Economic Activity of Public Bodies (Overseas Matters) Bill

Debate between Lord Purvis of Tweed and Baroness Neville-Rolfe

Tuesday 7th May 2024 Lords Chamber

[The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)]

I thank the noble Lord, Lord Collins, for his comments. I feel a bit left out as the only person who has not been to Palestine or Israel. I was due to go on 7 October. As we have discussed, this amendment would remove Section 37 from the Bill so that Ministers could by secondary legislation allow public authorities to carry out their own boycott campaigns against Israel, the Occupied Palestinian Territories and the occupied Golan Heights. I am keen to make progress on our line-by-line consideration of the Bill, but I think I should briefly repeat that this legislation has three objectives: first, to uphold the integrity of British foreign policy decided by the Cabinet collectively on advice from the FCDO and others; secondly, to enable public authorities to focus on their core functions when delivering for the public on investment and procurement and to avoid damage to community cohesion; and, thirdly, to prevent the most divisive of these campaigns by public authorities which target Israel in particular and promote anti-Semitism in the UK.

We have seen the disturbing things happening in our universities today, with Jewish students not feeling safe, and what has happened in some local authorities in recent years. Our manifesto commitment and this Bill seek to address one aspect of the current troubles, including divestment campaigns. We need to find a way through. I am grateful for the suggestion of meetings between now and Report.

This amendment introduced by the noble Lord, Lord Warner, would allow Ministers to negate by secondary legislation the key objective of our primary legislation. That would not be right. We have heard from the Jewish Leadership Council and the Board of Deputies of British Jews, mentioned by my noble friend Lord Leigh, about how the BDS campaign singles out the world’s only Jewish state for unique treatment, and we heard in the Public Bill Committee of the distress felt by the Jewish community when Israel is targeted in such a manner by public authorities that, it seems to it, in no other case attempt to pursue foreign policy. These anti-Israel BDS campaigns do very little to promote peace in the Middle East, while sowing division and distrust in the UK.

I want to take the opportunity of our discussion of international issues to return briefly to the question raised earlier by the noble Lord, Lord Purvis. He asked whether public authorities would make the judgment of whether a procurement or investment decision risked putting the UK in breach of international law. Public authorities would make that judgment. They would need to do so to the existing legal standard of reasonableness and would be subject to the enforcement powers in the Bill if they did not. I have committed to taking away and considering carefully the points made about international law today, and I look forward to returning to that issue on Report.

Let me return to my overall case. The purpose of Clause 3(7) is to give Parliament the ability to scrutinise a future ministerial decision that would reverse a core objective of this legislation. Such a decision could have a very harmful effect on community cohesion while doing very little to advance peace and security in the Middle East. The amendment would allow Ministers to use secondary legislation to negate the key objectives. That would undermine parliamentary sovereignty. Should a future Government wish to allow such campaigns by public authorities, they should go through the same legislative scrutiny that this Government are going through to prevent them. The Government have ensured in the Bill that the scope of delegated powers is appropriately limited and that the core of the Bill cannot be altered by statutory instrument. In addition to this clause, we have limited the ability of the Secretary of State to remove local authorities, UK and devolved government Ministers and local government pension schemes from the scope. I also want to highlight that we have not received any challenge from the Delegated Powers and Regulatory Reform Committee with regard to the Bill.

We should be in no doubt that preventing BDS campaigns by public authorities against Israel, the Occupied Territories and the occupied Golan Heights is a core part of the Bill. This is due to the impact that such campaigns can have in contributing to and legitimising anti-Semitism, as highlighted by the noble Baroness, Lady Noakes.

However, it is important to note that nothing in the Bill changes our foreign policy in regard to these areas. We do not recognise—I emphasise this—the settlements as part of Israel. Our position is reflected in our continued support for UN Security Council Resolution 2334. The Government’s position is that the Bill is in compliance with that resolution. My noble friend Lord Wolfson explained well why this is the case, and why Israel can, and should, be treated differently, reflecting the way that it is often singled out for unique treatment by many others.

[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for giving way. She is responding very carefully to this debate. It is the Government’s position that the Occupied Palestinian Territories are a separate legal entity that the Government of Israel do not represent. Indeed, the UK has its own direct bilateral relationships with the representatives of the Occupied Palestinian Territories. Have they asked for the particular protections under this clause?

[Baroness Neville-Rolfe (Con)]

My Lords, our position on the Middle East peace process, which I am not sure entirely answers the noble Lord’s question, is that we support a negotiated settlement leading to a safe and secure Israel, living alongside a viable and sovereign Palestinian state, based on 1967 borders with agreed land swaps, Jerusalem as the shared capital of both states, and a just, fair, agreed and realistic settlement for refugees.

My noble friend Lord Ahmad updated the House earlier on Gaza. The Prime Minister has told Prime Minister Netanyahu and regional leaders that we are deeply concerned about the prospect of a military offensive in Rafah. The immediate priority must be a humanitarian pause in the fighting, which is the best route to secure the safe release of hostages and significantly step up aid to Gaza.

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[Lord Purvis of Tweed (LD)]

I am grateful to the Minister for giving way. With respect, she has not answered my question. The Government do not recognise the Government of Israel to represent the Occupied Palestinian Territories in our discussions with their representatives. I ask in clear terms, since we are at the stage in this legislation where it has to be crystal clear, have the representatives of the OPTs requested the protections under the Bill in this clause?

[Baroness Neville-Rolfe (Con)]

I am clear that the Occupied Territories are separate. I think that that three-quarters answers the noble Lord’s question but let me reflect further. I certainly would not want to mislead him on such an important point.

Economic Activity of Public Bodies (Overseas Matters) Bill

Debate between Lord Purvis of Tweed and Baroness Neville-Rolfe

Committee stage
Tuesday 7th May 2024 Lords Chamber

[Baroness Neville-Rolfe (Con)]

I do not think there is a difference between us and the FCDO. If I may, I will move on to the other amendments, because I am trying, as I always do, to answer the questions noble Lords have asked. There are a number of different amendments in this group, and I think we should look at them in the round. I will turn to Amendments 18, 28 and 29.

I will start with Amendment 28, which is a probing amendment tabled by my noble friend Lady Noakes, which would remove paragraph 6 of the schedule. She said that was a direct approach. I thank her, more generally, for her support for this legislation and for providing this opportunity to explain why this provision was included in the Bill. Paragraph 6 of the schedule makes an exception to the ban for considerations that a decision-maker in a public authority reasonably considers to be relevant to compliance with the UK’s obligations under international law.

Amendments 29 and 18, as the noble Lord, Lord Verdirame, has explained, would remove the existing exception and replace it with a narrower exception that would only allow public authorities to consider international law in a way that is influenced by moral or political disapproval of foreign state conduct, in line with regulations made by the Secretary of State. I would like to thank him, and my noble friend Lady Noakes, and the noble and learned Lord, Lord Etherton, for raising this matter. I acknowledge the noble Lord’s and my noble friend’s valuable expertise in this area— of course, they have the support of the noble Lord, Lord Pannick, who is not in his place, my noble friends Lady Altmann and Lord Wolfson.

There are very limited examples of when this clause might be relevant to public authorities, such as when abiding by sanctions under international law. It is therefore intended as a safeguard. I appreciate the noble Lord’s concern that public authorities could make their own subjective interpretations of foreign policy that are not aligned with the foreign policy of the UK Government. This exception can only be exercised by public authorities in a way that is “reasonable”. It would be up to the enforcement authority, or the courts, to determine whether the exception was exercised reasonably.

However, I appreciate noble Lords’ various concerns on this matter, including the impact on the courts, and the Government will consider these. We will no doubt return to the international law issue on Report. I thank noble Lords for their insightful contributions—

[Lord Purvis of Tweed (LD)]

Can I press the Minister on that? My understanding is that, under the Bill, in the absence of a Minister or the Government coming to a determination that international law has been breached, a decision-maker in a public authority can make the decision that there is the potential of a breach. Therefore, a decision-making body at the moment, for example—because Ministers are warning the Israeli Government that their actions in the West Bank and Occupied Territories are potentially in breach of international law—would be permitted under Schedule 6 to make a decision not to invest.

[Baroness Neville-Rolfe (Con)]

I am not sure that I entirely understand the noble Lord’s question, but I will reflect on it. We will come relatively shortly to a group that will look at these issues more broadly. If I am able to do so, I will come back to him at that point.

As I have already said, various concerns have been raised, which we will consider. I thank all noble Lords for their contributions. I say to the noble Lord, Lord Deben, that we value this House’s expertise, as I said at Question Time only last week. The Government will continue to think carefully about the important points that have been made. I hope the noble Lord will feel able to withdraw his amendment.

Ministers: Legal Costs

Debate between Lord Purvis of Tweed and Baroness Neville-Rolfe

Tuesday 12th March 2024 Lords Chamber

[Baroness Neville-Rolfe (Con)]

The statement the Secretary of State made this morning was full and clear. I have a great deal of respect for the Secretary of State. The action she took in the aftermath of 7 October was very understandable. We have now moved forward and resolved this. We should be caring about how we improve science and technology in this country.

[Lord Purvis of Tweed (LD)]

The Secretary of State told the Select Committee that she is now clear that she should have sent the letter privately. Was she advised by her officials working at that time of night that it would be appropriate to send part of it on X? If she was not then she was acting with her own personal judgment on the issue, so why is the taxpayer having to pay for that error?

[Baroness Neville-Rolfe (Con)]

I have explained the circumstances about why the taxpayer gets involved in legal expenses. I note the noble Lord’s point.

Nuclear Test Veterans: Medals

Debate between Lord Purvis of Tweed and Baroness Neville-Rolfe

Thursday 24th November 2022 Lords Chamber

[Lord Purvis of Tweed (LD)]

My Lords, I associate myself with the remarks of the noble Lord, Lord Coaker, and the very valid questions he asked. I welcome this move. It was a change of heart from the Government, but nevertheless a welcome move for those military and civilian personnel who served their nation and now will, finally, be properly recognised. Notwithstanding views about the weapons system itself, these people served their country and recognition—unfortunately, as the noble Lord indicated—has come too late for many. However, it will provide some comfort to their families that an often-disregarded service is now being recognised.

How many civilians will be eligible for recognition and the medal? On support, which the noble Lord asked so clearly about, in replying to questions on the Statement in the Commons, the Veterans Minister, Mr Mercer, indicated that pensions were available. But, of those who are eligible for pensions, what is the Government’s estimate of the proportion who are receiving them? Often, this is, in effect, an opt-in. There is the very valid point about promoting material through the various networks. Some of these veterans will be part of veterans’ associations and others will not, so how will the Government disseminate and promote this information?

My final question is on the indigenous communities in the areas where these tests took place. The indigenous communities in Australia did not voluntarily offer their land for British nuclear tests, and they too have been impacted. The Minister in the Commons indicated that the UK Government provided £20 million then to clear this up, but the legacy is much longer. I met with the acting high commissioner of Australia this week, and she raised with me the good work now being done with the new Prime Minister of Australia in seeking to enhance recognition of the indigenous communities. We can play our part with our allies and friends in the Australian Government by increasing our recognition of the impact on their communities of something that has made our country safer, as the Government say, but which has unfortunately made many of those communities less safe. So, what do the Government plan to do for the indigenous communities in places where these tests took place?

[The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)]

My Lords, as the noble Lord said, Tuesday’s announcement was a huge victory for the nuclear test veterans. Since the very positive announcement by the Minister for Veterans on Tuesday was taken as read, I will make three points by way of introduction before I answer the noble Lords’ questions.

As the noble Lord said, the UK undertook its first nuclear test 70 years ago and, in so doing, confirmed our country’s status as the world’s third nuclear power, which has helped to keep peace since World War II. Critical to the success were those who took part in our national testing programme. There is a direct line between their service all those years ago and the safety and security of our nation today, which becomes ever more important.

Secondly, in recognition of their service and the 70th anniversary, the Government are undertaking a wide programme of recognition to pay tribute to all service personnel, and civilians—that is so important—who took part in the testing programme in Australia, New Zealand, Fiji and Kiribati. We owe them a great debt of gratitude. The programme of recognition began this week with the UK Government’s first commemorative event at the National Memorial Arboretum, with the Prime Minister himself announcing the creation of a new medal for military and civilian participants in the testing programme. It was wonderful that Ministers, veterans and their families gathered at the arboretum to thank all those who were present and the families of those whom we have lost.

Thirdly, this has been a cross-party matter, as the Veterans Minister said in the other place. It is not only people like the Secretary of State for Defence who have been involved in all of this; so have Rebecca Long Bailey, John Baron and Sir John Hayes. People from across the parties have been involved, which is unusual and well worth celebrating.

Clearly, I am new to this subject, but I will try to answer all of the questions and I will follow up on those I do not. We will of course need resources to find who should be given the medals, and it is clear that the process has to get under way. I do not think we have given an estimate of the numbers, but we are keen to make this a success and look generously at who should be awarded.

The noble Lord, Lord Purvis, talked about pensions. The question was raised in the other place and the Minister for Veterans indicated that he would be writing on this issue. What I can say is that I will ensure that a copy of that letter also gets sent to noble Lords engaged in this debate, and I will try to add to the request the percentage of those eligible, which I think is an additional one. We will do what we can. It was quite a long time ago and it is often quite difficult to find answers to these questions, but we can certainly look at the pensions. Of course, veterans who believe they have suffered ill health due to service can apply for no-fault compensation under the war pension scheme, and more information is on the Veterans UK pages on GOV.UK, including specific guidance for the nuclear test veterans.

I was asked about plans for reviewing medals more generally, and I have to say that there are currently no plans to review the assessment process; it is a well-established process. The Advisory Military Sub-Committee is an independent committee; it has robust processes in place to review historic military medals and claims against the military medals framework.

Finally, I will say how important it was to acknowledge the indigenous populations, whose traditional lands and territorial seas were used for nuclear testing. As the noble Lord said, this has already been the subject of a £20 million ex gratia payment to Australia to help rehabilitate former lands and seas. I was very interested to hear about the discussions he has been having with the Australians, and I look forward to catching up further on that.

Greenhouse Gas Emissions: Developed Countries

Debate between Lord Purvis of Tweed and Baroness Neville-Rolfe

Monday 7th November 2022 Lords Chamber

[Baroness Neville-Rolfe (Con)]

In my experience, you can only get action, especially in an international context, if you have constructive discussion. In terms of our contribution, the UK spent £2.4 billion on our international climate finance between 2016 and 2020 on adaptation and investment in areas that needed to address loss and damage. The Scottish Government fund is £2 million.

[Lord Purvis of Tweed (LD)]

My Lords, there is no point in offering the least-developed countries support for loss and damage if our Government are removing funding from other areas of that community. For all the figures that the Minister has stated today from the Dispatch Box, how much is new money and how much of it is simply reallocated from the arbitrary cap of 0.5%?

[Baroness Neville-Rolfe (Con)]

We made very generous commitments to funding on climate change last year. We are sticking to those; the Prime Minister made it clear on the steps of Downing Street that he regarded protecting the environment as very important. Sometimes you change the priority which you give to different aspects of the climate change matter, but that is the way to move forward and do things better, and the announcements that have been made today are directed exactly at that. I am delighted at the progress that is being made today, but the question is whether the discussions will deliver what we want over the next two weeks. We look forward to reporting on that when COP 27 ends.

Procurement Bill [HL]

Debate between Lord Purvis of Tweed and Baroness Neville-Rolfe

Committee stage
Wednesday 26th October 2022 Grand Committee

[Baroness Neville-Rolfe (Con)]

My Lords, this group seeks to deal with amendments relating to treaty state suppliers. There are three minor government amendments either to improve the drafting or to ensure the proper functioning of the clauses, Amendments 438, 440 and 442. As the time is late, I will not go into detail, but I am happy to explain them to noble Lords on another occasion if they wish.

Amendment 436, tabled by my noble friend Lord Lansley, proposes that regulations could be made only in relation to agreements that had been laid before Parliament under the Constitutional Reform and Governance Act 2010. The use of regulations in the Procurement Bill in relation to implementing international agreements is limited to two circumstances. The first is to give effect to the procurement aspects of new trade agreements. For these, the Committee will know that treaties requiring ratification follow the established domestic scrutiny process set out in the CRaG Act. However, not all agreements will necessarily require ratification, and the amendment would place the implementation of such agreements outside the scope of this power. For the agreements that fall within the Act, the Committee will be aware that the Government have previously made commitments in our response to the International Agreements Committee, of which my noble friend is a prominent member, concerning the submission of international agreements to Parliament for scrutiny.

The second set of circumstances is to give effect to any changes to trade agreements over their lifetime. These are envisaged to be small technical changes, such as updating schedules following machinery-of-government changes or modifications to market schedules. In such circumstances, those more administrative matters may not trigger the CRaG procedures and, as such, the amendment would prevent them being implemented using this power. Any such updates and modifications would therefore require new primary legislation to implement, at a huge cost in time and resources. However, I reassure noble Lords that the Government intend to keep the relevant Select Committees aware of any changes during the life cycle of a free trade agreement.

Amendment 441, tabled by the noble Lords, Lord Purvis and Lord Wallace, seeks to provide that a contracting authority does not discriminate against a treaty state supplier if it takes into account environmental, social and labour considerations and indicates in the notice of intended procurement or tender documentation how such considerations are defined. The impact of this would be that a contracting authority could, within the rules, apply environmental, social and labour considerations in a way that breached a treaty state supplier’s entitlement to no less favourable treatment, and that would risk breaching our international obligations. For example, if a contract can be delivered remotely from an overseas base, our obligations to ensure no less favourable treatment for treaty state suppliers mean that it would not be appropriate for a contracting authority to require socioeconomic or environmental criteria that could not be performed from overseas. However, I assure the Committee that the Bill as drafted allows contracting authorities to include social, environment and labour considerations when setting award criteria, as long as they are non-discriminatory.

[Lord Purvis of Tweed (LD)]

I am grateful for that response. I struggle with the first part of what the Minister said because I lifted the wording from Articles 16 and 17 of the Australia agreement. If we have those obligations with Australia, how are we not able to provide that with all the other treaty state suppliers in the schedule where we do not have that language? Japan is lower than that, for example. I am struggling to understand why that would be the case. If she is reassuring me that the power provided by my amendment is already within the Bill, she has basically contradicted her own argument that we are not providing that to all the other countries. I do not understand.

[Baroness Neville-Rolfe (Con)]

The noble Lord’s question was why social considerations are not in the Japan agreement but they are in the Australia agreement. The answer is that every trade deal is unique. The noble Lord is trying to apply one principle to all trade deals.

[Lord Purvis of Tweed (LD)]

That is what the Government are doing. All the other requirements in the Bill are not in the trade agreements with other countries. That is the point that I was making. The Government are introducing a whole set of requirements under the Bill that are not in treaty obligations. I am just trying to say that it would be better if this were consistent.

[Baroness Neville-Rolfe (Con)]

The honest truth is that we seem to have a bit of a disagreement on this; maybe a bilateral discussion would be helpful. The noble Lord, Lord Lansley, also raised a question on which we should have a further discussion; I will write to him on that on the points he was raising. We had advice from the people involved in trade agreements in preparing our response.

[Lord Purvis of Tweed (LD)]

I am very grateful for that offer. I am very happy for it to be multilateral rather than bilateral if that assists the Committee. If the Minister wants to make officials available for the discussion, I will be happy with that, or she may want to write to me in advance of that. It will be helpful if she is able to write to Members before we have a discussion, so that we get a bit more information from the Government first. I will then be more than happy to have the discussions with her about this before Report.

Procurement Bill [HL]

Debate between Lord Purvis of Tweed and Baroness Neville-Rolfe

Committee stage
Monday 24th October 2022 Grand Committee

[Baroness Neville-Rolfe (Con)]

A chilling effect on corruption is obviously positive but a chilling effect on people being prepared to engage in government procurement is not, particularly smaller suppliers, which might be put off by some of these rules. That is why we brought in Schedule 6, which will bring a certain clarity. There may be some further discussions to be had on Schedule 7 and exactly how it works.

[Lord Purvis of Tweed (LD)]

I too welcome the Minister to her position. My question relates to a later group in which I have an amendment. Given that the Bill will allow for there to be no discrimination against any treaty-state supplier, how will a contracting body or procurement body operate under Schedule 7 for any of the suppliers from any of the countries with which we have a trade agreement? This comes back to the point made by the noble Baroness, Lady Noakes. It is not simply the case that businesses are going to have to work through Schedule 7 to satisfy all the grounds for this; they are going to have to do it with every single country with which we have an FTA for the suppliers coming from them. How is that making the job easier?

[Baroness Neville-Rolfe (Con)]

As the noble Lord said, we will come on to discuss those aspects, and I will try to answer that question when we get there. I have probably said enough on that.

Amendment 328 in the names of the noble Lords, Lord Wallace and Lord Fox, provides for a new discretionary exclusion ground in relation to deferred prosecution agreements. This issue was explored in the Green Paper. Due consideration was given to feedback from the public consultation, as well as discussions with the Serious Fraud Office and the Crown Prosecution Service. The Government’s response to the Green Paper set out the rationale for their decision not to include a separate exclusion ground on deferred prosecution agreements. In brief, the actions taken and commitments made by suppliers as part of the DPA typically constitute good evidence of self-cleaning. Reaching a DPA requires a supplier to accept culpability for the offence, co-operate with the relevant authorities and make reparations. Prosecuting authorities typically will not consider a DPA appropriate unless the supplier has already made reforms, such as proactive changes to corporate structures or the replacement of personnel.

DPAs will involve judicially approved terms that the supplier must commit to—for example, on actions to improve compliance and audit functions within the company, and external reviews to test those improvements to ensure that further misconduct does not occur. Non-compliance with a DPA is unlikely to be something that contracting authorities are equipped to assess. I hope that the noble Lord, Lord Fox, will understand and accept that.

Compliance is for either the Serious Fraud Office or the Crown Prosecution Service to assess, depending on which is the owner of the DPA in question. If a supplier fails to comply with a DPA, there are a number of options open to the enforcing body, including the prosecution of the supplier for the original criminal misconduct, but that cannot be part of procurement law, or for enforcement by the many differently sized authorities engaged in buying goods or services in the public sector.

Finally, Amendment 443 tabled by the noble Lord, Lord Wallace, seeks to remove

“a British Overseas Territory or a Crown Dependency”

from the definition of a UK supplier. The Bill confers rights on UK suppliers in a number of places, including, in Clauses 18 and 19, an entitlement to be considered as part of a competitive tender, or, in Clause 89, to access remedies. They are also used as the basis for an assessment of no less favourable treatment in the non-discrimination provisions, in Clause 82(2). This amendment would remove this guaranteed access to the UK’s procurement markets from suppliers from Gibraltar, which is the only overseas territory or Crown dependency whose suppliers currently enjoy access under the existing procurement regime.

Although overseas territories and Crown dependencies are not part of the UK constitutionally, they do not become party to treaties in their own right. The UK must extend the territorial scope of its ratification of treaties to include them. As such, overseas territories and Crown dependencies are unable to secure rights to markets in the United Kingdom in the same way as other states. That is a long way of saying that in view of the special nature of the trading relationship between the UK and overseas territories and Crown dependencies, it is right to include them in the definition of a UK supplier.

This discussion has been useful and illuminating to me. I respectfully request that the amendment be withdrawn.

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[Baroness Neville-Rolfe (Con)]

I look forward to getting delayed in the Lobby in the next Division.

I am aware of the concerns regarding Hikvision and other Chinese technology companies; we take these concerns extremely seriously, as the noble Lord knows. We are taking action in the Bill to introduce a new ground for exclusion, specifically to address situations where a supplier poses a threat to national security. The new exclusion ground allows a contracting authority to reject bids from suppliers that the authority considers pose a threat to the national security of the United Kingdom.

It is the long-standing policy of successive British Governments that judgment as to whether genocide has occurred is for a competent national or international court. It is not for the contracting authorities. Genocide is a crime and, like other crimes, whether it has occurred should be decided after consideration of all the evidence available in the context of a credible judicial process.

This has been an important debate. I have learned a lot but, for today, I respectfully request that this amendment be withdrawn.

[Lord Purvis of Tweed (LD)]

I would be grateful if the Minister could clarify a little her argument as to why organ trafficking—which is prohibited under the UK’s statute book—cannot be mentioned in Schedule 6 under the mandatory exclusion grounds. Under labour market, slavery and human trafficking offences, there is a fairly comprehensive list of UK domestic offences that are mandatory grounds. I do not see why that list cannot be added to, as I cannot see where the ethical grounds are included within Schedule 6 on the mandatory grounds.

Can the Minister also clarify why, in Schedule 7, on discretionary grounds, those offences are included for prevention orders? The Government seem to be suggesting that for a company that is subject to prevention orders for these heinous crimes—or could be subject to them, if it were a foreign supplier—this is simply discretionary. A contracting body would have to make a judgment itself as to what it considers would be the likelihood of a supplier meeting the threshold for a prevention order, rather than an offence. That does make any sense to me. I would be grateful if the Minister could address those two points.

[Baroness Neville-Rolfe (Con)]

I will need to take the noble Lord’s first point away and look at it. His explicit point is that there is a bit of legislation, so why do we not refer to it? His second point is tied up with how this discretionary schedule works and how we define “professional misconduct”, which, in our interpretation, includes ethical issues. I thank him for raising these issues again.

[Lord Purvis of Tweed (LD)]

I would be grateful if the Minister were willing to consider this. It is not about the ethical point. It comes under paragraph 1 of Schedule 7, which is headed “Labour market misconduct”. Sub-paragraphs (a) to (d) specifically refer to slavery and trafficking prevention orders and trafficking and exploitation prevention orders. If a supplier is considered to be acting in a way that would satisfy a prevention order in the UK, it would be a discretionary exclusion ground rather than what I consider it should be: a mandatory exclusion ground. I am happy for the Minister to reflect on it and write if she cannot answer today.

[Baroness Neville-Rolfe (Con)]

Clearly, I have learned during this debate. I will obviously have to learn a little more about how we have tackled this issue. As was said right at the beginning of the debate, there is clearly some difficulty around the principle of how much detail to include and how many things to cross-reference in the Bill but, in the light of the noble Lord’s helpful clarification, I will go away, look at the various areas and come back to him.

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[Baroness Neville-Rolfe (Con)]

I will have a little more to say about this later on, so why not let me finish? If I do not answer the noble Lord’s questions, we will try to get at what is needed.

Amendments 477 to 480 seek to examine why government departments have been excluded from the appropriate authority’s investigatory powers. The definition of “relevant contracting authority” in Clause 96 is in recognition of existing governance. Ministers already have the authority to investigate government departments without the need for statutory powers; I think I have said that already. There are also established routes for co-operation with investigations.

Amendment 477A was tabled by the noble Baronesses, Lady Thornton—it is good to see her in the Committee—Lady Hayman of Ullock and Lady Bennett of Manor Castle, and the noble Earl, Lord Devon. Amendment 482 was tabled by the noble Baroness, Lady Noakes. These amendments would expand the scope of the statutory oversight powers beyond compliance with the Bill, straying into areas of policy. The scope of the statutory powers provided by these clauses has been carefully drafted to maintain the boundary between law, which must be adhered to, and policy, where some leeway is allowed in terms of its implementation.

Expanding Clause 96 and/or the Section 97 recommendations to include social value, as well as considering how contracting authorities have chosen to meet obligations to have regard to policy and principles, would blur that boundary and start to erode the autonomy of contracting authorities, which we recognise are best placed to make policy implementation decisions that are appropriate for their business. It would also move the statutory regime away from objective and measurable concerns into more subjective areas of debate, which could impact the effectiveness of the oversight system. We believe that the scope of Clauses 96 to 98 creates a proportionate, effective and compelling incentive for improvement. It is worth noting, however, that the drafting of Clauses 96 and 97 does not prevent the Minister from making observations regarding a contracting authority’s policy implementation. Policy guidance can indeed continue to be provided to contracting authorities.

Non-statutory procurement policy notes, which we have discussed before, are currently released to guide contracting authorities. In the new regime, under Clause 98, statutory guidance, which may be published as a result of investigations, can also address matters of policy. Contracting authorities will be required to have regard to any guidance released under Clause 98; I think this helps to deal with the social value issue. The removal of Clause 97(3) would result in the appropriate authority having the power to intervene in specific procurements.

The restriction in Clause 97(3)(c) ensures probity of the procurement by, for example, preventing a Minister of the Crown from using Section 97 to exert influence over which supplier is awarded the contract. That is an important point. To remove this restriction would be concerning to contracting authorities and suppliers alike.

Finally in this group, the noble Baronesses, Lady Thornton and Lady Hayman, and the noble Lord, Lord Coaker, tabled Amendment 486A. This seeks to stipulate that the expertise of SMEs, voluntary organisations and social enterprises is accessible to an appropriate authority that is conducting investigations under Clause 96. The PRU will be managed and delivered by a small, experienced team of civil servants based in the Cabinet Office, supported by a panel of experts, which can be consulted regarding investigations and any resultant Section 97 recommendations and guidance under Section 98. The Cabinet Office aspires to provide perspectives from procurement experts from across the Civil Service, local authorities and various types of private organisations, including SMEs and VCSEs, to benefit the oversight regime.

However, it should be recognised that having a panel which includes external procurement professionals is dependent on the availability of suitably qualified individuals and the ability to manage any potential conflicts of interest. I am therefore unwilling to make a legislative commitment of the kind proposed. However, the establishment of the panel will be transparent, and appropriate documentation will be published in due course, including on the process for appointing members. It seems to me that this is an important error, which is why I make that point.

[Lord Purvis of Tweed (LD)]

Can the Minister clarify whether it is the Government’s intention that the PRU will be an appropriate authority, so that panel members themselves will have legal powers under Section 96? If not, I am really confused as to what legal powers the panel will have when it comes to calling for documents, and what duty will be on other contracting authorities to provide the panel with any information at all. At the moment, it does not look as if the panel is considered to be an appropriate authority, so it will not have any other legal powers under Part 10.

--- Later in debate ---

[Baroness Neville-Rolfe (Con)]

We do have a social value Act; I think the answer is—subject to correction—that social value features in the NPPS, the policy guidance note, and that failure to have regard to the NPPS is challengeable via judicial review rather than by suppliers for breach of statutory duty under Part 9 of the Bill. That is more appropriate as the NPPS will inform procurement strategy, and failure to comply should not result in suppliers being able to seek compensation from the public purse in respect of an individual procurement. There is quite a lot of complication in that area, but that is the approach. There is a social value Act, but obviously I will listen to what has been said today.

To return to the PRU, the unit will exercise powers on behalf of an appropriate authority. The panel will consult the PRU when appropriate and, if the Government set up a panel, as Governments often do—we have various panels in different departments that I have been involved with, and in my experience they tend to endure; certainly this one will be useful—the PRU will make recommendations to the Minister, who is the appropriate authority and will make the final decisions. That seems to be the right approach constitutionally.

[Lord Purvis of Tweed (LD)]

I am grateful for that response. To be clear, will the panel be the investigating body?

[Baroness Neville-Rolfe (Con)]

No. The PRU, a Civil Service unit, will be the investigating body, which will consist of experienced people of the right kind. The panel will advise that body.

[Lord Purvis of Tweed (LD)]

I am grateful, but Clause 96 says the “appropriate authority may investigate”. The Minister has been referring in this short debate to “investigations” with regard to the panel. I am grateful that she has clarified that it will simply be an advisory group, not an investigatory group, and will not itself have the legal powers to seek documents. I am therefore not entirely sure what the PRU will do other than what existing civil servants do, which is to advise Ministers.

[Baroness Neville-Rolfe (Con)]

We have put together this whole new system of procurement, which includes various checks and balances. Panel members will be available for the procurement review unit to help regarding investigations and the unit’s work. Their reports and recommendations will help with moving forward on procurement and the complexities of this change of the law. Their advice can be published, and we will be able to reference the assistance that the panel has provided. That is the approach that we are proposing following a process of consultation. The PRU is central. I am sure we will revert to this issue.

Trade Bill

Debate between Lord Purvis of Tweed and Baroness Neville-Rolfe

Report stage & Report: 3rd sitting (Hansard) & Report: 3rd sitting (Hansard): House of Lords
Wednesday 6th January 2021 Lords Chamber

[Baroness Neville-Rolfe (Con) [V]]

My Lords, I welcome the government amendments, which are technical in nature but allow proper co-operation between HMRC and the devolved authorities. As I was not able to be in the House in person during debates on the Trade (Disclosure of Information) Act, I have probably not understood the purpose of Amendment 36A in the name of the noble Lord, Lord Stevenson of Balmacara—but I have a question that perhaps he or my noble friend the Minister could kindly respond to.

I always worry about the wisdom of giving a power to amend primary legislation by order, particularly on the collection or disclosure of information by HMRC, which seems to be the issue in Clause 7(4). As a former international retailer, I know how commercially sensitive such information is and how onerous ill-thought-out form-filling requirements can be. I want to make sure that the power could not be misused by the Executive—we have seen a certain amount of evasion of scrutiny during Covid. I want an assurance from the Minister, assuming that the power to amend primary legislation is retained in what is now being proposed, that the power would be used sensibly. If it disappears, then that would also meet my concern.

[Lord Purvis of Tweed (LD)]

My Lords, anybody seeking to follow this Trade Bill, including the Bill that we had before Christmas, will struggle to follow the three elements through a natural progression—but we are grateful to the noble Lord, Lord Lansley, for his forensic skill. He has been able to assist in the scrutiny of this, and the questions he asks are very valid. I am glad the noble Lord, Lord Stevenson, has brought forward his amendment, and I look forward to the response from the Government and the Minister. Like others, I welcome the Minister’s very full letter in response to the debate that we had on that fast-tracked piece of legislation.

There are a couple of areas that are still troubling me, and I hope the Minister will be able to explain those. I am happy with his explanation that it is purely a matter of parliamentary drafting, with the same legal effect. I will use this ad nauseam in my future career in this House, when it comes to any Ministers quibbling over the drafting of any amendments that I bring forward. I will say that it is purely drafting, with the same legal effect—so, speaking personally, I am very happy that that precedent has been set.

I am glad that the amendments to this Bill, which will effectively become the successor to the fast-tracked Bill, reference HMRC sharing information with the devolved Administrations. This goes back to the very first time we discussed these amendments, so I am happy and pleased that the Government have indicated their support for that.

However, I am interested in the language of Amendment 37, which I welcome, when it states:

“facilitating the exercise by a devolved authority of the authority’s functions relating to trade”.

Can the Minister outline what these are? In the previous group, on consulting the devolved Administrations on trade agreements, the noble Viscount, Lord Younger, was at pains to stress—and was accurate—that, under the Scotland Act and others, trade, as far as international relations are concerned, is a reserved matter.

However, we all know that there are “functions relating to trade” in the devolved Administrations; we know this for certain because it will be in the Bill. HMRC will facilitate the exercise of those functions by the powers under what will be this Act. I would be grateful if the Minister could outline what those “functions relating to trade” are; it would be helpful to us to know the extent of the Government’s position as regards what responsibilities for trade the devolved Administrations have.

Another thing still niggling me is referenced in the Minister’s letter. I have asked on a number of occasions why it was not more straightforward to put authorities that are linked with the ports and their access routes, in Scotland in particular, under those areas in the Bill. The Government have said that the powers were needed in England primarily, as the Minister’s letter stated, because those authorities were identified as the ones facing the greatest disruption at the end of the transition period, but this legislation is now for the long term and this data will also be shared with the WTO and other international bodies.

The Government have said that if it becomes necessary to add an authority in a devolved Administration country, they can use order-making powers to do it, but in subsection (4) there is a reference to an offence in Scotland for a non-existing authority breaching the disclosing information powers, and it carries a term not exceeding 12 months, so for a body that is not included in the legislation it is a 12-month prison sentence for disclosing information. That happens to be twice the length of time that it will now be in England, under government Amendment 40, which is six months. I do not know why that is the case, so perhaps the Minister can explain. There seems to be a ghost criminal offence created by this legislation that does not impact on anybody and is twice as much as it is in England. I just do not understand why.

I hope that the Minister can respond. I will certainly be supporting these amendments. The letter was very helpful and gave the process for indicating when the sunset clause will kick in for the legislation that we passed before Christmas, and given that this legislation is now for the very long term I hope that the Minister can respond to the points that have been raised.