Preparing for Extreme Risks (RARPC Report)

Lord Clement-Jones Excerpts

Thursday 12th January 2023 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, I express my own thanks to our chair, the noble Lord, Lord Arbuthnot, not only for his excellent introduction today but for his superb chairing of the committee, especially given that meetings had to be conducted remotely almost throughout. I support his thanks to our terrific staff and advisers, and to my fellow committee members for their stimulating company and insights.

I joined the committee encouraged by some of the writing of the noble Lord, Lord Rees, especially in his excellent book On the Future: Prospects for Humanity, in the hope and expectation that we would grapple with how best to anticipate and mitigate some of the extreme and existential risks we face in the UK, particularly those arising from new technologies such as artificial intelligence.

However, the fact is that, in risk terms, we have rarely been thinking beyond a two-year timeframe, let alone a parliamentary term, and we found that our system is completely deficient in assessing and planning for chronic or long-term risks and has a bias against low-likelihood, high-impact risks. In his evidence to us, the noble Lord, Lord Harris of Haringey, chair of the National Preparedness Commission, rightly questioned whether the current political system, with short parliamentary terms and ministerial postings, allows for the proper consideration of risk. Sir Patrick Vallance, who it is clear will be playing an important role in government reforms in this area, was even blunter, saying:

“If you take a two year outlook, you get the wrong answer.”


We discovered that it was not just generational risks where risk assessment and planning were inadequate, such as with climate change or AGI—artificial general intelligence—but that we failed even when it came to the medium term. As we have heard, the great irony is that, prior to the onset of Covid-19, the UK’s approach to risk assessment and management—as the Institute for Government pointed out in its report Managing Extreme Risks—was admired. It is clear, however, that there are both cultural and institutional flaws in planning, assessment, mitigation and prevention. The time is never right for expenditure on prevention and mitigation, as the noble Lord, Lord Rees, says—another plug for his book—in his new introduction.

The risks we face are changing. As we say in the report:

“Technological advances have raised the threat posed by the malicious deployment of technologies which could be used for good or ill, while traditional threats such as those from nuclear or chemical warfare remain.”


We also found that the Government’s risk assessment process through the NSRA looks at only discrete risks and is unable to encompass the complexity of risks facing the UK. It has failed to account for interconnected or cascading risks, which go far beyond the failure of one part of a system.

In his prologue to his book Apocalypse, How?, one of our witnesses, Sir Oliver Letwin, posits a national emergency where the internet goes down, electricity supply fails across the country and no analogue communications backup is available. Given the way that BT’s Digital Voice programme to replace copper telephone lines with fibre seems to be taking place without any assessment of the impact on national resilience, it looks like we are heading for an emergency of exactly that type. Robert Harris, author of The Second Sleep, illustrated this graphically in his evidence:

“Sophisticated societies do collapse. Every civilisation collapses. You cannot think of one that did not face some terrible crisis, partly because they became so sophisticated.”


We further found that the central government risk assessment process has developed a culture of secrecy that impedes thorough scrutiny, expert consultation and information sharing with key partners, as experience with Exercise Cygnus and the DHSC’s more recent report on learning Covid lessons are already showing.

I welcome a great deal of the Government’s response and the new resilience framework, particularly the adoption of the overarching three principles adumbrated by the noble Lord, Lord Arbuthnot, and action relating to local resilience forums and the voluntary sector—and, indeed, relating to the development of skills. But how will the resilience directorate and the new head of resilience be

“providing leadership for this system”?

It seems there will not be any teeth in terms of challenging lead government departments.

Then we have the lack of a statutory duty regarding critical national infrastructure threats, which could be the Achilles heel of our risk planning. How does this square with the commitment to deliver resilience standards in the private sector? What does action to “refresh” the NSRA mean? What methodology will be adopted? Why is there no commitment to looking more than five years out? These proposals all aim to ensure that we have a much better handle on the future. As Professor William MacAskill says in his recent book, What We Owe the Future, sacrifices can actually be win-wins for posterity. I hope the Treasury takes note.

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[Baroness Neville-Rolfe (Con)]

I always like to be the bearer of good news from the Dispatch Box.

We are going to be updating the risk register, as everybody has talked about. I cannot give an exact date, but I can say that we are working on these issues with energy. I am delighted to be working now in this area, and obviously very keen to make progress. I do not think that I can say anything today about the very important issue of powers, because I was on the Back Benches during all the Covid measures, so I very much understand the points that have been made. We have got a Covid inquiry that is taking place, and there has to be some sort of interaction between the Covid inquiry and what we do for the future.

I am very grateful to my noble friend Lord Arbuthnot for his positive comments on the resilience framework. I am pleased that he recognises elements of his committee’s recommendations within it—in fact, nearly all the recommendations were accepted in whole or in part. My noble friend rightly raised transparency and challenge. We set our commitment to both in the framework and are already working to embed the principles across my departments, and across others. As an example, the national risk register, when it is published in the coming months, will include more detailed risk information and guidance than previous iterations, and it follows the new classified version of the national security risk assessment.

Noble Lords will be pleased to know that the development of the latter involved a great deal of external challenge this time, and the NSRA is more robust as a result. My colleague the Chancellor of the Duchy of Lancaster will be chairing the next UK resilience forum in February—just one way in which we are incorporating more independent challenge and expertise from outside government. I hope that further work on resilience this year will demonstrate more progress, and we will update Parliament through our inaugural annual statement on resilience.

The noble Lord also raised the committee’s recommendation, as others did, for an office for preparedness and resilience, and the accountability issue was emphasised by the noble Lord, Lord Browne of Ladyton, who sadly had to slip away. It is a key factor of the framework and, while have not chosen to establish a new body, we are taking steps to address the spirit of the committee’s recommendations. We agree with the noble Baroness, Lady Brinton, on the need for culture change—a point that she rightly often makes—and that is already happening.

The strength and function at the centre of government build on the approach that we have got under way on things like procurement and infrastructure, and I am sure that it will lead to much better coherence and accountability in the resilience system. We are also strengthening the lead government department model of risk ownership and are establishing a sub-committee of the National Security Council to enable Ministers to focus on national resilience, because ministerial involvement is important in getting things effectively progressed. I need hardly say that the Government also agree with the report’s emphasis on training, conducting exercises and performing dummy runs as a fundamental part of our collective resilience.

We are not just going to carry on as before, as the noble Lord, Lord Berkeley, rather mischievously said, and I look forward to giving evidence to his Built Environment Committee on infrastructure next week and to discussing the improved way we now monitor the progress of hundreds of infrastructure projects.

I am sorry that it has been over a year since the committee’s report was published, but the Government, as I have already outlined, have taken a number of steps to address the points that were raised. It is worth reiterating three key themes. On finalising a new classified national security risk assessment, the changes were informed by recommendations from the committee, but also by an external review from the Royal Academy of Engineering in September 2021. The intervention of the noble Lord, Lord Mair, showed the importance of bringing in the engineers.

[Lord Clement-Jones (LD)]

My Lords, I apologise for interrupting the Minister but one of the key points is about the methodology adopted for the NSRA, and one of the key issues that appears to be emerging is that the Government do not seem to be committing to go beyond a five-year horizon. What assurance can the Minister give about the methodology that is going to be used, and whether we are going to be looking further into the future?

[Baroness Neville-Rolfe (Con)]

I think the noble Lord is right that the main focus is on the next five years, but I will perhaps come back to him to discuss that point further. It is clear from what I have been saying that we are looking at extreme risks, and they are not necessarily going to arrive tomorrow, so I understand and sympathise with the point he has made.

The second step is strengthening the crisis and resilience structures in the Cabinet Office with the creation, as I have said, of the resilience directorate and the COBRA unit. We are responsible for resilience planning and national crisis response, working closely with departments which have sectoral responsibilities. This includes identifying, planning and preparing for risks, and building capacity to respond effectively. The changes to how it is organised will help to ensure that the Government have the capacity and capability to respond to emergencies, which is obviously particularly important in the wake of Covid-19.

Thirdly, we are working to improve our resilience to chronic risks and vulnerabilities, such as climate change—which was emphasised by the noble Viscount, Lord Thurso—and artificial intelligence. We have recognised that this type of risk poses continuous challenges over time to communities, the economy and security, and requires a different type of response to more acute risks, such as flooding or terrorism.

The scale of the risks we face has required a new strategic approach to resilience. That is why we published the UK Government Resilience Framework in December, which previously had the working title of “national resilience strategy”, to respond to a point made by several noble Lords. It is a new strategy which is already being implemented across government. It reflects our ongoing commitment to resilience which we made in last year’s integrated review, and the new strategic approach will be reflected in further publications this year, with the refreshed national risk register, the updated biological security strategy, and the update to the integrated review itself, which has also been promised.

Procurement Bill [HL]

Lord Clement-Jones Excerpts

Report stage
Wednesday 30th November 2022 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords, forgive me; I thought I could move this amendment formally too. I try to find a sensible and reliable pathway through, as your Lordships know. I look forward to debating this group, which discusses the single digital platform and transparency.

Transparency has been central to the development of this Bill, and it should be noted that there is a significant extension to transparency under the regime. The publication of documents and notices that follow the award stage will allow interested parties to see how contracts are being implemented. While we have stated publicly that it was always the Government’s intention to create a central digital platform to host this data, we acknowledge the concerns raised by noble Lords during Committee around the importance of the online platform. Amendment 129 therefore creates a new duty requiring a Minister of the Crown to provide an online system for the purpose of publishing notices, documents and other information under this Act.

In addition, the duty requires that the platform has to be accessible to people with disabilities—a point we were debating on Monday—and provide access to procurement information that is published under the Act, free of charge. This means everyone will have access to public procurement data and can track contracts as they progress through the commercial lifecycle from tender to award and delivery. Citizens will be able to scrutinise contracting authority decisions; suppliers will be able to identify new opportunities to bid and collaborate; and buyers will be able to analyse the market and benchmark their performance against others, for example on their spend with SMEs.

In addition to the principal amendment, Amendment 132 is a technical amendment which removes an existing statutory power as this platform is expected to be delivered through common law powers. Since becoming the Minister responsible for this Bill, I have been keen to ensure that it strikes the right balance between transparency and not imposing undue burdens on contracting authorities. Contracting authorities will continue to be bound by the obligation to publish opportunities for all advertised procurements that are above a threshold of £12,000 for central government authorities or £30,000 for others. This will ensure that there is a high degree of transparency for SMEs, so that they can bid.

However, at the other end of the commercial process, the Bill introduces additional transparency requirements after the award of the contract. I have reflected on these, and Amendments 78, 80 and 104 all seek to raise the original threshold for the publication of contract key performance indicators, public contracts and modifications to a public contract from £2 million to £5 million. This will reduce the administrative requirements for contracting authorities while ensuring transparency of the public sector’s larger contracts. I am pleased to say that these amendments have been welcomed by the Local Government Association in the briefing note it published on 25 November.

I will turn to the other amendments tabled in this group in closing, having heard the points raised by noble Lords. Meanwhile, I beg to move Amendment 78.

[Lord Clement-Jones (LD)]

My Lords, I rise to speak to Amendment 130 to government Amendment 129. Many of us will be pleased that the Minister has decided to put the new online system for procurement information on the face of the Bill. At the same time, however, we need some assurance that it will be fit for purpose and achieve the objectives set for it, otherwise the Government seem to have carte blanche to construct whatever system they see fit to inflict on the vendor community, without any required standards or reporting duty. Let us face it: even the modest database under the Subsidy Control Act is subject to a form of reporting duty, and this system will be of far greater significance.

The amendment in my name and that of my noble friend Lord Fox is designed to provide assurance but in very simple terms. There would be the requirement for a report, first, on the performance standards expected and, secondly, on the standards achieved in the relevant period, including metrics on satisfaction and the accessibility experience of stakeholders. This is a modest proposal; how can the Minister possibly argue against it?

[Baroness Noakes (Con)]

My Lords, I support the single digital platform which is now covered by government Amendment 129 in this group, but I have one caveat. The benefits of the platform, in terms of efficiency—having all the procurement details in one place—will be undermined if contracting authorities are required also to publish tender information in other ways. That is what lies behind my Amendments 166 and 168 in this group. Like some of the amendments I spoke to on our first day in Committee, these have been suggested by the Local Government Association. I am grateful to my noble friend Lord Moylan for adding his name to them.

These amendments propose two additional repeals within Schedule 11, the repeal schedule. Subsections (4)(b) and (5) of Section 89 of the Transport Act 1985 require local authorities to issue notices of tender individually to anyone who has given written notice that they wish to be notified. Amendment 166 would repeal that, because it should no longer be necessary. Amendment 168 would repeal Regulations 4 and 5 of the Service Subsidy Agreements (Tendering) (England) Regulations 2002 so that information on tenders will no longer be required, for example, to be published locally, including in local newspapers.

I hope my noble friend will see these two amendments as supporting the importance of the digital platform. I also hope that she will be able to assure the House that the Government will ensure that later legislation will not be allowed to undermine the platform by adding new and additional requirements, once it is up and running.

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[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.

[Lord Clement-Jones (LD)]

What mechanism will there be for feedback from vendors and so on?

[Baroness Neville-Rolfe (Con)]

We have talked several times about the PRU and the role it will have in looking systematically at things. It seems to me that one of the main sources of information for it will be this online system. It has the merit of largely being an all-singing and all-dancing system. I will come on to my noble friend Lady Noakes’s amendment in a minute. I think, therefore, that this is going to work well, but if the noble Lord discovers in the fullness of time that it is not doing so, I am sure he will come back and ask the Cabinet Office what it is up to.

Amendments 166 and 168 in the names of my noble friends Lady Noakes and Lord Moylan have been tabled to remove provisions in two pieces of transport legislation, both relating to contracts for subsidised public passenger transport services. The first repeals two subsections from Section 89 of the Transport Act 1985—that is a long time ago—dealing with the obligation to invite tenders for such contracts. This change would remove the requirement to issue invitations to tender individually to anyone who has given a written notice requesting this. The second amendment revokes two regulations from the Service Subsidy Agreements (Tendering) (England) Regulations 2002, dealing with information to be published regarding accepted tenders and where no tenders are accepted. These amendments were raised in Committee and, while both rightly seek to reduce the burden on contracting authorities, there are further considerations for the Department for Transport.

Not all transport is covered by the Bill, and we have carved out certain public passenger transport services under Schedule 2. The Department for Transport is reviewing procurements that fall under this separate regime as part of its review of retained EU law and its legislation more widely. It is important that what we do in our schedules does not impinge on that review. We are therefore unable to accept my noble friend Lady Noakes’s repeals today, but I have asked my officials to work with the Department for Transport to see whether it is possible to sort this out and bring forward a government amendment in the Commons to address her concerns. In the light of those various assurances, I respectfully request that noble Lords do not press their amendments.

Procurement Bill [HL]

Lord Clement-Jones Excerpts

Committee stage
Monday 24th October 2022 Grand Committee

Moved by

[Lord Clement-Jones]

235ZA: Clause 40, page 25, line 16, at end insert—
“(c) if the contract is not included in a framework agreement.”

[Lord Clement-Jones (LD)]

My Lords, I would be very happy if the Minister introduced my amendment, but in moving it I will also speak to Amendment 243A and Clause 40 stand part. My noble friend Lord Fox will speak to other Liberal Democrat amendments in this group that are in the names of my noble friends Lord Wallace and Lady Brinton. I know that my noble friend Lord Fox has congratulated the Minister already but it is the first time that I have spoken since I saw her on the Back Benches in our previous proceedings. I must congratulate her on her seamless move to the Front Bench—again.

Given the controversy surrounding these direct contracts, the removal of Clause 40 on direct awards would, pending greater transparency and equity for SMEs, be the preferable course. But these are specific amendments to Clauses 40 and 42, which would prevent direct awards being used within framework agreements and instead open all such awards to competition. This issue is seen all the time within the G-cloud framework; it prevents proper competition from British SMEs and simply reinforces the dominance of certain key foreign players in the market. These amendments would provide the opportunity to redress the balance and help support UK SMEs.

We will debate the role of frameworks later, but these amendments seek to highlight the blurring of direct award rules by smuggling in large, uncontested contracts within framework agreements. The notion that there is a ceiling above which such awards must be competed for, and below which they can be awarded directly, is theoretically sound if it is rigorously adhered to. We on these Benches would argue that the threshold of £250,000 is too high and that a figure of £100,000 would be more appropriate. I seek the Minister’s view on thresholds and how they are arrived at. However, thresholds are pointless if they are ignored or bypassed, which is what seems to be happening.

One very good example of where this system has completely gone off the rails is cloud computing. This important service is central to the Government’s digital plans. It seems that rarely is the ongoing cloud service bid seen as a separate service; rather, it is wrapped in a package being competed for through a framework agreement by the consulting giants. These consultants always seem to partner with one or other of the dominant, non-UK cloud services companies.

This has gradually led to a disproportionate level of awards to these companies. For example, in 2012-17, one company, Amazon Web Services, was awarded £25.5 million-worth of contracts from a total market worth £381.7 million—a market share of 7%. By 2018-22, its market share had ballooned to just a shade under 40%. In the current financial year alone, 2022-23, AWS has seen £87.7 million-worth of contracts from a total market of £137.6 million—a market share of 64%. The US federal Government estimate that the UK public cloud market was worth $12 billion in 2020 and growing, so AWS can expect a healthy $5 billion-plus, with Microsoft Azure not far behind. Almost none of this would have been opened up to competition.

Of course, in the UK, a company is deemed to have monopoly power if it holds more than 25% of the market. At the same time, the SME share of the market has fallen from more than 50% to just 20% in the last five years, and barely 10% this year. It simply reinforces the dominance of certain key foreign “hyperscalers” in this market. To be clear, it seems that these services are available from UK-based suppliers. We are not asking for preferential access for these UK suppliers, just that they are not locked out by the use of framework agreements in this way and the awards of direct contracts under them.

The Government talk about building a UK digital future, yet they systematically underwrite the development of non-UK businesses by ignoring their own rules. The Procurement Bill is supposedly designed, according to the Queen’s Speech, so that

“Public sector procurement will be simplified to provide new opportunities for small businesses.”


On top of this, the Crown Commercial Service’s own guidance on direct awards suggests that the procedure is suitable only for low-value, low-volume commodity products. In the case of AWS, some of the contracts, such as the Home Office contract, top £100 million in value, so they cannot be considered low-volume or low-value, nor can cloud hosting be considered a commodity, given the proprietary nature of the service and the consequences of that.

If the Government are true to their word, they will accept these amendments to ensure that the balance is redressed and UK SMEs are given a chance to compete on a level playing field. I beg to move.

[Baroness Noakes (Con)]

My Lords, I have Amendment 236 in this group. It probes the relationship between direct contract awards and framework contracts.

Direct awards are allowed under Clause 40 if they satisfy one of the justifications in Schedule 5, paragraph 8 of which allows them if they are similar to existing contracts for goods and services that have been entered into in the previous five years and in which the initial tender set out the intention to use the direct award justification. My amendment would change those five years to four years, specifically to probe the differences between a repeat direct award under Clause 40 and an award under a framework contract, as covered in Chapter 4 of Part 3.

Clause 45 says that a framework contract has a maximum duration of four years other than for defence and utilities contracts. Doubtless this is my ignorance speaking but I hope that my noble friend the Minister can explain to me the rationale for allowing five years for direct awards under Chapter 3 as opposed to four years for framework contracts under Chapter 4. My question is pretty simple: is there a substantive distinction between direct awards and awards under framework contracts, where the justification for the direct award is in paragraph 8 of Schedule 5?

It seems to me that this is another example of how the designers of this new procurement system have lost sight of simplicity and underlying principles in designing the system. However, there may be a good reason for that, of course; I look forward to my noble friend the Minister explaining it.

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[Lord Clement-Jones (LD)]

My Lords, it falls to me as the mover of the lead amendment to respond to the Minister. Clearly, there was quite a lot in what she said and we will need to brood over Hansard when the time comes because there are a large number of issues here. I recognise the Minister’s track record on SMEs but I am somewhat amazed that the Government have been commended on bringing greater clarity, as she put it, because our intention was to provide much greater clarity—and, indeed, equity—in all of this for SMEs. In terms of the addition of more time, burden and so on, I believe the Minister would normally think that we should go the extra mile for SMEs in these circumstances.

[Baroness Neville-Rolfe (Con)]

Certainly. We have discussed SMEs before; we have gone away to have a look at that issue. I recently held a round table with SMEs. Basically, they were positive about the Bill. Clearly, we have to see through and teach them about the new proposals. The basic point is that there are fewer different ways forward. I was quite surprised that that was the case but clearly there is complexity, and we have got to make sure that the Bill is in the right form.

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[Lord Clement-Jones (LD)]

My Lords, I think it partly depends on the market that is covered by particular SMEs. I could probably produce a range of SMEs that are not quite as pleased with their lot. Of course, that is partly the theme that the noble Baroness, Lady Hayman, and I have been talking about in terms of the UK cloud market.

I appreciate the fact that—stop press—it appears that the intention of Clause 41 is to prevent VIP lanes, because, let us face it, that is lesson number one from Covid. I hope that that is correct, but no doubt we will read carefully how and in what respect it gets rid of VIP lanes.

More broadly, virtually everyone who contributed to this debate wants to see a much clearer set of underlying principles—the noble Baroness, Lady Noakes, was clear on this—around how direct awards relate to framework agreements. I do not believe that we have seen that yet. Assurance from a Minister is one thing but seeing it in black and white in the legislation is another. I thought that the phrase “safe from challenge”, used by the noble Baroness, Lady Hayman, was exactly right. We have seen only too clearly what happens when there is no clarity; the Randox contract was an absolutely classic example of that. All of us hope that that will not happen again and hope to see a competitive market for our SMEs. However, I think we will probably have to return to this issue on Report.

In the meantime, I beg leave to withdraw the amendment.

Amendment 235ZA withdrawn.

Procurement Bill [HL]

Lord Clement-Jones Excerpts

Committee stage
Monday 18th July 2022 Grand Committee

[Lord Clement-Jones (LD)]

My Lords, I rise to speak to a number of amendments in this group on behalf of my noble friend Lord Wallace and myself. I must first apologise that there was no presence on the Liberal Democrats Benches at the beginning. I am afraid my colleagues have been in the wars. My noble friend Lord Wallace is at the dentist, my noble friend Lord Fox is suffering from Covid and my noble friend Lord Scriven was delayed for four hours on a train—so it has all been a tale of disaster.

I shall speak first to my noble friend Lord Wallace’s Amendments 450 and 451, which are intended to probe the nature of the exemptions from publishing or disclosing information. It is welcome that centralised investigations by a Minister of the Crown into whether suppliers should be excluded are explicitly allowed under the Bill and that reports from these investigations must be published. However, under the current Bill the grounds for not publishing such reports include national security and the release of sensitive commercial information. Sensitive commercial information is defined under Clause 85 as any information which

“would be likely to prejudice the commercial interests of any person if it were published”.

Given that a debarment investigation, by its very nature, is likely to prejudice the commercial interests of a person in that it will have a significant reputational impact on a company or individual that will affect their commercial relations, this test is too broad and is likely to lead to many debarment investigation reports not being published or to decisions to do so being contested by the company.

Clause 85(2)(b) is likely to lead to more redaction of information than is necessary or in the public interest by putting the onus on the contracting authority to prove there is no chance it will cause any harm to the commercial interests of any person—a standard which is very vague and difficult to enforce. We therefore argue that information in public contracts regarding how public funds are spent should be public by design and redacted only by exception when doing so is in the overriding public interest. Doing so reduces the risk for contracting authorities and will avoid overreaction.

My noble friend’s Amendment 448 has the same intent as Amendment 449A. The noble Lord, Lord Berkeley, spoke to that amendment extremely cogently and I have signed it. As he said, the Freedom of Information Act 2000 applies to information about a contract held by a public authority but not normally to information held by the contractor. Public access to information about public sector contracts varies from contract to contract, depending on their precise terms and on the willingness of the parties to adopt measures permitting greater access.

Much of the information the public may seek will relate to problems not anticipated at the contract stage or to information which the authority did not consider it needed to monitor in relation to performance under the contract. The Bill provides for only limited disclosure to the public about the performance of a contract. An annual assessment of performance against KPIs will be required for contracts valued at over £2 million, but an authority will not be required to publish more than three KPIs and may not be required to publish any at all if it considers that they would not allow the appropriate assessment of the contract’s performance. The actual information to be published about compliance with KPIs will be left to regulations.

In any event, a 12-month wait for an annual publication is unlikely to satisfy the needs of those concerned about an existing problem, and this amendment, as the noble Lord described, provides that all information relating to a contract with a public authority held by the contractor or a subcontractor will be subject to the FoIA or to the Environmental Information Regulations 2004. As he described, this follows the approach of many countries’ FoI laws: for example, Australia, Germany, Ireland, Italy, New Zealand—I could go on.

Amendment 449 would in effect make this position under the UK’s Freedom of Information Act and the EIR. It would ensure that any information held by a contractor in connection with a public authority contract would be deemed to be held on behalf of the authority and thus be subject to the FoIA and EIR. The public’s right to such information would no longer depend on the precise terms of the contract. We strongly support that amendment.

We also support Amendments 455 and 459A in the name of the noble Baroness, Lady Hayman. I have also tabled Amendment 456, which is complementary to Amendment 459A. As the noble Baroness described, Amendment 459A is designed explicitly to frame a duty around transparency in UK procurement beyond publishing the notices themselves as required in the Bill. As she described, this is drawn from the OECD’s recommendation on public procurement and seems to have some purchase with the Cabinet Office. The amendment would help establish how and where the notices should be published. It also says why or what the objective behind publishing the notices is. It is important that the completeness and comprehensiveness of the notices are not changed without accountability.

Amendment 456 goes a bit further and adds specific requirements about the platform’s implementation and would ensure that the information on the digital platform was regularly reviewed for accuracy, timeliness and completeness. A crucial aspect is the need for the contract award notices to be published in a timely fashion. Current legislation requires contract award notices to be published within 30 days, yet research by the Spend Network shows that the mean time to publish contract award notices is over 40 days. Many ministerial departments spending billions of pounds take more than three months to publish notices. The Cabinet Office takes an average of 2.7 months. Vital information is missing from nearly three-quarters of contract award notices, and this is wrong because it denies the public, businesses of all sizes and the media the ability to understand what financial commitments the Government are making and with whom—as with that egregious fast-track PPE contract situation.

We need to ensure that this long-standing problem does not get worse and that the appropriate authority ensures that public sector organisations publish complete, accurate and accessible data under an open licence and that the 30-day threshold set out in Clause 51 is respected in practice. That is what Amendment—

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[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I am tempted to say to the noble Lord, Lord Clement-Jones, that he need not sit down since I am about to call him.

[Lord Clement-Jones (LD)]

Thank you. My Lords, if noble Lords thought that my previous speech took a long time, they will not be happy with the second half of it, which concerns the technical parts. These relate to Amendments 452A, 452B, 519A and 519B, which are technical amendments from the Local Government Association designed to ensure that all notices come within the new digital platform.

Amendments 452A and 452B relate to Clause 86(1) of the Bill, which sets out that appropriate authorities may by regulations make provision about

“the form and content of notices, documents or other information to be published or provided under this Act”

and

“how such notices or documents are, or information is, to be published, provided or revised.”

The amendments would help ensure that future regulations do not contravene the purpose of the single digital platform wherever possible and support the move to progressively streamline the many different publication requirements for procurement information and contract-spend data placed on local government and the public sector as a whole through different pieces of legislation.

Amendment 519A would omit Section 89(4)(b) and 89(5) of the Transport Act 1985. This would remove the requirement for local authorities to issue notices of tender individually to all persons who have given to that authority a written notice indicating that they wish to receive invitations to tender for the provision of local services for that authority’s area. This would bring the requirements to advertise tenders for transport services into line with those set out in the Bill and facilitate the ambition to create a single digital platform where all public tenders are advertised in one place.

Finally, Amendment 519B would amend the Service Subsidy Agreements (Tendering) (England) Regulations 2002 by removing Regulations 4 and 5. Regulation 4 requires local authorities to publish information relating to tender invitations in accordance with Part 1 of Schedule 1 to the same regulations. Regulation 5 requires local authorities to publish tender information to the general public at times, in places and in a form which are convenient to the public, and to publish notices of tenders in local newspapers. Removing the two regulations would ensure that information about contract pipelines and contract awards for service subsidies will in future be published in the same place and format as information about any other public contract, to improve consistency and accessibility. A service subsidy in this context is where councils subsidise companies operating public passenger transport services to run services on routes which may not otherwise be economically viable, for example bus services in rural areas. I hope that has explained these rather technical amendments and very much hope that the Minister understands the motive behind them.

[Lord True (Con)]

My Lords, I apologise for not rising sooner; I never know how many spokesmen are going to rise from the various Benches. This has been another interesting and informative debate. It has also been extremely wide-ranging, as has become our custom in this Committee. I will try to answer as many points as possible, but there are things coming from various areas that we will look at carefully. This is your Lordships’ Committee and therefore it is perfectly reasonable for points to be made. My aspiration is to answer, but I may not be able to answer them all.

Before I get on to the main amendments, I will address various things I was asked about. The noble Baroness, Lady Boycott, asked about the Palantir contract. I am advised that this is a DHSC NHS contract. I am not informed in my department of the details she asked for, but I will ask my officials to follow up and respond to her later.

The noble Lord, Lord Berkeley, asked about a Written Ministerial Statement made last week. The timing of the publication of the participation in government commercial activity guidelines for Ministers referred to in that Statement is not connected to this Bill. The guidance sets out how Ministers can be appropriately involved in commercial activity, including procurements, under the current procurement rules.

I was anticipating in a later group—indeed, there are some relevant amendments—a debate about Hikvision. I am grateful for what the noble Lord, Lord Alton, said, as well as for the opportunity to speak to him about this matter, which, as he said, has some security considerations. So far as the actuality of what might or could happen is concerned—that is a potential rather than a loaded spin on it—it is ultimately up to contracting authorities to apply the grounds for exclusion under this Bill on a contract-by-contract basis. The national security ground is discretionary, meaning that authorities can take into account a range of factors, including the nature of the contract being tendered. However, the debarment regime will allow for the central consideration of suppliers on the grounds of national security. As the noble Lord knows, the Government’s security group is working with the National Technical Authority and the Government Commercial Function on the government security aspects of this issue.

I appreciate the noble Lord’s impatience, given the sensitivities of the issue. Policy options are being worked out for how to mitigate the security risks posed by this type of equipment; they range from primary legislation to ban certain companies from the government supply chain to issuing more advice and guidance for contracting authorities. The Cabinet Office has also published guidance setting out the steps that all government departments must take to identify and mitigate modern slavery and labour abuse risks throughout the commercial lifecycle, focusing on the areas of highest risk. We may well return to this issue in debate on a later group, but I can assure the noble Lord that the matters he raised are ones that the Government are not minimising but currently considering.

--- Later in debate ---

[Lord True (Con)]

My Lords, I have given further information. The noble Lord referred to a whole range of factors which he asked to be considered and asked me to respond to the Foreign Affairs Select Committee report and so on. I said I would reflect on all he has said and come back, but I gather there has been some reflection on this aspect of his menu. We will no doubt maintain this dialogue.

The amendments we were talking about—Amendments 448, 449 and 449A—all relate to freedom of information and seek to bring external suppliers into the scope of the Act. In practice, the Government do not believe that the amendment would add much and could impose burdens on businesses that would make public contracts unattractive. The public authority will already hold all the details of the tendering process and the resulting contracts, and that information can already be requested under the FoI Act. The desire has been expressed in some quarters to reform the FoI Act, but we are looking at the proposals before us.

Furthermore, information held by a supplier or subcontractor on behalf of a contracting authority is already within scope of the Act. The amendments also introduce unhelpful limitations on the ability of contracting authorities to withhold commercially confidential information. This is a point of debate, but the FoI Act sets out the duties on public bodies when they receive requests for information under the Act. Restating the operation of that legislation is not necessary in this Bill. The Bill sets out in detail what information is required to be published and the triggers for publication, as well as requiring contracting authorities to explain why they are withholding any data.

Amendment 449A also seeks to extend the enforcement powers of the Information Commissioner to suppliers and subcontractors and open them up to criminal prosecution. The Information Commissioner already has enforcement powers in relation to public authorities and therefore in relation to the information held by others on their behalf. We believe that transparency is a sanction for authorities that fail to fulfil their obligations to publish as the failure will be obvious to the public. Failure to publish information required by the Act could be subject to judicial review, and there is also potential for a civil claim for breach of statutory duty pursuant to Clause 89 if the supplier can demonstrate that it suffered loss or damage arising from a breach of a publication obligation. Additionally, an appropriate authority has a power under Clauses 96 to 98 to investigate a contracting authority’s compliance with the Act, make recommendations and, if appropriate, provide statutory guidance to share lessons learned as a result of the investigation. Recommendations issued under Clause 97 come with a duty on the contracting authority to have regard to those recommendations when considering how to comply with the Act, and failure to do so would also leave the contracting authority open to judicial review.

Where a contracting authority is required to publish something that includes sensitive commercial information, it may withhold or redact that information only if there is an “overriding public interest” in doing so. Where the commercial confidentiality exemption is used to withhold or redact information, this must be publicly recorded. As such, there will be full transparency about what has been withheld and why, and interested parties can always challenge such decisions by requesting the withheld information under FoI law. This process is subject to the oversight of the Information Commissioner. Interested parties can also complain to the procurement review unit, which we discussed the other day.

Amendments 450 and 451 are from the noble Lords, Lord Wallace and Lord Fox. They are absent, and I send them best wishes for their respective aliments. Expertus dico: I have just had an aliment as noble Lords saw in the last Session, and I very much feel for all noble Lords. These amendments would make it harder for contracting authorities to withhold information in instances where there is sensitive commercial content. The overall result could be the inappropriate disclosure of sensitive information or fear of such disclosure, both of which are likely to have a chilling effect on suppliers bidding if they cannot be confident that their commercial secrets will be respected by contracting authorities. This could lead to a reduction in choice, quality and value.

Amendment 452, tabled by the noble Baronesses, Lady Worthington and Lady Boycott, and Amendment 455, tabled by the noble Baroness, Lady Hayman of Ullock—which I think is intended to address the central digital platform, not the data on the supplier registration system—propose to introduce various requirements about the accessibility of published information and how it is licensed. The Government have already committed to a publicly available digital platform which will allow citizens to understand authorities’ procurement decisions. This data will be freely available. It will remain subject to data protection law and redaction under the exemptions set out in Clause 85.

However, not all information should be published on the central digital platform. For example, some associated tender documents produced under Clause 20 in certain procurement exercises may need to be circulated to only a limited group of suppliers, for instance, where that information is sensitive. As set out in the Green Paper, we will apply the open contracting data standard, and specify this in more detail in secondary legislation. Published data will be covered by open government licence where possible; personal data contained on the platform will be available without any licence.

Amendments 452A and 452B, tabled by the noble Lord, Lord Clement-Jones, would amend Clause 86 to ensure that regulations require publication on a single digital platform. These amendments are unnecessary as the Government have already committed to providing this platform.

The noble Lord, Lord Clement-Jones, has tabled Amendment 456, which imposes obligations on an appropriate authority in relation to standards and quality of data on the platform. Clause 86(1)(a) already makes specific provision for regulations to set out both the form and the content of information to be published under the various notices required by the Bill. This power is there to ensure that regulations can establish the very standards and formats that I believe the noble Lord is seeking.

On the noble Lord’s proposed new paragraph (b), a notice is usually a snapshot of a moment in time. Most notices should not be updated after the initial publication and it is the legal responsibility of the contracting authority publishing the information to ensure that it is timely, accurate and complete. The appropriate authority—a Minister of the Crown, a Welsh Minister or a Northern Ireland department—will not be in a position to verify all that information, which is why it is the responsibility of the contracting authority.

[Lord Clement-Jones (LD)]

My Lords, I apologise for interrupting, but can the Minister therefore explain why these time limits are so regularly and hugely overridden? The research shows, as I mentioned, that the Cabinet Office itself has a delay of 2.7 months compared with its legal obligation of 30 days. How does the Minister explain that, and why is no further action needed in terms of compliance?

[Lord True (Con)]

My Lords, if the Cabinet Office is sinning, I will take the matter away and look into it. I heard what the noble Lord said about time limits, but I do not have a specific response in this area at the moment, and nor can I either confirm or deny the figure he gave. We have undertaken to engage on these issues, and we will find the answers and will look very carefully at what the noble Lord said in his speech—or rather, his two speeches.

Amendment 458, tabled by the noble Baroness, Lady Hayman of Ullock, relates to the creation of a digital registration system for suppliers. The register of suppliers described in the Green Paper remains a priority, and provision for this register is set out in Clause 88.

Amendment 459, tabled by the noble Baroness, the noble Lord, Lord Coaker, and others seeks to introduce a requirement for government departments to produce reports on carbon emissions relating to procured goods, services and works. I made the Government’s position clear previously that such matters should not be included in the Bill and that remains our position.

I thank the noble Baroness and the noble Lords, Lord Coaker and Lord Clement-Jones, for their Amendment 459A. However, the Government are opposed to this amendment as well. It would create an obligation to have the central digital platform operational within six months of passing the Act. Just to be clear, Clause 86 creates the powers that the Government will use to require publication on the single digital platform. Clause 88 is the basis of the supplier registration system, which is the “tell us once” system through which suppliers will communicate information about themselves to contracting authorities.

I understand from his helpful explanatory statement that the noble Lord, Lord Coaker, was referring to the former—the single digital platform. We do not wish to commit to such a timetable now, as it might not be necessary or possible to deliver the whole functionality of that platform to that timetable. As the noble Lord knows, there is already a six-month period of pre-implementation built in, but I hear what he says and I think there is broad agreement in the Committee that this development is desirable. I welcome the positive response from the Liberal Democrats and Her Majesty’s Opposition, having had discussions about it, and I will take away what they say.

Procurement Bill [HL]

Lord Clement-Jones Excerpts

Committee stage
Wednesday 13th July 2022 Grand Committee

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly and with great pleasure to follow the noble Lords, Lord Hendy and Lord Knight of Weymouth. I could not possibly repeat large amounts of what they said. I will just add a couple of points.

First, Amendment 186 in the name of the noble Lord, Lord Hendy, and signed by the noble Lords, Lord Hain and Lord Monks, looks at excluding suppliers for other improper behaviour, particularly the mistreatment of workers. This a change to the Bill that I think would be welcomed by many good employers, because it would help them to ensure that they can compete against cowboys and potential cowboys.

It raises a point that I raised in our earlier discussion about supporting small and medium-sized enterprises; there is continuing debate on this issue, which I am sure we will take to Report. In many cases, we have seen that small and medium-sized enterprises, although not all of them are angels, know their workers as individuals. They are very often better employers, whereas large multinational companies treat their employees like blocks of labour to be moved around on a chess board. I would assert that ensuring that bad labour practice is punished would be of benefit to small and medium-sized enterprises, which noble Lords all around the Committee agreed was a good idea.

Moving on to the amendments in the name of the noble Lord, Lord Knight of Weymouth, particularly Amendment 54 and the linked Amendment 535, it is really useful to put this into context, so I will refer to a UNISON report entitled Outsourcing the Cuts: Pay and Employment Effects of Contracting Out. It focuses on some very detailed case studies and looks at what we have seen, particularly over the past decade: an increased work intensity forced on staff, with greater job insecurity and low or non-existent increases in pay. That has happened right across the UK economy, but it has particularly been the case with outsourced contracts of the kind we are talking about here. As the report says,

“outsourced public servants are at the sharp end of this pressure.”

Those are the circumstances we have been in.

I want to pick up on what the noble Lord, Lord Knight, alluded to: that the quality of life we have in the UK, and the quality of our economy, is acutely related to the nature of that work. Amendment 54 in particular says that the

“contracting authority must take into account the impacts … on local good work”.

We have low productivity; extremely poor public health, both physical and mental; and communities that have truly been hollowed out by low pay, where no one has any money to support local independent businesses. This is a spiral downwards, and we have to get out of that. These amendments are working towards putting in provision to change that. I point to the Government’s levelling-up agenda, which is regionally based, so I believe that they do indeed want to address this.

I will pick up on one practical point and an example of how this might be used. Let us imagine that we have two bids for a contract, one of which is from a company that is trialling—as many now are, and as many have fully implemented—a four-day working week as standard with no loss of pay. I suggest that this amendment says that the impact that could have on the local community must be taken into account. Think of all the extra time people would have for volunteering or for childcare, and the impact that would have on the quality of local life. This would build in things that the Government say are part of their agenda. Perhaps it was more Cameronian, but I think the idea of communities providing local services and volunteering is probably still part of the Government’s agenda. So these amendments would deliver things that the Government say they want to deliver, and I believe they would be truly impressive improvements to the Bill.

[Lord Clement-Jones (LD)]

My Lords, I support Amendments 54, 104 and 535 and will speak to Amendments 67 and 116, which I have signed, which were all so well introduced by the noble Lord, Lord Knight. I declare an interest as vice-chair of the All-Party Parliamentary Group on the Future Of Work.

My own interests, and indeed concerns, in this area go back to the House of Lords Select Committee on AI. I chaired this ad hoc inquiry, which produced two reports: AI in the UK: Ready, Willing and Able? and a follow-up report via the Liaison Committee, AI in the UK: No Room for Complacency, which I mentioned in the debate on a previous group.

The issue of the adoption of AI and its relationship to the augmentation of human employment or substitution is key. We were very mindful of the Frey and Osborne predictions in 2013, which estimated that 47% of US jobs are at risk of automation—since watered down—relating to the sheer potential scale of automation over the next few years through the adoption of new technology. The IPPR in 2017 was equally pessimistic. Others, such as the OECD, have been more optimistic about the job-creation potential of these new technologies, but it is notable that the former chief economist of the Bank of England, Andrew Haldane, entered the prediction game not long ago with a rather pessimistic outlook.

Procurement Bill [HL]

Lord Clement-Jones Excerpts

Committee stage
Monday 11th July 2022 Grand Committee

[Lord Wallace of Saltaire (LD)]

My Lords, I will speak to Amendments 44, 56 and 57. I too have gone back to the Green Paper and the Government’s response to that consultation and I remain extremely puzzled that this entire consultation process was undertaken, that the Government responded in their response document rather favourably to it, but that almost none of that is reflected in Part 2 of the Bill. Part 2 declares that it is about principles and objectives, but Clause 12 reserves the detailed definition of those objectives to the Minister—whoever he or she may be when it comes to it—to set out later in a policy statement. This is a skeleton Bill and, reading through several parts of it, and this section in particular, I am reminded that the DPRRC commented that leaving things to regulations often disguises the fact that Ministers have not yet quite made their minds up as to what their policy and intentions will be when it comes to it.

If Ministers continue to turn over as rapidly as they have under the current Government, we might anticipate that, every nine to 12 months, a new Secretary of State will wish to issue a new strategic statement. Clause 12 tells us that the statement will be presented to Parliament after carrying out

“such consultation as the Minister considers appropriate”

and making

“any changes to the statement that appear to the Minister to be necessary in view of responses to the consultation”.

So we are asked to leave all that—the underlying principles of this Bill—to the Minister, whoever she or he may be by the time this becomes law. Much better to start with a parliamentary debate on what the agreed principles for procurement should be, from one Government to another, than to present Parliament with changing Ministers’ changing ideas after lengthy discussions with others outside.

On that topic, can the Minister tell us which Cabinet-level Minister is now responsible for this Bill, or which Commons Minister he is co-operating with in managing it as it moves through the two Houses? That would help the Committee understand how and whether it is likely to progress and what difficulties or changed circumstances the Minister is operating under. I appreciate and almost sympathise with some of the difficulties he may be going through in those circumstances, but if we intend this Bill to last, to provide some stability for non-governmental suppliers and the clients of public services, we need to put agreed principles and objectives in it.

There was much more about principles in the Government’s response to the Green Paper. Can the Minister explain why it is not here? Why did it not appear necessary, in view of the responses to the consultation? Amendments 43, 44 and others insert statements of principles largely drawn from government publications. They are central to the Bill. I hope the Minister will accept that it was a mistake not to include them and that it is not acceptable to Parliament to leave this to a future Minister—or perhaps Government—and that he will return on Report, after consultation, with a form of words on this that can command a cross-party consensus and which reflects the consultation already undertaken. Amendments 43 and 44 offer different, though overlapping, drafts of what it might be appropriate to include in the Bill.

I will speak also to Amendments 56 and 57. Amendment 56 is purely exploratory; we deserve an explanation in clear and simple language of the grounds on which some suppliers are to be treated differently from others. Amendment 57 inserts clearer language on the criteria by which procurement decisions should be judged: value for money, cost, quality and sustainability—as the noble Lord, Lord Moylan, pointed out, it is the principles that matter most in setting the tone and culture under which the entire public procurement process will take place. These are important terms, not to be left to the policy statement when it comes but fundamental to the principles under which procurement decisions are taken. They must be in the Bill.

We are all aware of procurement contracts where the cheapest bid has produced unsatisfactory outcomes, where what has been promised has not been produced and where insufficient attention has been paid to quality or sustainability. The noble Lord, Lord Moylan, mentioned one, but there are many others. These need to be spelled out for future procurement, with the blessing and approval of Parliament. Parliament has been sidelined under the recent retiring Government; we hope that whoever succeeds our current Prime Minister will treat it with rather more respect and consideration.

[Lord Clement-Jones (LD)]

My Lords, I will speak to Amendment 46, which comes from a slightly different angle. In our report AI in the UK: Ready, Willing and Able?, our AI Lords Select Committee, which I chair, expressed its strong belief in the value of procurement by the public sector of AI applications. However, as a recent research post put it:

“Public sector bodies in several countries are using algorithms, AI, and similar methods in their administrative functions that have sometimes led to bad outcomes that could have been avoided.”


The solution is:

“In most parliamentary democracies, a variety of laws and standards for public administration combine to set enough rules to guide their proper use in the public sector.”


The challenge is to work out what is lawful, safe and effective to use.

The Government clearly understand this, yet one of the baffling and disappointing aspects of the Bill is the lack of connection to the many government guidelines applying to the procurement and use of tech, such as artificial intelligence and the use and sharing of data by those contracting with government. It is unbelievable, but it is almost as if the Government wanted to be able to issue guidance on the ethical aspects of AI and data without at the same time being accountable if those guidelines are breached and without any duty to ensure compliance.

There is no shortage of guidance available. In June 2020, the UK Government published guidelines for artificial intelligence procurement, which were developed by the UK Government’s Office for Artificial Intelligence in collaboration with the World Economic Forum, the Government Digital Service, the Government Commercial Function and the Crown Commercial Service. The UK was trumpeted as the first Government to pilot these procurement guidelines. Their purpose is to provide central government departments and other public sector bodies with a set of guiding principles for purchasing AI technology. They also cover guidance on tackling challenges that may occur during the procurement process. In connection with this project, the Office for AI also co-created the AI procurement toolkit, which provides a guide for the public sector globally to rethink the procurement of AI.

As the Government said on launch,

“Public procurement can be an enabler for the adoption of AI and could be used to improve public service delivery. Government’s purchasing power can drive this innovation and spur growth in AI technologies development in the UK.


As AI is an emerging technology, it can be more difficult to establish the best route to market for your requirements, to engage effectively with innovative suppliers or to develop the right AI-specific criteria and terms and conditions that allow effective and ethical deployment of AI technologies.”


The guidelines set out a number of AI-specific considerations within the procurement process:

“Include your procurement within a strategy for AI adoption … Conduct a data assessment before starting your procurement process … Develop a plan for governance and information assurance … Avoid Black Box algorithms and vendor lock in”,


to name just a few. The considerations in the guidelines and the toolkit are extremely useful and reassuring, although not as comprehensive or risk-based as some of us would like, but where does any duty to adhere to the principles reflecting them appear in the Bill?

There are many other sets of guidance applicable to the deployment of data and AI in the public sector, including the Technology Code of Practice, the Data Ethics Framework, the guide to using artificial intelligence in the public sector, the data open standards and the algorithmic transparency standard. There is the Ethics, Transparency and Accountability Framework, and this year we have the Digital, Data and Technology Playbook, which is the government guidance on sourcing and contracting for digital, data and technology projects and programmes. There are others in the health and defence sectors. It seems that all these are meant to be informed by the OECD’s and the G20’s ethical principles, but where is the duty to adhere to them?

It is instructive to read the recent government response to Technology Rules?, the excellent report from the Justice and Home Affairs Committee, chaired by my noble friend Lady Hamwee. That response, despite some fine-sounding phrases about responsible, ethical, legitimate, necessary, proportionate and safe Al, displays a marked reluctance to be subject to specific regulation in this area. Procurement and contract guidelines are practical instruments to ensure that public sector authorities deploy AI-enabled systems that comply with fundamental rights and democratic values, but without any legal duty backing up the various guidelines, how will they add up to a row of beans beyond fine aspirations? It is quite clear that the missing link in the chain is the lack of a legal duty to adhere to these guidelines.

My amendment is formulated in general terms to allow for guidance to change from time to time, but the intention is clear: to make sure that the Government turn aspiration into action and to prompt them to adopt a legal duty and a compliance mechanism, whether centrally via the CDDO, or otherwise.

[Lord Davies of Brixton (Lab)]

My Lords, I am speaking to my Amendments 128 and 130, although the issues raised there have already been addressed by earlier speakers. I fully support the amendments spoken to by the Front Bench and Amendment 57 tabled by the Liberal Democrats.

Elections Bill

Lord Clement-Jones Excerpts

Report stage
Monday 25th April 2022 Lords Chamber

Moved by

[Lord Clement-Jones]

58: Clause 40, page 50, line 33, leave out “reasonably practicable” and insert “possible”
Member’s explanatory statement
This amendment replaces “if it is not reasonably practicable to comply” with “if it is not possible to comply” to ensure that the majority of electronic material is within scope of the bill’s intentions.

[Lord Clement-Jones (LD)]

My Lords, I rise to move Amendment 58 and speak to Amendments 60, 61, 62 and 65. The amendments in my name in this group closely resemble those I tabled in Committee and that I spoke to comprehensively then. They all relate to digital election campaign content, and I will not repeat the arguments I made for them at any length today. I am grateful to the noble Lords, Lord True and Lord Parkinson, the Bill team and officials from DCMS and DLUHC for meeting with me after Committee, and for what could perhaps be called a moderately enlightening discussion.

Through these amendments, I have been pursuing four aspects of digital campaigning. First, clear guidance on digital imprints is represented by Amendment 58. I have been assured that the Scottish provisions in law—and hence their guidance—are not nearly as prescriptive as those set out in the Bill. I hope that the Minister will give his assurance that the current interpretation of the Bill means that statutory guidance from the Electoral Commission—when it comes forward—will require the imprint in almost every circumstance to be on the image or post, unlike in Scotland. It is really only on platforms such as Twitter, where there is a character limit, that it can be considered not to be practicable to put the full imprint. In addition, I hope he will confirm there will be an expectation that the forwarding of posts will require either the full original imprint to be included or a new imprint to be placed on the material. There will also, I understand, be rules put in place for when and how long material must be retained for inspection.

Secondly, banning foreign actors is sought by Amendment 61. The noble Baroness, Lady Scott, and the noble Lord, Lord True, prayed in aid the new £700 limit and the imprint requirements at our meeting at Committee stage, but neither of them addressed the loopholes which will still exist where multiple identities can be created. This is where both Ministers’ statements were inadequate. The new amendment no longer covers British overseas electors, so I hope the Ministers come up with better assurances in this area. There is some consolation in the provision to review the operation of the Bill, but it is important at this stage—at this stage, not later—to take a view whether they are sufficiently watertight as regards foreign actors. This is an area where the Intelligence and Security Committee and the Committee on Standards in Public Life advocated much stronger controls.

Thirdly, Amendment 62 would require promoters to establish advert libraries for digital campaign adverts placed, while Amendment 60 would require detailed information about expenditure on digital campaign material. Here, the main government argument seems to be that the social media platforms that take political advertising—i.e. not Twitter—are keeping libraries already and are different in character, so it would be inappropriate to have a one-size-fits-all regulation. But at the same time, the noble Lord, Lord True, sought to assure me that several important recommendations of the Committee on Standards in Public Life and the Electoral Commission, including those relating to advert libraries and more detailed information on invoices, are still under consideration by the Government. Given the timing of the introduction of this Elections Bill, surely it is high time for the Government to have made a clear decision. What is the state of play here, in terms of a decision having been made on those recommendations?

The fourth area is that of misinformation and disinformation, starting with my Amendment 65 to criminalise false statements about election integrity, which is designed to see what direction the Government are planning to take. As I outlined in Committee, a whole host of Select Committees and the Committee on Standards in Public Life have made recommendations in this area. This has particular relevance in the context of the Ukraine invasion and Russian behaviour in the digital space for many years now. As former President Obama said in a recent interview with The Atlantic magazine,

“if you ask me what I’m most concerned about when I think back to towards the end of my presidency… that is the degree to which information, disinformation, misinformation was being weaponized. And we saw it. But I think I underestimated the degree to which democracies were as vulnerable to it as they were, including ours”.

And the director of GCHQ, Sir Jeremy Fleming, made a strong point about values in his recent speech in Australia. As he said,

“we must make sure that we stay true to our values, those that have made our systems and democracies so successful and will do so in the future too”.

A recent Ofcom study has revealed that 30% of UK adults who go online are unsure about or do not even consider the truthfulness of online information. A further 6%—around one in every 20 internet users—believe everything they see online.

There is, of course, crossover with the Online Safety Bill. I was grateful for the presence of the noble Lord, Lord Parkinson, at our meeting, where he gave some assurance about the operation of the Bill and the powers of Ofcom regarding the design features of social media platforms and the way that their algorithms amplify misinformation and disinformation; about the adoption of the Law Commission proposals for a new offence of false communication; and about the workings of the counter-disinformation unit together with the Defending Democracy programme and the so-called Election Cell—which I was assured was not as opaque as it seems.

I do not expect the Minister to promise amendments ahead of the Online Safety Bill coming to this House, but I hope he will demonstrate a strong awareness of the importance of this aspect of digital campaigning. We will obviously return to this subject when the OSB comes into this House later in the year.

All that said, it is clear that in many of these areas the guidance and review of an independent Electoral Commission is going to be critical together with parliamentary oversight. Responsibility for elections has now transferred to DLUHC from the Cabinet Office but it is no more acceptable for the Secretary of State for Levelling Up to set the policy and priorities for the Electoral Commission than it is for the Cabinet Office.

Given the risk of skewing our political system in favour of the incumbent Government, it is all the more important we hold fast when the issue which we determined in the first group today comes back to this House. I beg to move.

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have an amendment in this group—Amendment 59, previously tabled in Committee as Amendment 45B. The purpose of the amendment is very simple: it aims to increase transparency about third party campaigning by inserting this new clause, “Disclosure of status as a recognised third party”.

It is not concerned with the question of the imprints on electronic or printed material, which are, essentially, transitory—they come and go—and which are the target of the amendments from the noble Lord, Lord Clement-Jones, to which the Minister will reply in a minute. It is much simpler than that. It focuses solely on the homepage or the website, if it has one, of a registered third party campaigning organisation. If the amendment were accepted, the homepage of that registered organisation would be required to carry a statement along the lines of “XYZ”—the name of the campaigning organisation—“is a registered third party campaigner under Part 6 of PPERA 2000”, or similar wording.

The purpose behind the amendment is to ensure that individual members of the public viewing the website of a particular organisation are unequivocally, and at all times, made aware that the organisation is an active political campaigner. I have never suggested that this is going to bring about any radical change, but by increasing transparency about who is doing what to whom, it follows the direction of travel that the Government have said underlies the Bill.

In his reply in Committee, my noble friend the Minister was rather encouraging when he said:

“On the specific amendment of my noble friend, while the Government entirely agree with the principle that the public should clearly be able to identify recognised third parties, I can reassure the noble Lord that the current rules, supplemented by new rules in the Bill, will provide for that.”—[Official Report, 17/3/22; col. 477.]


He went on to say he wanted to go away to consider it further and asked whether I would withdraw my amendment, which I duly did.

At that point, my noble friend took the trouble to write to me. By this stage, I am afraid his remarks were rather less encouraging. He went on to say in his letter on 4 April:

“I … wanted to reiterate the Government’s position on your proposal to require registered third parties to disclose their registered status on a prominent place on their website, where they have a website … The Government entirely agrees it is right that third-party groups campaigning at elections should be transparent and clearly identifiable. Registered third party campaigners are already … listed on the Electoral Commission’s website, and the Elections Bill will introduce further requirements to ensure that any UK-based group spending over £10,000 registers with the regulator.”


If noble Lords read and consider that carefully, the outcome is quite different from that which would be achieved if my amendment were implemented. Yes, there will be rules about imprints on digital material, which might be strengthened by the amendments of the noble Lord, Lord Clement-Jones, if they were accepted, but unless a member of the public is visiting the organisation’s website because he or she has just received some imprinted material with a digital imprint on it, there will be no way of knowing whether or not the organisation in question is a registered third-party campaigner.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, I thank the Minister for his response and for engaging rather more carefully with the arguments this time around than the noble Baroness, Lady Scott, did with her script in Committee. It was important to address some of these issues. The Minister’s reply was disappointing but expected. He used the word “disappointing” as well.

For a moment, I thought that his speech on the amendment from the noble Lord, Lord Hodgson, was going to have a “not invented here” quality. Actually, it was a game of two halves. Suddenly, the clouds seemed to part slightly. I am sure that the noble Lord, Lord Hodgson, is used to being given assurances from the Front Bench. He will, no doubt, pursue them.

I thank the noble Lord, Lord Collins, for his remarks. Of course, transparency is the essence of what the principle within digital campaigning should be. The Minister’s clarification on the imprint aspect was helpful. The position is different from that in Scotland. I hope that this will be followed up in the statutory guidance to which he referred.

I am disappointed that the Government seem to be torn between saying that the other transparency provisions for advert libraries and invoices are disproportionate yet, at the same time, they are still considering the proposals from the Electoral Commission and the Committee on Standards in Public Life. They are taking an awfully long time to consider these aspects. Obviously, we differ as to whether or not they would be an unreasonable burden on campaigners.

There is a clear difference between what the Minister and the Government seem to be saying about the practicalities of enforcing the strict limits on foreign expenditure and the concerns of the Intelligence and Security Committee. This is not the place to pursue either this or the aspect of electoral misinformation. I was trying to draw out the Minister’s intentions about misinformation and disinformation. It was helpful to have some indication that the Government see the Online Safety Bill as a way of dealing with some of the systemic aspects of misinformation on social media platforms. We will return to this when the Online Safety Bill comes before us in the autumn. I beg leave to withdraw my amendment.

Amendment 58 withdrawn.

Standards in Public Life

Lord Clement-Jones Excerpts

Thursday 9th September 2021 Lords Chamber

[Lord Clement-Jones (LD)]

My Lords, it is a huge pleasure to follow the noble Lord, Lord Puttnam. I commend his Digital Technology and the Resurrection of Trust report to all noble Lords who have not had the opportunity to read it. I thank the noble Lord, Lord Blunkett, for initiating this debate.

Like the noble Lord, Lord Puttnam, I will refer to a Select Committee report, going slightly off track in terms of today’s debate: last February’s Artificial Intelligence and Public Standards report by the Committee on Standards in Public Life, under the chairmanship of the noble Lord, Lord Evans of Weardale. This made a number of recommendations to strengthen the UK’s “ethical framework” around the deployment of AI in the public sector. Its clear message to the Government was that

“the UK’s regulatory and governance framework for AI in the public sector remains a work in progress and deficiencies are notable … on the issues of transparency and data bias in particular, there is an urgent need for … guidance and … regulation … Upholding public standards will also require action from public bodies using AI to deliver frontline services.”

It said that these were needed to

“implement clear, risk-based governance for their use of AI.”

It recommended that a mandatory public AI “impact assessment” be established

“to evaluate the potential effects of AI on public standards”

right at the project-design stage.

The Government’s response, over a year later—in May this year—demonstrated some progress. They agreed that

“the number and variety of principles on AI may lead to confusion when AI solutions are implemented in the public sector”.

They said that they had published an “online resource”—the “data ethics and AI guidance landscape”—with a list of “data ethics-related resources” for use by public servants. They said that they had signed up to the OECD principles on AI and were committed to implementing these through their involvement as a

“founding member of the Global Partnership on AI”.

There is now an AI procurement guide for public bodies. The Government stated that

“the Equality and Human Rights Commission … will be developing guidance for public authorities, on how to ensure any artificial intelligence work complies with the public sector equality duty”.

In the wake of controversy over the use of algorithms in education, housing and immigration, we have now seen the publication of the Government’s new “Ethics, Transparency and Accountability Framework for Automated Decision-Making” for use in the public sector. In the meantime, Big Brother Watch’s Poverty Panopticon report has shown the widespread issues in algorithmic decision-making increasingly arising at local-government level. As decisions by, or with the aid of, algorithms become increasingly prevalent in central and local government, the issues raised by the CSPL report and the Government’s response are rapidly becoming a mainstream aspect of adherence to the Nolan principles.

Recently, the Ada Lovelace Institute, the AI Now Institute and Open Government Partnership have published their comprehensive report, Algorithmic Accountability for the Public Sector: Learning from the First Wave of Policy Implementation, which gives a yardstick by which to measure the Government’s progress. The position regarding the deployment of specific AI systems by government is still extremely unsatisfactory. The key areas where the Government are falling down are not the adoption and promulgation of principles and guidelines but the lack of risk-based impact assessment to ensure that appropriate safeguards and accountability mechanisms are designed so that the need for prohibitions and moratoria for the use of particular types of high-risk algorithmic systems can be recognised and assessed before implementation. I note the lack of compliance mechanisms, such as regular technical, regulatory audit, regulatory inspection and independent oversight mechanisms via the CDDO and/or the Cabinet Office, to ensure that the principles are adhered to. I also note the lack of transparency mechanisms, such as a public register of algorithms in operation, and the lack of systems for individual redress in the case of a biased or erroneous decision.

I recognise that the Government are on a journey here, but it is vital that the Nolan principles are upheld in the use of AI and algorithms by the public sector to make decisions. Where have the Government got to so far, and what is the current destination of their policy in this respect?

Spyware

Lord Clement-Jones Excerpts

Wednesday 21st July 2021 Lords Chamber

Asked by

[Lord Clement-Jones]

To ask Her Majesty’s Government what assessment they have made of the reports of spyware sold by NSO Group to Governments around the world and the uses to which such software has been put.

[The Minister of State, Cabinet Office (Lord True) (Con) [V]]

My Lords, the UK Government are aware of companies selling high-end, state-like cyber capabilities to Governments. We believe that the use of cyberespionage tools against civil society and political groups is unacceptable. It is essential that nation states and other cyber actors use capabilities in a way that is legal, responsible and proportionate.

[Lord Clement-Jones (LD)]

My Lords, the leaked target list of 50,000 people includes UK politicians and journalists. Clearly, all our mobile devices are at risk of being hacked—a huge danger to press freedom and democracy. What is the NCSC doing to counter this, particularly since the whole Civil Service has now moved over to the iPhone? Why has the Home Office given the NSO Group a marketing platform at events such as a security and policing trade fair last year?

[Lord True (Con) [V]]

My Lords, Her Majesty’s Government are committed to defending the UK from online threats and boosting national resilience to cyberattacks, which the noble Lord rightly asks about. In the past five years, the national cybersecurity strategy has begun to transform the UK’s fight against cyber threats. We do not comment on individual cases or intelligence matters, as noble Lords will know, but while we cannot comment on the specifics, for operational reasons, I underline to your Lordships that we very strongly condemn the targeting of UK individuals.

SolarWinds Cyberattack

Lord Clement-Jones Excerpts

Monday 25th January 2021 Lords Chamber

Asked by

[Lord Clement-Jones]

To ask Her Majesty’s Government what assessment they have made of the SolarWinds cyberattack, first reported on 13 December 2020; and what action they are taking in response.

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, this is a complex and global cyber incident. There is an ongoing, cross-government response and we are working with international partners to fully understand its scale and any UK impact.

[Lord Clement-Jones (LD) [V]]

My Lords, the Minister has pretty much repeated what the NCSC said back in December. This was one of the largest and most sophisticated cloud and software cyberattacks ever. SolarWinds’ customers included the Home Office, the MoD, the NHS, the Royal Navy, the Cabinet Office and several local authorities. Surely there has been time to evaluate and at least start countering the impact, identify the source and communicate with those potentially affected? Microsoft has been very transparent in its communications. Is it not time that the Government did likewise?

[Lord True (Con)]

My Lords, the noble Lord will understand the sensitivities of these questions. I beg him to understand that work is ongoing and will take some time. However, we are already well placed to respond, thanks to our national cybersecurity strategy. Simply having SolarWinds does not automatically make an organisation vulnerable. The National Cyber Security Centre is working to mitigate any potential risk and guidance has been published on its website.