Procurement Bill [HL]

Lord Lansley Excerpts

Committee stage
Wednesday 6th July 2022 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

My Lords, as this is my first intervention, I remind the Committee of my presidency of the Health Care Supply Association. I have Amendments 82, 92 and 141 in this group, none of which have much to do with each other, but that is part of the mysteries and delights of grouping.

Amendment 82 is particularly concerned with the challenges facing charities seeking to obtain contracts from public authorities. I am very grateful to NCVO and Lloyds Bank for their briefing on this matter. While all types and sizes of charities experience challenges relating to the commissioning and procurement of public service contracts, smaller organisations often face considerable barriers. Yet a large proportion of the voluntary sector is actually fundamental to the delivery of public services. There are many examples, but we know, for instance, that the voluntary sector is the leading provider of services—according to research commissioned by DCMS—in relation to homelessness, and there are many other services where we are absolutely reliant on the voluntary sector.

However, there is a real problem in the huge amount of work that needs to be done to assemble information and make bids. Advance notice of tender opportunities is important for charities. We know that many of them have far fewer resources than private companies to support bid-writing, so they need time to plan. They also want to take time to work with service users or other charities to develop an offer, and that cannot be rushed. When commissioning services for people, especially those experiencing a range of intersecting challenges, a market does not often exist, so preliminary market engagement is critical for understanding what people need and how those needs could be met.

All my amendment seeks to do is create a presumption that contracting authorities should have ample notice through a planned procurement notice, unless there is a very good reason not to do so. This would allow the necessary time, particularly for smaller charities, to prepare bids.

My Amendment 92 is about the need for rigour and accountability in procurement. It starts from the requirement set by Her Majesty’s Treasury to ensure that the investment of public money, especially large sums, is done objectively and in a way that those who have to authorise the investment can rely on. It also deals with the principle of transparency and would ensure that business cases are routinely published.

My understanding is that it is already required under Green Book guidance from Her Majesty’s Treasury, particularly for major projects managed in the government portfolio, that at least a summary of the business case has to be published within four months of contract award. The Green Book, which has been regularly updated by the Treasury as circumstances require, describes in great detail the rigorous process that needs to be followed. The principle is that if you do not abide by this, you will not get approval for the expenditure of resources. Much in the Green Book is based on the need for a proper business case and I believe it was also envisaged that the business case would be published.

The problem is that regulation and good practice are too often ignored in the public sector. I think athere is less appetite for proper enforcement of that guidance. All campaigners can do to raise concerns about a particular tender process is go for judicial review, which, as we all know, can be very expensive.

My particular interest is the NHS. When I was a Health Minister, which seems a very long time ago, there were very strict rules about spending and investment by trusts. If public money was sought for a major procurement or programme then a strong authorisation path led from region to department, and often to the Treasury itself. Some of that remains, but what is missing is that the former strategic health authorities ensured that the required processes were followed properly and intervened when they were not. They also ensured that the public were consulted, but much of that has foolishly been thrown away. That means that it has become much harder for the public to hold decision-makers to account.

It is very noticeable that, last month, the Public Accounts Committee published a report on the Department of Health’s 2020-21 annual report. It commented that the department

“has regularly failed to follow public spending rules and across the Departmental Group there is a track record of failing to comply with the requirements of Managing Public Money. The Department is required to obtain approval from the Treasury before committing to expenditure where such authority is needed. The Treasury has confirmed that £1.3 billion of the Department’s spending in 2020–21 did not have HM Treasury consent and was therefore ‘irregular’. The Treasury has stated that ‘in the vast majority of cases’ this was because either the Department and/or the NHS had spent funds without approval or in express breach of conditions.”

If the noble Baroness, Lady Noakes, was still in the position she held on financial management in the Department of Health, that would not be happening.

My amendment would ensure that there is a proper business case and that it should be publicly available before crucial decisions are taken. If the Minister says that it is already required, the fact is that parts of the public sector are not listening. I hope that this debate will be helpful in ensuring that the Treasury and government departments look at this very closely in the future.

My third amendment follows a briefing from the RNIB and concerns the fact that, in replacing the existing legislation, the Bill overwrites requirements that are of particular significance to 14 million disabled people in the UK because they ensure that publicly procured goods and services are accessible to everyone. It is pretty unclear at the moment how the current Bill will replace that regulatory framework, and my Amendment 141 seeks to re-establish a requirement that contracting authorities have due regard to accessibility criteria for disabled people.

In June last year several organisations, including the RNIB, wrote to the Cabinet Office seeking assurances that accessibility for disabled people would be maintained in public procurement legislation. Responding, the then Minister, the noble Lord, Lord Agnew—who has certainly shown how you should resign, in style and with full transparency and visibility to your Lordships’ House, although I do not think he quite managed the grace of the noble Lord, Lord True, in his very perceptive remarks yesterday—said that the Government are committed to ensuring that accessibility for disabled people is maintained as part of public procurement legislation, and that the new regime will ensure that specifications take into account accessibility criteria and design for all users. Despite that, the only reference we can find to accessibility is in Clause 87(2), which states that any electronic communications utilised as part of the public procurement exercise must be

“accessible to people with disabilities.”

This is partly probing—finding out the government response to it. If the Minister argues that the public sector equality duty under the Equality Act is sufficient, we will argue that it is not sufficient because we have seen contracting authorities failing to consider their obligations and procuring inaccessible products. This amendment is only a start, but I hope the Minister will be sympathetic to the issue.

[Lord Lansley (Con)]

My Lords, before I speak to my Amendments 84 and 88, I will just say that, while I do not think it is a registrable interest or a conflict of interests, my experience in these things is largely derived from my work, over a number of years now, advising LOW Associates SRL in Brussels, which has a number of contracts with the European Commission and other European agencies. We have participated in procurements on a number of occasions each year in the European context. That gives one quite a lot of experience of the system we are moving from and some of the ways it can be improved. I put that on the record.

My noble friend and other noble Lords may recall that at Second Reading the most important point I made—it is one I will return to on a number of occasions, including when we talk about the procurement objectives and the national procurement policy statement —is that procurement by the public sector is a very large element of economic activity. The way in which it is conducted can have a significant and beneficial impact on productivity in the economy if the issues of innovation are properly incorporated into the consideration of how procurement is undertaken and who the suppliers to public authorities are.

In a sense, the noble Baroness, Lady Worthington, is trying to do the same kinds of things in Amendments 85 and 87. We are maybe trying to approach it in slightly different ways. The same will be true in relation to the procurement objectives.

I hope that in responding to this debate my noble friend can at least give us a sense that we can work together to try to ensure that the promotion of innovation is one of the central aspects of how contracting authorities go about their process of delivering best value, and that the broader externalities of procurement, through promoting innovation in the economy, are realised. They are significant.

Procurement Bill [HL]

Lord Lansley Excerpts

Committee stage
Monday 4th July 2022 Grand Committee

[Baroness Hayman of Ullock (Lab)]

My Lords, where do I start? This is a really important and long-awaited Bill, so it is incredibly disappointing that, after so much time, the Bill was not fit to have been published when it was. With all these amendments, it is quite different from what we debated at Second Reading, even if many of the amendments are technical and there to tidy up. The Government really should have thought about this and got their act together before the Bill was published in the first place.

I know that the Minister is someone we can work with constructively on Bills—I appreciate that—but the Government’s incompetence over the weekend and the way this has been done challenge our ability to work together constructively. That is something else that disappoints me personally. As the noble Lord, Lord Fox, pointed out, it puts too much pressure on staff, who were expected to try to pull this Bill into shape over the weekend.

I reiterate completely what the noble Lord, Lord Fox, said about providing proper Explanatory Notes rather than annexe A, which was very thin on information and, in some cases, did not cover everything that the amendments were about. I spent most of the weekend trying to get my head around a lot of these amendments and cross-reference with the annexe. This is an important Bill and a lot of it is technical. I am not a procurement law expert, so I need support in the Explanatory Notes to understand exactly what is happening and what the amendments will do. When we are cross-referencing and trying to make sense of things, it is hard. As a member of the Opposition, let me say that this is not just about holding the Government to account; as I said, it is about working constructively to make legislation better. The Government have not helped us to do this.

My plea to the Minister is that we really need to move on from this and make sure that we can scrutinise Bills in a much better way. We are where we are with the Procurement Bill.

I totally understand and support what the noble Lord, Lord Fox, said about objecting to some of the amendments, because all this has been deeply unhelpful. Okay, we will do only three groups today, but at some point we have to get stuck in. It took me over two hours yesterday to go through all the amendments in group 1—group 2 has about three times that number. If we are going to do this properly, and actually look at the amendments rather than take the Government’s word on what is in them, it will be very time consuming.

I am afraid I am going to share with noble Lords some of what I did yesterday. It needs to be spelled out how complicated and confusing it is when we try to manage something such as this. Obviously, I started with group 1 and the proposed new Clause 1, which is about procurement and covered procurement. I read the amendment. I did not really understand what covered procurement it is, so I looked at section 5 of annexe A, which is just definitions; there is no further information. I still do not really understand the implications of changing this terminology. That is something we need to get across to the Government. We need to know exactly what is happening. This also has an impact on Amendments 55, 301, 405, 406, 408, 411, 416, 453 and 454. This affects many parts of the Bill, so we have to understand what is going on here.

I then looked at Amendment 172 to Clause 30, which would delete the word “procurement” and insert

“the award of a public contract”.

Apparently this is in annexe A, sections 3 and 8. Section 3 just says “replaces references to associated supply with associated person and expanding the concept”, but again, why? Why is that important? Why do we have to do that? Section 8 is about ensuring clarity on how a contracting authority must treat a supplier. Why do those changes do that? What is the purpose behind changing the terminology?

We have talked about the devolved Administrations. Amendments 282 to 285 to Clause 51 are about Northern Ireland. This is covered by sections 26 and 27 of annexe A, which say that “contract deal notices in respect of light-touch regime contracts must be published in 180 days.” Again, there is no proper explanation of how that affects Northern Ireland and what it means for the way it carries out procurement.

Moving on, I came to Amendments 342, 349, 356, 378, 380 and 383, which also refer to Northern Ireland, and Amendments 392 and 433, which refer to Wales. But the annexe also mentions Wales for the amendments that are supposed to be about just Northern Ireland, so it does not cover everything that the amendments say they do. I had had about four cups of coffee by this point just to try to keep going.

Amendments 377, 381, 385 and 387 would insert the word “was”, but the parts of the Bill they would amend already have the word “was”. Again, I am really confused about why we need another “was”.

Amendments 379, 382, 386 and 388 would insert

“as part of a procurement”.

If that is something that needed to be spelled out, I find it extraordinary that it was not written in in the first place.

Amendment 389 would delete subsection (10), which says:

“This section also does not apply to … defence and security contracts, or … private utilities.”


That is not tidying up or technical; it would delete a subsection that says something. I ask the Minister: what does that actually mean? What does it do? Why is that subsection being deleted? What is the purpose behind it?

Amendment 390 would delete a paragraph that reads,

“the value thresholds in subsection (2)”.

Again, it is not a tidying-up but a deletion. What does this actually mean? I am sure I am confusing everyone here because they do not have the Bill in the right places in front of them—I could read out the actual page numbers, if noble Lords want.

Amendment 391 would delete “in subsection (7)” on page 46, line 9. Why are those words being deleted? What is the purpose behind it?

Amendment 395—there are a lot like this—would delete “supplier” and add “person”. If this terminology was wrong, why was it not picked up so much earlier, when the Bill was being first drafted?

Amendment 424 would delete

“the award of a contract”

and insert “procurement”. Again, if that is the terminology that should have been used, why was it put in wrong in the first place?

In Amendment 425, “unless it is awarded” is to be deleted and “other than procurement” inserted. Those do not really seem the same to me, so what is the point of that change? What are the Government trying to do?

Amendment 426 would delete paragraph (c) on page 50, line 18:

“in relation to the management of such a contract.”

Why do we need paragraph (c) deleted? What is the purpose of it? Annexe A does not tell us any of this information.

Amendment 437 says:

“Page 53, line 3, leave out paragraphs (a) and (b)”.


Why are we deleting paragraphs (a) and (b)? What is the purpose and what are the consequences?

Amendment 438 says:

“Page 53, line 17, leave out ‘or services’ and insert ‘, services or works’”.


That seems the sort of thing that should have been drafted correctly in the first place.

Amendment 439 says:

“Page 53, line 26, leave out from ‘procurement’ to end of line 27”.


That is also the same in Amendment 462. Again, it looks to me like something that should have been done properly in the first place.

Amendment 440 says:

“Page 53, line 37, at end insert”,


and noble Lords can see the words on the Marshalled List—there is a lot there, and I really do not think that anyone wants me to read it all out. Again, this is not a technical adjustment but inserts quite a substantial amount of text. What are the implications? These may all be marvellous changes that benefit the Bill, but the point is that we do not know because we do not understand what is going on here.

Amendment 463 would delete subsection (8) on page 57, line 7. Amendments 439 and 462 do the same thing. What is the purpose of deleting subsection (8)?

I will not cover Amendment 528, because it has been moved to a different group. Noble Lords will be glad to know that I have only two left.

The annexe says that Amendment 540 is to define expressions. It inserts “covered procurement” and “debarment list”. What does “covered procurement” mean? Why does it reference the “debarment list”? That is similar to Amendments 542 and 543.

I will finish there. I just wanted to get across to the Committee and the Minister how very confusing this is and how little back-up information we have. We want to work constructively with the Minister. We want this to be a good Bill. For goodness’ sake, we just need to be able to get it sorted.

[Lord Lansley (Con)]

My Lords, I am the bearer of a simpler brain than the noble Baroness, so I may not cast too much helpful light, but I will do my best. I come to this more in general terms than trying to work from the specific to the general.

I thank my noble friend very much for taking out Amendment 528. I was going to ask him to do that, because we should consider the health service issues together, including Amendment 30 relating to the scope of the light-touch contracts.

--- Later in debate ---

[Lord True (Con)]

My Lords, I listened carefully to the noble and learned Lord’s remarks. We will take them away. I have said that I will withdraw the amendment.

My noble friend Lord Lansley was accurate in divining the Government’s intention with this. The intent is to distinguish between the fully regulated—I will not use the word “covered”—and the less regulated.

[Lord Lansley (Con)]

I am sorry to interrupt my noble friend, but I am glad that I was not misdirecting myself.

On the noble and learned Lord’s point, I understood what it meant only when I looked at what “public contract”, as defined by Clause 2, means. Once one looks at Clause 2, it becomes very straightforward to check it. I looked at Clause 1 and realised that it is not a national covered procurement policy statement but a national procurement policy statement. None of the amendments change that bit, which told me that what we are dealing with here is the Government proposing that there should be a mechanism for talking about procurement in its broadest sense, while intending to regulate procurement in a slightly narrower sense by regulating everything above the value threshold. This did not seem intrinsically confusing to me once I understood what it is we are trying to do here.

[Lord True (Con)]

I do not think that, in public remarks that will be recorded for all eternity in Hansard, Ministers should ever agree to the idea that anyone might be confused by the crystalline words that come before the Committee, but I must say that I did not, at first blush, understand these proposals when they were put forward and laid. I understand the objective, and think that both the noble and learned Lord and my noble friend have understood and divined it. We believe that it meets the requirement but, in the light of what your Lordships have said, I am sure that we can reflect on that. I will withdraw this amendment so that we can come back to it.

My advice from legal advisers is that this amendment adequately achieves the objective we sought. As to the elegance of it, I am not going to go into a disquisition of other circumstances in which “covered”—

--- Later in debate ---

Moved by

[Lord Lansley]

3: Clause 1, page 1, line 21, at end insert—
“(3A) A university is not a public undertaking for these purposes.”

[Lord Lansley (Con)]

My Lords, I am glad to have the opportunity, by way of Amendment 3, to probe—I think it is literally that—how the Bill is to be interpreted in relation to the activities of various organisations. I am using universities as a way of trying to understand how it works. Clearly, universities are charter bodies. I assume they are not included in a definition of public authorities, since they do not exercise an authority of a public nature. That is question No. 1.

Question No. 2 is: if they are not a public authority under Clause 1, are they a public undertaking in that they are

“funded wholly or mainly from public funds”

or

“subject to contracting authority oversight”?

Are they subject to such an oversight? Is the Office for Students such a contracting authority? I suspect it might be, and might have oversight. Is the intention that universities, purely by way of an example, should be included in the definition of public undertakings for these purposes? If they are, I come back to Amendment 3 and say: perhaps they should not be because, as charter bodies, they are self-governing institutions and, I would have thought, can be perfectly comfortable outside the scope of the legislation.

I will not comment on other amendments in the group, other than to say that they afford an opportunity, not least for my noble friend Lady Noakes—I think she is not intending that hers be moved—to explore the way in which public contracts are to be defined, the extent to which there are exempted contracts within those and the rationale behind the listing of the exempted contracts in Schedule 2. I will leave that to my noble friend. Suffice it to say that I am, as my noble friend the Minister said, generally in a position of us trying to regulate less rather than more and to get to the point where people are clear where they are pursuing things competitively, where they are self-governing institutions and where they have other forms of accountability. Where we are not required by our international obligations or other reasons to impose regulatory requirements on them, we should try to avoid doing so. I would be grateful if my noble friend if he uses the example of universities as a way of helping us understand how the specific provisions in Clause 1 are to be interpreted. I beg to move.

[Baroness Noakes (Con)]

My Lords, I have a number of probing amendments in this group and throughout the Bill. The majority of them have been inspired by Professor Sanchez-Graells of the Centre for Global Law and Innovation at the University of Bristol Law School. I am grateful to him for sending me his research-based analysis of the Bill, which listed 50 areas to explore further. Noble Lords will be relieved to know that I have whittled this down to a smaller number of probing amendments.

In this group I shall speak to Amendments 4, 8, 9, 23 and 29 in my name. Amendment 4 is a probing amendment in relation to the definition of “public authority” in Clause 1. Subsection (2) includes authorities or undertakings

“subject to contracting authority oversight”,

which is defined in subsection (4). That says “contracting authority oversight” exists

“if the authority is subject to the management or control of … a board more than half the members of which are appointed by a particular contracting authority.”

My amendment probes whether this is the right definition.

The Bill’s definition appears to turn on whether board members are actually appointed by a contracting authority. Company boards are appointed by shareholders, so who is appointed by whom depends on whether the shareholders exercise their voting rights in any election of directors. A contracting authority may own a majority of shares and hence be capable of appointing a majority, or even all, of the directors but may not in fact exercise its rights, whether by accident or design. Nevertheless, the authority will be capable of voting for board appointments and would, in normal parlance, be treated as having control. Most definitions of “control” in other legislation use that concept and I suggest that the Bill would be better drafted on the ability to control, rather than on what votes have taken place in the past.

My Amendments 8, 23 and 29 probe why the Bill, with its admirable aim to consign EU procurement code to history for the UK, has persisted in using language that can only have been derived from the EU and is not part of UK usage. I raised this at Second Reading. When I searched online for “pecuniary interest”, which is the particular phrase used, the only references that came up were to declarations of pecuniary interests in connection with standards in public life. The term is used in that way in secondary legislation dealing with local authorities. It never seems to be used in the context of contracts.

My amendments propose replacing “pecuniary interest” with “consideration”, which is a term that has a long-standing pedigree in contract law. An alternative could be to remove the words entirely, as it is not clear why it is necessary to restrict contracts that state a consideration, monetary or otherwise.

My last amendment in this group is Amendment 9, which probes another term that is used in Clause 2. A contract within the scope of the Bill is one for the supply of goods, services or works to a contracting authority. The context in which I tabled this amendment was to see whether it covered contracts where a contracting authority contracts for services to be provided to some other person; for example, where social care services are procured. This is clearly the intention of the Bill, but I am not clear that it has been drafted to achieve that.

On reflection, I query whether the words “to a contracting authority” were at all necessary in the clause. It may be a hangover from the EU rules, which we have by no means escaped with this Bill. Every time words are put into legislation, there is a question about what they mean or do not mean. This came up earlier when the noble Lord, Lord Fox, was speaking. It is important to be clear that we use words only when we absolutely have to and that they have definite meaning.

--- Later in debate ---

I am sorry to speak at such length, but a large number of matters were raised and, if I have missed any, I apologise to colleagues in the Committee; we will pick them up in correspondence.

[Lord Lansley (Con)]

My noble friend should not feel he has to apologise for responding to colleagues in Committee who raised a number of points. That is precisely what we are here for, and we are grateful to him for that; he did so extremely well, and it helped us to realise some of the important links in the Bill, how it is structured and why it is structured as it is. For example, the fact that we have for a long time been signatories to the Agreement on Government Procurement, the GPA, has been reflected in EU legislation; in the absence of EU legislation or carrying it forward as retained EU law, we want our own legislation, but the GPA does not apply in the United Kingdom unless we legislate for it. That is how our domestic legislation works, and we have to have a structure to do that.

Coming back to my Amendment 3, I had not understood that the GPA itself was the basis for the interpretation of whether universities are public authorities for these purposes. Happily, I do not think it will distress universities too much, as it is a continuation of their existing situation. When we look at exempted contracts, we see that research and development and employment contracts are out, which are probably their two main elements of expenditure. I should think they would be perfectly comfortable with that.

On that basis, I will not detain the Committee any longer. I beg leave to withdraw Amendment 3.

Amendment 3 withdrawn.

Public Procurement (International Trade Agreements) (Amendment) Regulations 2022

Lord Lansley Excerpts

Wednesday 15th June 2022 Grand Committee

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

My Lords, the instrument brought forward today will give legal effect in domestic regulations to the United Kingdom’s procurement obligations under the free trade agreement between the UK and EEA EFTA states of Iceland, Liechtenstein and Norway. The EFTA agreement sought to reflect many of the provisions of the EU-EFTA agreement by which the UK was bound when an EU member state. This is part of the Government’s wider approach to provide continuity, as far as possible, in existing trade and investment relationships with third countries that had an agreement with the EU before we left.

The UK-EFTA agreement was signed on 8 July 2021 and completed its scrutiny period prescribed under the Constitutional Reform and Governance Act in October 2021. This instrument is concerned with implementing the procurement obligations contained in that agreement. The procurement provisions will ensure that UK businesses will continue to be able to access procurement opportunities in these three countries. This coverage is reciprocated by the UK giving businesses from those EFTA states no less favourable treatment when conducting its procurements covered by the agreement.

The UK has an open procurement market underpinned by principles of non-discrimination and equal treatment. However, without this instrument, there is a risk that, in respect of procurements covered by the agreement, relevant EFTA businesses will not be entitled to the legal remedies that the UK has committed to in the agreement. This instrument therefore ensures that we fulfil our obligations.

In terms of the coverage in the agreement, the UK is an independent party to the World Trade Organization’s Agreement on Government Procurement—or GPA, as it is known—along with Iceland, Liechtenstein, Norway and other major world economies. The GPA aims to mutually open global public procurement markets and is worth some £1.3 trillion in guaranteed access to global procurement opportunities for UK firms.

The UK-EFTA agreement incorporates the relevant GPA provisions, and goes further. The procurement coverage is similar to the UK’s coverage under the EU’s agreement with the EEA EFTA states, with some exceptions including in respect of health services.

This instrument is being made using powers set out in Section 2 of the Trade Act 2021. It will add the UK-EFTA agreement to the existing schedules of international trade agreements contained in the various UK and Scottish procurement regulations to ensure that no less favourable treatment is accorded to businesses of Iceland, Liechtenstein and Norway, where the procurement is covered by the terms of the agreement. It will also make explicit in those procurement regulations that contracting authorities can make inquiries as to whether subsidies form part of an abnormally low tender, as provided for in the agreement.

Importantly, these amendments do not add any burdens to the UK’s procurement process, nor do they reduce any of the UK’s procurement standards.

The provisions will be implemented across the United Kingdom. We have consulted officials from the devolved Administrations throughout the process. We have also formally notified each Administration, via ministerial letters, of our intention to lay this instrument. The Scottish and Welsh Governments have formally agreed to our approach and the Northern Ireland Executive Minister responsible for procurement has confirmed that he did not have any objections. I therefore thank each Administration for their engagement and collaboration.

Any amendments to the procurement coverage in the UK-EFTA agreement, or other international trade agreements, will require further legislation to give them legal effect. Any future trade agreements which the UK signs or has signed—for example, with Australia and New Zealand—will be implemented by separate legislation.

I hope that noble Lords will join me in supporting these draft regulations. I commend them to the Committee and beg to move.

[Lord Lansley (Con)]

My Lords, I am very glad to have the opportunity to say a few words about these regulations and I thank my noble friend for introducing them so clearly. As somebody who laboured long and hard on the Trade Act 2021, it is always a pleasure to see the powers being used. There may not be many such further events but it is interesting to see it being used in this case.

I must confess that the reason I looked at these regulations was that, as my noble friend will recall, at Second Reading of the Procurement Bill I raised the interaction between that legislation and the Trade (Australia and New Zealand) Bill, which had, of course, been introduced at the same time in the other place. I looked at this instrument and thought, “How does this relate to the Procurement Bill?” Like the Australia and New Zealand Bill, as far as I can see, the Procurement Bill will supersede these regulations when it becomes law. Schedule 9 to the Procurement Bill incorporates the UK-EFTA agreement into the list of treaty state suppliers. So far, so fairly straightforward: we need these regulations to give effect to the agreement in the intervening period.

However, there is an issue about what these regulations do, because they also amend public contract, concession contract and utilities contract regulations to include the further provision relating to abnormally low tenders. It is a question of whether the price or costs take into account the grant of subsidies. First, I ask: does the preceding EU-EFTA economic area agreement have the same language? It seemed surprising if it did, on the face of it, because existing regulations, which are part of the structure of EU regulation, already take account of whether—to cite Regulation 69 of the Public Contracts Regulations, for example—the abnormally low tender price is because of the possibility of the tenderer obtaining state aid.

I should have thought that, in the EU context, the question of state aid and grant of subsidy were regarded as effectively the same thing. I suspect, therefore, that EFTA countries are saying that the words “state aid” do not necessarily have the same meaning in United Kingdom in future as “state aid” did in the EU in the past. I may be wrong about that, but I should be interested to know whether that is the case.

Anyway, this additional provision in the regulations changes, for example, Regulation 69 of the Public Contracts Regulations, which relates to abnormally low tenders. I thought, “Let’s see how this is incorporated into the Procurement Bill”, but I cannot find it. So, my other question is: how will that Bill incorporate the provisions of, for example, Regulation 69 relating to abnormally low tenders into the structure of our regulation in future? I am happy to be guided by my noble friend on that, not least because it will no doubt give us an opportunity to learn a bit more about how the Procurement Bill itself will work in future. Subject to those questions, I am glad to take the opportunity to welcome the regulations and support my noble friend.

[Baroness McIntosh of Pickering (Con)]

I, too, am pleased to speak to some of the issues before us this afternoon and thank and congratulate my noble friend on bringing forward the regulations. My noble friend Lord Lansley has eloquently addressed a number of issues on the relationship between this instrument and the public procurement Bill. But there is also the broader context of our new relationships with the EU and, now, with the three countries before us this afternoon. What is generally understood by “state aid” and has our policy towards them changed in that regard?

Perhaps the thing that concerns me most is this. My noble friend spoke about the GPA, the global procurement agreement to which we have signed up, and mentioned that it is worth £1.3 trillion to the UK economy. When the Trade Bill was passing through—I also took an interest in that at the time, and my noble friend Lord Grimstone spent hours trying to allay our concerns in this regard—it was curious that any public service was obliged to declare a contract worth, I think, €130,000 and to put it out for tender.

Procurement Bill [HL]

Lord Lansley Excerpts

2nd reading
Wednesday 25th May 2022 Lords Chamber

[Lord Lansley (Con)]

My Lords, I am very glad to follow the noble Lord, Lord Stevens. He very helpfully reminded us that we might legislate but it is the Government’s job to execute. The ability with which the execution of policy is carried out is a fundamental part of this. I might also say that, as the noble Lord unfortunately discovered in the particular respect he mentioned, we can legislate but if we leave loopholes we allow the Government to drive coaches and horses through them from time to time. That is why we sometimes have to look very hard at Bills to make sure they very clearly express Parliament’s intentions. Important and detailed as this Bill is—the way my noble friend Lord True very clearly set out the Bill’s intentions was most helpful —as the noble Baroness, Lady Hayman, said, we want constructively now to engage with that and to seek to improve the Bill before we send it to the other place.

In terms of interests, I am a director and adviser to LOW Associates, which is a beneficiary of procurement contracts with the European Union. I have looked quite carefully: we have a number of contracts with the European Commission and we advise on European procurement. Although that gives me experience in this respect, I do not think it gives rise to any direct conflict of interest—but I make the declaration in case anybody wants to check it out.

The noble Lord, Lord Stevens, is absolutely right. Where the NHS is concerned, “light touch” should not mean without proper transparency, processes and the ability to understand what is being bought and why. Indeed, there has been some activity in the NHS that should be paralleled across government. Procurement is increasingly seen as an essential part of the quality of management. That is happening through things such as Getting It Right First Time and the benefit of the report from the noble Lord, Lord Carter of Coles, on procurement in the NHS, which included building a procurement profession inside the NHS, which hardly existed. Right across government, we need chief procurement officers to be seen as often as important as chief financial officers in getting the quality of service and value right.

Because this is Second Reading and time is necessarily short, I will mention just two things—there will be further detail on the Bill—that I want to raise in this debate and that I hope to follow up in Committee and on Report. The Chancellor the Exchequer, in his Spring Statement in March, said that

“over the last 50 years, innovation drove around half the UK’s productivity growth, but since the financial crisis, the rate of increase has slowed more than in other countries. Our lower rate of innovation explains almost all our productivity gap with the United States.”—[Official Report, Commons, 23/3/22; col. 341.]

It is clear from the research that innovation and procurement are intimately related in an economy. Procurement, as a mechanism for fostering innovation in an economy, is probably more important than the grant-led systems that we often focus on. We often operate on the supply side, saying, “We must have more scientists, start-ups and grants for innovation”, but actually we need to remember that the demand side may have at least equal impact, because demand pulls through innovation. The home market—the UK market—in particular can be of additional and significant importance to innovative suppliers, enabling them to establish and bring forward innovation in an economy. Innovation needs to be an essential part of our procurement process.

I acknowledge that the objective of procurement is not innovation but to secure quality and value in public services and to do so in a transparent and fair way. But the consequences of procurement to society are terrifically important. What the noble Baroness and the noble Lord, Lord Fox, were saying about social value is terrifically important. We should acknowledge and understand the externalities of procurement, and, through the legislation, we should tell the public contracting authorities that they should take account of them. There was an interesting exchange on this.

The Government’s national procurement policy statement, published in June 2021, acknowledged that the national priority is social value. In that context, “social value” was defined as

“new businesses, new jobs and new skills; tackling climate change and reducing waste, and improving supplier diversity, innovation and resilience.”

This relates to the point that the noble Lord, Lord Stevens, was making, and to my own point about innovation. These things are all in there, but they are not in the Bill, because the day after the Bill comes into force, the Government could write a new national procurement policy statement.

My initial submission at Second Reading is that government should be very clear that the procurement objectives include not only public benefit but social value, and the latter must be defined in the national procurement policy statement in the ways that we specify in the Bill. I hope to include all those points, including the issues relating to climate change, supply chain resilience and the importance, from my point of view, of procurement-led innovation in the economy.

I will make one other point about treaty state suppliers—this is not the point that was previously made. The International Agreements Committee, of which I am a member, is scrutinising the Australia and New Zealand free trade agreements, which are the first of their kind. The Trade (Australia and New Zealand) Bill has been introduced in the other place, and the purpose of this legislation will be to repeal that when the time comes. So, at the same moment, we have a Bill at each end, with one repealing the other—why is that the case? Looking at the Explanatory Notes to the Bill in the other place, I see that it is clearly because the Government expect that Bill to pass rapidly and this one to pass slowly. Therefore, the consequence is that they need that legislation quickly but will subsequently repeal it using this legislation. This is the way that such legislative matters proceed.

My problem is that Schedule 12 to this Bill simply repeals that legislation. So, if we were to amend the Trade (Australia and New Zealand) Bill at any point in the future, it could—or, in fact, would—be repealed by government by virtue of Schedule 12, so any debate on the Trade (Australia and New Zealand) Bill is pointless. I hope that we make sure that that does not happen. We must therefore have a serious debate about whether we are happy for future free trade agreements with procurement chapters to be implemented solely by secondary, rather than primary, legislation. We had this debate on the Trade Act, and I think that we will need to come back to it.

Overall, this is an important Bill, very well introduced by my noble friend—

[Lord Wallace of Saltaire (LD)]

There are only 11 schedules to my copy of the Bill.

[Lord Lansley (Con)]

Forgive me—it was actually added to Schedule 9. But I am referring to paragraph 3 in Schedule 11, on repeals. None the less, I welcome the Bill and look forward to our debates on it.

Dissolution and Calling of Parliament Bill

Lord Lansley Excerpts

Consideration of Commons amendments
Tuesday 22nd March 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, after a short debate in the other place, the amendment proposed by this House was disagreed, and here we are today. There is still an issue: we believe the Dissolution of Parliament should not be based on the revival of the prerogative, but the other place takes a different view. The other place is the elected Chamber. As I made clear during the debate, this issue was to be decided not by Parliament as a whole but by the other place because that is the elected Chamber. It has spoken. I stand by the undertaking I gave during the debate, and therefore this must be carried.

In doing so—I think I am allowed to say this—I very much hope that, in the long march of the future, it will turn out that the decision of the House of Commons is vindicated. I really do hope that. I would like to think that I will be right, but I still do not have confidence that we can be sure that no future Prime Minister will misuse or abuse this power. We will therefore have to wait for the future to decide who, in truth, was right on the issue.

[Lord Lansley (Con)]

My Lords, I hope we are all agreed that we should not insist on the amendment that we passed on the previous occasion. However, we were right to ask the other place to think again. Indeed, even though it was a relatively short debate, and programmed as such, it was an opportunity for a number of Members to think again—if not necessarily to change their minds, at least to reflect on the nature of the decision that was being made. For example, Jackie Doyle-Price said:

“In building legislation that will last, we need to ensure that we have sufficient, adequate checks so that any Prime Minister will not abuse their position.”


Kevin Brennan asked a very interesting question, which we raised here:

“What would happen where the Prime Minister of a minority Government wished to call a general election, but there was the possibility of an alternative Government being formed? Would that Prime Minister be able to dissolve Parliament by prerogative in those circumstances, or would another person be given an opportunity to form a Government and a majority in the House of Commons?”—[Official Report, Commons, 14/3/22; cols. 647 and 643.]


Of course, the answer is that such a person may be given such an opportunity but that would be by the exercise of the discretion of the sovereign, which would draw the sovereign back into decision-making—something we were all agreed that we wanted to avoid.

The point is that our amendment was intended to raise these issues but not in any sense to undermine the manifesto commitments of the two main parties to repeal the Fixed-term Parliaments Act. However, the manifestos did not say how the Act was to be replaced.

The Government have settled to their satisfaction that the constraint of Parliament upon the prerogative power is to be removed, but they have not settled the question of whether the sovereign might continue to be drawn into Dissolution decisions. It is unfortunately likely that, if there were to be another coalition—I speak as a former Minister in a coalition Government—this issue will resurface; it is bound to do so. Like the noble and learned Lord, Lord Judge, I hope that we will be proved wrong and the Government proved right.

In such important constitutional legislation—the Government are fortunate in having my noble friend on the Front Bench to steward it in this place—we should be looking for consensus and certainty. I am not sure that this Bill has achieved that. None the less, I hope that the Bill will succeed in its objectives.

[Lord Grocott (Lab)]

My Lords, we should not let this moment pass without reminding ourselves of precisely what a bizarre set of circumstances we find ourselves in. I remind the House that the Lords amendment that we sent to the Commons says:

“The powers referred to in subsection (1)”


—that is, the power to dissolve Parliament—

“shall not be exercised unless the House of Commons passes a motion in the form set out in subsection (1B).”

In other words, very simply, this unelected House is saying to the elected House that, while it is none of our business, we think the House of Commons should have something to say about whether the House of Commons should be dissolved and the electorate consulted. I hope that, at some point in the future, the Commons reason for disagreeing with this House will be printed word for word in Erskine May, as follows:

“The Commons disagree to Lords Amendment 1 for the following Reason—Because the Commons do not consider it appropriate that the dissolution of Parliament should be subject to a vote in the Commons.”


Imagine if we substituted “the Dissolution of Parliament” for, say, something that we are going to debate in another Bill tomorrow—“the electoral system”. This is our constitution. It is not any old Bill but the rules of the game. Could we have an amendment in future saying that the Commons disagrees with the Lords in an amendment on the electoral system, on the basis that the Commons does not consider it appropriate that the electoral system should be subject to a vote in the House of Commons? That could apply to any other aspect of our constitution.

I feel pretty confident in saying that there has never been anything quite like this. As we have said time and time again, the whole development of our parliamentary democracy has been a slow transference of power from the monarch/Executive to the elected House of Commons; yet this particular Commons, elected just two years ago, is saying that whether or not there is an election is not anything to do with it. Ultimately, this entrenches the possibility of the monarch becoming profoundly and deeply involved in politics and in an acutely political decision: whether there should be a general election—there is no bigger decision than that. The House of Commons feels that it should not have any say in that whatever, and it should ultimately be a decision for the monarch.

I encourage those who revise Erskine May to make sure that this stunning reason on Dissolution appears somewhere in the text of that great tome. I am sure that it has never happened before. I think it is absolutely bizarre of the Commons to say that it does not want anything to do with this.

Lobbying of Ministers

Lord Lansley Excerpts

Tuesday 1st March 2022 Lords Chamber

[Lord True (Con)]

My Lords, a number of important documents and proposals have been presented to the Government; the noble Lord mentions one of them. We have the Boardman recommendations and the post-legislative scrutiny, which I have just mentioned. All those mesh together and the Government will respond, as I said in the previous answer.

[Lord Lansley (Con)]

My Lords, I was responsible in the other place for the passage of the Bill on transparency of lobbying, et cetera, because Nick Clegg, then the Deputy Prime Minister, did not want to be responsible for it, although it was a coalition Bill. Does my noble friend recall that the record of ministerial meetings published quarterly is not confined to consultant lobbyists and includes meetings that Ministers have with external organisations? That is the central mechanism by which the transparency is achieved in reality. Does my noble friend agree that, as long as Ministers are honest and open about their meetings, we can see who they are being lobbied by?

[Lord True (Con)]

My noble friend makes a very fair point and I pay tribute to him for taking up the work that he tells us Mr Clegg did not wish to take up. The transparency of publishing the details of Ministers’ meetings on a quarterly basis is important, and this is among the issues the Government are considering.

Dissolution and Calling of Parliament Bill

Lord Lansley Excerpts

Report stage
Wednesday 9th February 2022 Lords Chamber

[Lord Lansley (Con)]

My Lords, I have signed once more on Report this amendment, along with the noble and learned Lord, Lord Judge, and I entirely agree with what he just said to the House. That is partly in the light of the debate in Committee, which compellingly reinforced the need to send this issue back to the other place to be reconsidered, and for it to make the final decision, as the noble and learned Lord says.

I say to colleagues, not least on this side of the House, that the Conservative Party’s manifesto in 2019, which we are implementing, said:

“We will get rid of the Fixed Term Parliaments Act.”


This legislation, including Amendment 1, will do that. So the Conservative manifesto commitment will be met. The question, of course, is what we put in its place.

My noble friend on the Front Bench will have his chance to say so, but he has said that the purpose of the Bill is to restore the prerogative power, or the status quo ante. I have to say that it still feels like generals fighting the last war—they are fixed on the events of the autumn of 2019, and, as the noble and learned Lord, Lord Judge, has amply illustrated, we are not in the situation of the end of 2019 and we may never be again. If one looks at the events of the autumn of 2019, one sees that three times the Prime Minister sought a general election and failed to secure a two-thirds majority but in each case secured a simple majority. The proposition, which seems to be at the heart of the Government’s approach, is that this Bill prevents gridlock, but in my view a simple majority of the House of Commons would, in almost all circumstances, also prevent such gridlock.

More to the point, as the noble and learned Lord, Lord Judge, said, is the question that the other place has to answer: should this once again be an executive decision of the Prime Minister of the day, regardless of the view of the House of Commons? I will not go on at length, but I repeat my view that the Prime Minister exercises the responsibility to request a Dissolution by virtue of the fact that he or she commands a majority in the House of Commons. If a Prime Minister loses the confidence of the House of Commons, by what right do they go to the palace and seek a Dissolution? In the circumstances in which a Prime Minister loses the confidence of his or her own party, and of the House of Commons by extension, there may be, and often has been in the past, an opportunity for a new Administration to be formed who enjoy the command of a majority in the House of Commons. Under those circumstances, it seems to me that it would not be right to seek a Dissolution.

The noble and learned Lord referred to what Mr Rees-Mogg said. I am a former Leader of the House of Commons and I believe that the job of the Leader of the House of Commons is to explain the Government’s thinking to the House and explain the House’s thinking to the Government. On this occasion, the latter did not happen. The House was not in a mind to have a Dissolution and an election and I do not think that the Leader of the House was reflecting any view in the House of Commons to that effect. It was, therefore, a threat—an unconstitutional threat, since the Fixed-term Parliaments Act currently applies and such a threat could not be given effect unless and until this legislation passes into law.

My point is that we should give an opportunity not to restore the prerogative in the form in which it existed in the past but to qualify it by reference to what is the reality of our constitution—that sovereignty rests in the sovereign in Parliament, that that must be reflected by a majority in the House of Commons and that therefore a request for an election should be backed by a simple majority in the House of Commons. Anything other than those circumstances would be an illegitimate request and contrary to the view of Parliament.

[Lord Grocott (Lab)]

My Lords, I mentioned in Committee and I mention again to the House now that I have always been a strong critic of the Fixed-term Parliaments Act and I was pleased when the Government decided to do away with it. But I find myself in a strange position now of being pleased that they have introduced the Bill but disappointed with it, because it is a messy and—for the reasons that the noble and learned Lord, Lord Judge, said—counterintuitive solution, in that it is moving power back to the monarch. It is a messy solution to a problem that was particular, in most respects, to the 2017-19 Parliament and which, as the noble Lord, Lord Lansley, said, we are now trying to repair or prevent from happening again.

My message is simply that the shenanigans of the 2017-19 Parliament were a result, more than anything else, of the 2011 Fixed-term Parliaments Act, which this Bill will repeal. We need not worry about that kind of problem again because it is incredibly unlikely—impossible, I would say—that we will see those sets of circumstances recurring. Of course, the main reason why the Government could not get a majority for a general election—a facility that I strongly believe should be available to a Government—was the requirement for a two-thirds majority. On each occasion when Boris Johnson went to Parliament and asked for a majority, it gave him one, but not a two-thirds majority.

The solution being offered by the noble and learned Lord, Lord Judge, is beautiful in its simplicity. It solves all the problems with one mighty bound. The main problems of this Bill—or rather, the problems that it does not resolve—are the possible interference by the judiciary, the possible politicisation of the role of the monarch and the argument that we can all have about what the Dissolution principles should be, which a lot of the debate in the Joint Committee was about. With one mighty bound we are free, if we say that you need a majority in the House of Commons. It prevents—for ever—any possibility of the monarch again being involved in this most political of decisions and of saying to a democratically elected Prime Minister, “No, sorry, I’m the monarch; you think you should go to the people, but I’m telling you that you can’t.” It is inconceivable that that could happen and, if it did, it would be a constitutional crisis of a magnitude that we have not so far seen. You get rid of all that area of debate and problem. You also get rid of this ugly ouster clause, to which we will come in a moment. The courts are kept out of it because no court is going to challenge a majority verdict of the House of Commons. With a simple majority in the House of Commons, it is job done. The courts and the monarch are out of it.

Dissolution and Calling of Parliament Bill

Lord Lansley Excerpts

Committee stage
Tuesday 25th January 2022 Lords Chamber

I support the approach from the noble Lord, Lord True, that the main objective should be making this Bill as clear and watertight as possible. That is one of the principles that should underpin all the considerations we have about amendments. The Constitution Committee, which I chaired until very recently, said that constitutional legislation should be able to pass the test of time. Clearly, the Fixed-term Parliaments Act was never going to do that, and I think many of us saw that from the outset. Certainly, when we are looking at this legislation, be it on certain other clauses—Clause 3, for example—or indeed the points that have already been made by the noble Lord, Lord Norton, I think that the purpose of our deliberations from now on should be to make sure that there are no loopholes whatever in this legislation so that it can pass the test of time.

[Lord Lansley (Con)]

My Lords, I am very pleased to contribute to this debate. I signed Amendment 3 together with the noble and learned Lord, Lord Judge, and other noble Lords.

I do not come to this as a constitutional expert—far from it—but I think I bring to it two objectives. One is to think about it from the practical, political point of view. In this House we have encountered, and will continue to encounter, the prerogative power being increasingly clarified by statute. I start with that point, which I think the noble and learned Lord, Lord Judge, referred to. When we see the prerogative being clarified by statute, my view is that we should try to make it a watertight statute. We should try to make it absolutely clear. In this particular respect, we are looking at something that is clear only in so far as it reasserts that there is the status quo ante. However, the status quo ante itself is not necessarily clear. We have a set of principles which—as we have discovered, and I have discovered, by listening to the debates and reading them in the other place—are themselves debatable about how they would be applied and in what circumstances they would be applied. Even in the first debate this afternoon, we heard the assertion that it would be inconceivable for the monarch to refuse a request for a Dissolution but equally, there may be circumstances in which such a request may be refused, otherwise what is the point of calling it a request?

It is not certain. My view is that when we encounter prerogative whether we were debating the Trade Bill and looking at the prerogative to make treaties—I have a Private Member’s Bill which would clarify in statute the circumstances in which the Government could enter into a prolonged and substantial armed conflict or declare war—or here, I think we should be prepared to be more specific about the circumstances in which this prerogative is to be used.

I come back to the practical and political. First, there is a manifesto commitment. The Conservative manifesto said:

“We will get rid of the Fixed Term Parliaments Act”.


Amendment 3 also enables that to happen. That is not the issue.

Secondly, the Joint Committee put forward the proposition that constitutional change should secure

“as wide a degree of cross-party agreement as possible”.

My personal view is that Amendment 3 would enable that to happen. It is supported by parties in this House. Although it will not commend itself to my noble friends on these Benches, it would be supported by the Scottish nationalists, who are not represented here; they said so in the other place. However, I was rather disappointed that when the Government responded to the Joint Committee, they did not address that point; they did not say that they were looking to secure as wide a degree of cross-party support as possible.

What we have to do, which the Joint Committee asked for, is expose the Bill to the fullest possible scrutiny. Looking at the debate in the other place, I do not think that this issue, which seems central, received that, so I am pleased that we are giving it an opportunity to be thought about very carefully.

I recall that the Fixed-term Parliaments Act and its implementation fell down on the two-thirds majority. We should remember that there were three occasions in 2019 on which a Motion was presented in the other place and secured a simple majority but not a two-thirds majority. That immediately begs the question: was that the extent of the problem? Certainly, a simple majority enables us to start to think about how crises should be resolved and by whom, but it is that fundamental point about “by whom” that I come back to. The noble and learned Lord, Lord Judge, put it extremely well, but I shall put it in my own terms.

If a Prime Minister were requesting a Dissolution of Parliament and calling an election in circumstances where that would not be supported by a majority in the House of Commons, on what authority would he or she be doing that? If people cannot tell me what that authority is, we should put into the statute now that a Prime Minister should act with such authority. In all normal circumstances, based on our past experience, a Prime Minister will command a majority in the House of Commons and be able to secure a simple majority for such a Motion, and they would be able to have a Dissolution of Parliament at a time of his or her choosing.

However, I do not think that we can turn the clock back to past conventions and assume that they will be readily or easily applied to future circumstances. For example, coalitions have happened and may do so again, and they may be quite complicated. If we were in circumstances where a Prime Minister did not have a majority based on his or her own party and we were in the relatively early stages of a Parliament, by what authority would they circumvent the fact that an alternative Government was available?

[Lord Sherbourne of Didsbury (Con)]

Perhaps I may ask my noble friend about a situation where there was a hung Parliament, where the Prime Minister had no majority—we have had that experience very recently—where a pandemic was taking place and where the Opposition did not co-operate in passing laws. Surely then it would be right for the Prime Minister to seek the consent of the country.

[Lord Lansley (Con)]

There are many circumstances in which crises can emerge. There are arguments that cut both ways. In the midst of a pandemic, does one want an election? In the midst of a war, does one want an election? We could go back to 1940 and say, “Surely, if the Prime Minister then, Neville Chamberlain, had sought a Dissolution, why would he not have been granted it? Would it have not been right for the electorate to say what the outcome should be?” My response to my noble friend would be to ask whether in those circumstances it would not be the responsibility of the House of Commons, and whether it did not have the authority to resolve that crisis. If the answer we come to is, “Oh, but, but, but…”, there are all sorts of circumstances and hypothetical scenarios that we can conjure up which would lead us to the assumption that the Prime Minister can go to Her Majesty or the monarch and request a Dissolution, but the House of Commons would not support it. I come back to the same question: by what authority does the Prime Minister make such a request? I support the amendment and have put my name to it because it brings us back, time and again, to precisely that point.

Professor Robert Hazell put it more elegantly when he gave evidence to the Joint Committee:

“The best way of protecting the monarchy is not to revive the prerogative power but to leave decisions about Dissolution where they belong—in Parliament, in the House of Commons.”


This amendment does that in the simplest and most effective way possible by making it certain that if a Prime Minister requested a Dissolution in future, he or she did so on the basis that a majority of the House of Commons had agreed. If not, by what authority would he or she do it?

[Lord Beith (LD)]

This is an issue which divided the Joint Committee. The view expressed by the noble and learned Lord, Lord Judge, was the view of a minority of the committee of which I was a member, whereas the majority did not want to go into this territory. We had a great deal of discussion about it, but the report records, unusually, that there was a clear difference of view.

I support the idea that there should be a House of Commons vote. Even though I previously supported ensuring that the prerogative power remained a personal prerogative, partly in case this amendment was not carried but also because the two are not inconsistent with each other, it would be even more inconceivable that the monarch should refuse a Dissolution if it had the clear authority of the House of Commons behind it.

A further benefit of having a House of Commons vote on Dissolution is that it makes it quite clear the ouster clause that we will debate later would be unnecessary. The courts would not interfere with a decision taken by Parliament. We can return to that topic later, but we might as well put it on the table now, because it is a powerful argument for having a House of Commons vote. I therefore support what has been said by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lansley.

There are circumstances in which a Prime Minister might be told that it would be embarrassing for the monarch to have to be asked because a Dissolution might be refused. That would include a re-run of an election that had just taken place. Let us imagine a situation where one party is known to have substantial resources and seeks a re-run of the election, because it is just about the largest party but does not have a majority. There are a variety of such circumstances. In their response to the committee, the Government quite sensibly said that it was impossible to speculate—I am not quoting exactly—about the many different possible situations that could arise, and it is not very fruitful to do so. We merely recognise that there are possibilities.

While so much is said about the failings of the Fixed-term Parliaments Act—I know that it has faults, but the two-thirds majority issue was probably the only significant fault in the legislation—we have to recognise that most democracies in any way comparable to ours have a fixed term for Parliament and that the Joint Committee said:

“The Fixed-term Parliaments Act very clearly fulfilled its immediate political purpose. Not only did the Parliament last the full term, so did the Coalition Government that was formed at the beginning of it.”


I simply say to the other parties that they should be careful what they wish for. The time may come when they seek to form a Government with others and both sides need some guarantee that the Government will not be torpedoed early in its existence.

--- Later in debate ---

[Lord True (Con)]

My Lords, I am coming on to that, as I just said to the House I would. You can look at those circumstances in different ways, I would submit. Perhaps I will deal with that and then go on to the other point.

The Government had effectively lost the confidence of the Commons on the central purpose of its being, which was to deliver the referendum result on a key European policy. As the noble Lord opposite says, they tried to call an election three times, and three times the Commons refused to grant one. Why did the other place refuse to grant one? I cannot remember which noble Lord it was who said in the debate that it was because the leader of the Opposition sat on his hands and decided to prevent an election taking place. The noble Lord said he would not have done, but he did—three times.

The votes for dissolution were 298 on 4 September, 293 on 9 September, and 299 on 28 October. On every occasion they fell short of a majority. The Labour Party cast its vote to secure what it manifestly wished to do, which was to prevent the Prime Minister going to the country. Three times Mr Corbyn was presented—like Caesar on the Lupercal—with the crown of the election that he could have had the following day, on 4 September, 9 September and 28 October, and he declined.

The noble Lord suggests that of course if they had known there would be an election, the Opposition would never have sought to vote against it. By sitting on their hands, the Opposition defied the people and did not have an election.

[Lord Lansley (Con)]

My noble friend must address the point. The point is that if the requirement were not what the Fixed-term Parliaments Act required but a simple majority on a Motion in the House of Commons, the Prime Minister back in October 2019 would have secured a simple majority and got his election.

[Lord True (Con)]

My Lords, there is a conditional in that: a “would”. I believe that people must be presumed to intend the consequences of their own actions, and the consequence of Mr Corbyn’s actions was to thwart a general election three times. The figures I have given to the House are there in the book.

I want to move on because the noble and learned Lord, Lord Judge, in the gravamen of the argument—although I think the matters I have covered are a flaw in it—used the argument, which I think was taken up by my noble friend Lady Noakes, that the votes of millions of people should not be overturned by Dissolution. A number of noble Lords have addressed this. By implication, the noble and learned Lord argues, per contra, that the chance to vote for millions of people should be denied by a vote of the House of Commons. It seems to me an extraordinary concept that a House of Commons that does not wish to go should, in his words, prevent or overturn the votes of millions. I respectfully disagree. I think the noble Baroness, Lady Taylor of Bolton, who chaired your Lordships’ Constitution Committee with distinction, put some political practicality into the equation, as did the noble and learned Lord, Lord Brown of Eaton-under-Heywood. This is very serious. I simply do not accept the argument that the noble and learned Lord, Lord Judge, put forward.

A simple majority vote, for the reasons I have given, would not necessarily prevent deadlock in certain conditions—my noble friend Lord Sherbourne of Didsbury spoke to this—such as when the Government of the day held only a small majority, no majority at all or depended on a small party with a particular regional or country-specific interest. The procedure that is proposed would, in my submission, fail the test of clarity and the absence of loopholes, as the noble Baroness, Lady Taylor of Bolton, put to us. The Joint Committee itself noted on the matter of a vote in the Commons before Parliament was dissolved, that, “The majority”—there were conflicting views, as the noble Lord, Lord Beith, put to us—

“considers it a change which would only have a practical effect in a gridlocked Parliament, which could mean denying an election to a Government which was unable to function effectively, and which might therefore be counter to the public interest.”

I agree with the submission of the majority that this would be

“counter to the public interest.”

In short, far from making things simple, the very thing that the noble Lord, Lord Grocott, said he wished to achieve, it could still lead to stasis.

The most detrimental aspect of a vote in the other place, and potentially allowing that to be used to frustrate an election, is that general elections are sometimes called when the existing Parliament has proven to be unviable. The statutory requirement for a vote in the other place would only compound that problem, and in such a case, as we have discussed or I have submitted, with part of his own party potentially voting against a Prime Minister—circumstances that the noble Lord, Lord Butler, suggested could happen—even a simple majority would be too high.

Past Governments, and potentially future Governments, have often worked within turbulent political and economic contexts, trying to deliver ambitious and significant agendas and sometimes with small majorities. It is in these circumstances, above all, that the flexibility of the system which the two major parties in this country pledged to revive and which we are seeking to revive through this Bill matters most. In these scenarios, a Prime Minister should be able to be decisive and request a Dissolution to try to resolve a parliamentary stalemate or test their mandate to govern.

My noble friend Lord Lansley asked by what authority a Prime Minister might act. I think my noble friend and learned friend Lord Mackay of Clashfern answered that. The Prime Minister, acting as the Sovereign’s principal adviser, is able to request a Dissolution by virtue of an ability to command the confidence of the other place. In the case of a minority Government or a confused House of Commons, the agreement to a Dissolution might be difficult to secure—as it proved three times in 2019. I submit that not many new MPs—some noble Lords have been slightly disrespectful of what might be the motives of people in another place—would rush to face the electorate in a matter of months if given the chance to have a say.

It is by no means certain, as noble Lords have suggested, that past minority Governments would have secured opposition support for an election had this system operated. I agree with the powerful interventions of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and my noble friend Lady Noakes on this point. Some noble Lords seem to forget the experience of 2017-19. A vote in the House of Commons might have meant other minority Governments and similar ones having to limp on like that one, unable to deliver their priorities. The revival of the prerogative power to dissolve Parliament is, in our submission, the most effective way for a Government to be permitted to put important questions to the people, resolve stasis and secure the mandate to govern effectively. It is a system of constitutional practice that has worked; I urge noble Lords not to seek to add complexity where previously, before 2011, there was none.

I must address briefly the amendment in the name of the noble Lord, Lord Wallace of Saltaire. It would go further in the development of a statutory process by making express provision that, when Parliament stands prorogued, a Dissolution cannot be sought. The amendment seeks to set a condition that a Parliament must be “recalled”—or rather summoned—for the purpose of the passage of a Dissolution approval Motion.

Prior to the Dissolution of Parliament, a short Prorogation may be necessary to allow the swift conclusion of business; of course, it should be as short as possible. This has happened on several occasions, most recently in 1992, 1997, 2005 and 2010. In 2010, Parliament was prorogued from Thursday 8 April until Monday 12 April, whereupon Dissolution was proclaimed. Among other things, this enabled the general election to take place on a Thursday, as has been usual practice. Although the concepts of Prorogation and Dissolution may be superficially similar in that they are both prerogative acts, as the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, they are distinct. Prorogation is the formal ending of a Session; Dissolution provides an opportunity for the electorate to give their verdict.

I have heard the arguments in favour of a Commons vote on this matter in the circumstance of a Prorogation also but, respectfully, the Government believe that this is undesirable and risks repeating some of the worst aspects of the 2011 Act. In our submission, providing for the requirement that a prorogued Parliament must be summoned serves only to build in additional delay and undermine the ability of the Prime Minister to act decisively. The risk that the noble Lord alluded to in seeking to strengthen the role of the Commons raises that fundamental question: who should be the ultimate judge on the Government’s decision to call an election? As many noble Lords have said, the answer is clear: the electorate. As the Joint Committee said, they are

“the ultimate authority in a democratic system”.

Like my noble friend Lord Sherbourne of Didsbury, I simply do not understand the idea of a rogue or outrageous Dissolution because it is the fundamental act of humility by the Executive to place their future in the hands of the electorate, who should be the final arbiter of whether a Prime Minister has called an election legitimately. I acquit the noble Lord, Lord Wallace of Saltaire, of this but I have found it strange to hear noble Lords say that they want to repeal the FTPA but return to some of the worst aspects of it. I think that there is a further complication in what the noble Lord suggested.

I am sure that the House wishes to move on. We will have further opportunities in the debate on the next group to discuss sovereignty and controls on Parliament, but I ought to say in preamble that noble Lords have suggested that a Commons vote increases parliamentary accountability and acts as a check on the Executive. It is not our view that the prerogative system diminishes parliamentary sovereignty and the Executive’s accountability to Parliament. Rather, by reviving the prerogative powers, we are restoring the link between confidence and Dissolution. If a Prime Minister loses the confidence of the elected House, they can either resign, seek a Dissolution or seek to recover the confidence of the House. The other place has the nuclear option of a Motion of no confidence and a plethora of means of holding the Executive to account. It does not require further prescriptive statutory measures to do so effectively.

Notwithstanding the gentle chiding of the noble Lord, Lord Newby—I am grateful to him for taking the time, or wasting it as he seemed to argue, to read the letter that I sent to noble Lords—I ask your Lordships to consider carefully the potential, unknown, long-term consequences of this amendment, which flow out of some of the problems that we have discussed in this debate. A vote in the Commons would disrupt the equilibrium in finely balanced, historical constitutional arrangements and could have an impact on the role of the sovereign. In reviving the prerogative power to dissolve Parliament, the Government have clearly acknowledged that this power is exercised by the sovereign on the request of the Prime Minister, as we discussed in the first group.

Northern Ireland: Supply of Medicines

Lord Lansley Excerpts

Thursday 9th December 2021 Lords Chamber

[Lord Frost (Con)]

My Lords, we would love to find an agreement if one were available. We think that the proposal that we made to take medicines out of the protocol entirely would be the simplest way of solving this problem, but we continue to look at the proposals that the EU has put on the table. At the moment, we do not have the necessary detail or understanding of the texts to enable us to accept these proposals, but we continue to talk.

[Lord Lansley (Con)]

My Lords, does my noble friend agree that the simplest and probably best solution would be if there were mutual recognition between the United Kingdom and the EU of the authorisations of the European Medicines Agency and our MHRA? That would be a bilateral, trade-related solution that would also serve the needs of Northern Ireland.

[Lord Frost (Con)]

My Lords, that might indeed be a solution; it has not been part of the discussions so far, and I think that the regulators on both sides guard their discretion closely and the ability to proceed at the speeds that they think best, as we have seen this year on vaccine licensing.

Dissolution and Calling of Parliament Bill

Lord Lansley Excerpts

2nd reading
Tuesday 30th November 2021 Lords Chamber

[Lord Lansley (Con)]

My Lords, I am very glad to follow my noble friend and like him, of necessity, I come to bury the Fixed-term Parliaments Act, not revive it. It has been a privilege to listen to so many excellent speeches this afternoon, not least the maiden speech of my noble friend Lord Leicester. As a fellow East Anglian, I too have much enjoyed visiting the Holkham estate in years past. We look forward to his contributions here as well.

As we get towards the latter stages of this debate, I have reached three hesitant conclusions for Second Reading, which should take us towards thinking about the Bill further in Committee. If the Government believed that the prerogative was in abeyance, they should simply have repealed the Fixed-term Parliaments Act. Lo and behold, the personal prerogative of the sovereign would be revived in the way that it existed previously. Clearly, they did not believe that, which is why we have the legislation in the form that it is rather than a simple repeal. Therefore, we must conclude that we are seeking to set statutory provisions around a defined personal prerogative of the sovereign. We all want the personal prerogative of the sovereign to be responsible for the Dissolution of Parliament and to be untrammelled and not interfered with, but equally we want it to be so precisely delineated that the sovereign is not drawn into political controversy as a consequence.

My reason for participating in this debate is that we looked at the question of the prerogative at length during debates on the Trade Act. The position I come to it from is this: every time Parliament comes into contact with the prerogative in statute, we should not necessarily abolish it because, as with the Trade Act, we may think it quite right for there to be an executive responsibility, but we then have to make it accountable. So my second conclusion is that, here we are, putting a statute in place to govern the exercise of a prerogative—particularly the exercise of it by the Prime Minister, of course, rather than the monarch—and we should hold the Prime Minister accountable to Parliament, because that is where the authority comes from. We have to defend the sovereignty of Parliament.

Therefore, what does that accountability look like? It ought to be a simple majority of the House of Commons. We can dispense with some of the more unhelpful arguments about the Fixed-term Parliaments Act and the supermajority. We will not go back to gridlock as a consequence of that because there is no supermajority. A simple majority gets us to precisely the position that we want—namely, where a Prime Minister who has a majority in the House of Commons will get his or her way, and that should be the case. However, we also have to say that if a Prime Minister has not got a simple majority in the House of Commons, they should not necessarily get their own way. Therefore, my third conclusion is that we should put such a simple majority into the Bill.

I encourage noble Lords not to think about the last coalition, which I think history will treat more kindly than it has so far, but to think forward to the next one. Let us imagine a day when there is a coalition where the Prime Minister comes from a party that has significantly less than a majority in the House of Commons but has created a coalition. Should that Prime Minister be able to go to the palace and ask for a Dissolution without any scrutiny whatever? Would this not be an abuse? Is it not essential that any such coalition in the future—we have to anticipate that there may be such a thing—would have to re-enter exactly this territory? Would we not future-proof the Bill if we put a simple majority in the House of Commons into it? Would we not create the constitutional environment in which a coalition could be formed if needed? Coalitions ought to be about exactly that kind of situation; otherwise, I do not think that we have properly done our job in anticipating the circumstances that this legislation may pertain to and preparing it for that possibility.