI, Citizens Advice, the Countryside Alliance, the National Trust, the National Federation of Women’s Institutes and the Royal British Legion, to mention just a few. No doubt briefings are still coming in from further organisations as we speak. Then there is the Political and Constitutional Reform Committee in another place, the Joint Committee on Human Rights, your Lordships’ own Constitution Committee and even the Electoral Commission itself. Such a breadth of concern, with little or no countervailing opinion, should surely raise serious pause for thought.

The definition of “controlled expenditure”, even after the amendments made in another place to bring it more in line with the previously existing situation, remains complicated and unclear. One thing that is clear is that Clause 26, combined with Schedule 3, considerably extends the range of expenses covered, for example to include staff costs, if not even volunteer time, although I was reassured by what the noble Lord, Lord Phillips of Sudbury, said on that matter. While the scope of controlled expenditure is widened, the thresholds for registration to be necessary are significantly lowered in the Bill, by half in England, and more than half in Scotland, Wales and Northern Ireland. The limits on the maximum amounts that can be spent are also reduced, again by more than half. I have seen no rationale or justification for these reductions. Several organisations have said that the previous regime under PPERA was tolerable only because the thresholds and spending limits were sufficiently high not to affect the great majority of campaigns.

The reduced thresholds and limits are likely to bear down particularly hard on third-party organisations in Wales, Scotland and Northern Ireland. For example, no allowance is made for the fact that in Wales much of the material now classified as election material has to be produced in two languages, with significant extra costs. Nearly all organisations commenting on the Bill, including the Electoral Commission, believe that the Government’s estimates of the number of bodies likely to be affected are unrealistically low.

The rules on coalition campaigns, where each member of a coalition has to include the full amount of coalition expenditure as part of its own controllable expenses, seem likely to have a strongly discouraging effect on campaigns of this nature, although in most other respects they seem positively desirable, as well as effective. Given that charities are already regulated by the Charity Commission under charity law, which prohibits them campaigning on party-political issues, I can understand why the question of whether they should not be specifically excluded from coverage under this new system has been raised.

I will not go into questions of why the Bill was not subject to greater pre-legislative scrutiny and consultation, as it surely should have been—and indeed should still be—or why there is such an unseemly rush to get Part 2 in place before the next general election, so that all the third-party organisations newly brought within its scope will have to have their future campaigning plans in place as soon as next May, despite all the issues raised in today’s debate.

The Bill in its current form seems likely to represent a significant burden on organisations, many of them small, which could by no stretch of the imagination be regarded as the sort of big money that could realistically distort elections, and to drive a coach and horses through this Government’s claim to be committed to deregulation and the big society. Even worse than that, it could risk causing significant collateral damage to the workings of our civil society as a whole. I hope the Bill will emerge from your Lordships’ House with significant improvements so that it fulfils its worthwhile aims without such undesirable side effects.