Procurement Bill [HL]

Debate between Lord Moylan and Baroness Noakes

Report stage
Monday 28th November 2022 Lords Chamber

[Baroness Noakes (Con)]

My Lords, Amendment 9 amends Schedule 2 in relation to exempted contracts. Specifically, it seeks to modify how vertical contracts and horizontal arrangements are allowed to qualify as exempt contracts. I thank my noble friend Lord Moylan for adding his name to the amendment. I should explain that this amendment is in splendid isolation in a group all of its own because I thought that the previous group, which took rather a long time, covered rather too many matters and that the issue I am going to raise would have got lost in it. I apologise for pulling it out separately.

I was prompted to table the amendment by a briefing from the Local Government Association. From our proceedings in Committee, I think that I am in the minority among those who have been following this Bill in that I do not have an association with the Local Government Association to declare because I am not a vice-president or one of those things. However, I did recognise that the point raised by the Local Government Association was important and valid, and that is why I have tabled this amendment, and indeed amendments in two other groups that we will consider on Report.

Before I started on this Procurement Bill, I had little technical knowledge of the vast edifice of EU procurement rules, and I had never heard of the Teckal exemption or, indeed, the Hamburg exemption, which deal with vertical and horizontal arrangements respectively. Those arrangements allow contracts within or between local authorities to be exempt from procurement rules. I now know that these exemptions from the need to engage in competitive procurement processes are important for well-established ways of delivering local authority services. I am generally a competition fanatic, but I can see eminent sense in allowing local authorities to organise themselves internally or in collaboration with other local authorities in a way that delivers services to their local communities without dragging in the full force public procurement rules.

The problem lies in sub-paragraph (2) of paragraph 1, which states that a contract cannot be exempt if the relevant goods or services

“could reasonably be supplied under a separate contract”.

I am advised that this test is not currently part of establishing whether the Teckal or Hamburg exemptions apply under the existing body of procurement law under the EU, so it appears that, in reformulating EU rules for the purposes of the UK in this Bill, we seem to have opened up a new source of challenge for local authorities that want to use the vertical or horizontal arrangements. I cannot see why the Government would want to create by this Bill new barriers for local authorities in areas where services have been delivered successfully over a long period. So my Amendment 9 seeks to exclude the application of sub-paragraph (2) to vertical contracts and horizontal arrangements under paragraphs 2 and 3 of the schedule. It would leave the reasonableness test in place for all the other contracts dealt with in Schedule 2 but would allow local authorities to continue with their internal structures and their cross-authority collaboration arrangements unhindered. I beg to move.

[Lord Moylan (Con)]

My Lords, I am pleased to have added my name to this amendment in the name of the noble Baroness, Lady Noakes. I would like to start by thanking my noble friend the Minister for all the hard work she has done to bring us this far, and for her sympathetic approach to the House. I would also like to thank her for something that I had not expected to see on the part of the Government. The process of drafting legislation is normally arcane and obscure—it is carried out by civil servants and parliamentary draftsmen before anything ever reaches us. But in this case, in this rare Bill, we have actually seen the legislation being drafted, and redrafted, and redrafted further, time and time again, as it progresses with literally hundreds of government amendments. It has been very difficult to follow what is going on, but illuminating as to how laws are actually made—something which I think Bismarck said the public “should never see”, if that is helpful advice to my noble friend.

In Committee, I gave an example of how the Teckal exemption works and how I had experienced it myself during my many years in local government. The Teckal exemption is the EU legal name for the vertical exemption, where local authorities or public bodies come together in order to establish a subsidiary, controlled entity; and there are rules and limits as to what it can do outside—percentages of work and effort and so on—that show whether it qualifies for that exemption so that the local authorities in question do not have to tender it publicly.

There are further examples that I did not mention in relation to horizontal relations between public bodies and local authorities. I find myself, quite by chance, sitting within a foot or two of the noble Lord, Lord Greenhalgh, who had the privilege and honour of being the leader of Hammersmith and Fulham Council in the past, when I had a modest role to play at an adjacent local authority. One of the things we did was to come together to share many of our services, between ourselves and in some cases with a third local authority.

That was an example of horizontal collaboration so that, for example, highway services, library services and things of that sort became shared. I simply say to my noble friend that I think this collaboration would be ruled out under the reasonableness test. Let us say that you are a local authority wishing to share services—or contract services, in some cases—with the local authority to your west. It is, of course, reasonable that the local authority to your east—assuming that you are not entirely surrounded by one local authority—could equally well provide those services. This is not simply about the private sector being an alternative to collaboration; it would be reasonable for another local authority to provide those services rather than this one. If that was the case, you would be stymied; you would not be able to do it without having a tendering process.