Procurement Bill [HL]

Baroness Boycott Excerpts

Committee stage
Monday 18th July 2022 Grand Committee

I recognise that the Government are beginning to wrestle with the substantial task of removing Hikvision and Dahua technology cameras from the public sector supply chain. One person about whom I have no doubts is the noble Lord, Lord True, who, as I have already indicated, has already been extremely helpful on this matter. But this will become possible only with a timetable and a developed plan, which requires transparency about the extent of the problem. I hope the Minister will consider what more the Government can do to fully outline the extent of Hikvision’s and Dahua’s presence in the UK—they already have 1 million cameras in this country—so that we can finally discuss a reasonable timetable for their removal, as is happening in other Five Eyes countries such as the United States.

[Baroness Boycott (CB)]

I speak on behalf of my noble friend Lady Worthington, who cannot be here, to support our Amendment 452, which makes transparency provisions, in particular on issues of climate change. I welcome the Minister’s commitment at Second Reading that the Government

“want to deliver the highest possible standards of transparency in public procurement”.—[Official Report, 25/5/22; col. 856.]

While the Bill does not include a general duty of transparency compared with previous procurement rules, which required that contracting authorities act in a transparent manner, the Government have said:

“Transparency will be fundamental to the new regime. Extended transparency requirements and a single digital platform on which procurement data will be published will mean that decisions and processes can be monitored by anybody that wishes to do so.”


The Bill widens the authorities’ duties to publish notices and information on their procurement activities, and the provisions under Clauses 86 and 88 should improve transparency by making such notices available through a specified online system. This is welcome, but there is no substantive information on what exactly is going to be published. Instead, Clause 86 provides for appropriate authorities, through secondary legislation, to make regulations that will set out how notices and information will be published.

The amendment in my name and that of my noble friend Lady Worthington is intended to clarify what the regulations for the publication of notices, documents and information must contain as a minimum, by ensuring that any regulations include provisions around the availability of notices or information and that these are easily accessible.

Open and accessible procurement data will be crucial in the years ahead to enable modelling of the impacts of public contracts on carbon emissions, particularly when it comes to renewal. Spend Network has started to collect procurement data on every public tender and contract in the world and to map some of this impact on a freely available basis, but it has been hampered by a lack of good-quality inputs. Nevertheless, the data available has confirmed that a 20% reduction of emissions at each contract renewal would

“see the UK government’s contracting still emitting 686,000 tonnes of carbon per month by 2030”,

but that

“poor quality data meant that we were only able to evaluate 40% of the data”.

The recent Written Question to the Minister from my noble friend Lady Worthington highlighted the lack of easily accessible data being kept by departments on both contracts and emissions from those contracts. Will the Minister agree to this simple amendment, which would ensure that there is clarity in the legislation about transparency and accessibility, especially in relation to carbon?

While I am on my feet and we are discussing transparency in contracts, I would like to ask the Minister something that I was asked at the weekend, about the £360 million Palantir contract to manage NHS data. I was contacted by a very worried local NHS manager, who says that a list of 300 redundancies has already been drawn up in the NHS digital department and that this contract with Palantir—a second person has now left the NHS to work for Palantir—is a “done and dusted deal”. I would be incredibly happy if the Minister could give me a small reassurance that I could pass on to my friend, because obviously everyone in his department is really anxious.

[Baroness Hayman of Ullock (Lab)]

My Lords, I start by thanking the Minister for introducing all the government amendments in this group. Again, it is very helpful, as there are quite a few of them, so we appreciate that.

I will speak to my four amendments and offer my support for the others in this group, so ably introduced by noble Lords. My first three are Amendments 455, 458 and 459A, which are on digital registers and digital information. I will speak to those first. Amendment 455 would require the establishment of a digital register of all public procurement for all notices; Amendment 458 would allow the creation of a digital registration system for suppliers; and Amendment 459A would require a contracting authority to publish required procurement documents on a single digital platform. The intended purpose is to allow public spending priorities and the performance of the procurement system to be understood by stakeholders, and therefore allow authorities to plan and deliver procurement in a strategic manner.

The Green Paper Transforming Public Procurement said that a

“lack of standardisation, transparency and interoperability is preventing the UK from harnessing the opportunities that open, common and shared data could bring”,

and that

“a clear digital procurement strategy focused on transparency results in greater participation and increased value for money driven by competition.”

The Cabinet Office Declaration on Government Reform policy paper, published in June last year, also supports this when it says:

“We must do better at making our data available to all so that we can be more effectively held to account.”


It also includes an action to:

“Ensure all data is as open as possible to public and third parties.”


I am sure we would all support that.

We were therefore very pleased to see this ambition reiterated by the Minister at Second Reading when he said:

“I acknowledge that transparency has been a key ask for the House. The House expects that transparency will be improved. We believe that the Bill does this.”—[Official Report, 25/5/22; col. 926.]


We have learned from today’s debate that real transparency is incredibly important to noble Lords, as this Bill progresses. We therefore believe that it is essential to put the Green Paper ambitions into the Bill, both to deliver on this promise effectively and to make sure that it cannot be rolled back or diluted, which is one of our concerns. An unambiguous statement of this commitment would help secure adequate resources, and I am sure the Minister would agree with me on the importance of this.

Looking at Clause 88, on information relating to a procurement, in Part 8 of the Bill—there are number of subsections, so I will not read it all out—I just want to check that I am reading its implications correctly. If I understand it, it creates powers to have a single supplier portal right across government. If this is correct, it is extremely positive, but I would like clarification from the Minister that that is exactly the intention of this clause. If that is the case, it would save a huge amount of time across government and across business, allowing companies to register and update their credentials once to do business with UK government. It would also allow them to establish unique IDs for contracting authorities and, we hope, then move forward in a much more practical and efficient way, which is what we would all like to see. The purpose of my Amendment 455 is to allow the Bill and the Government to articulate this objective much more clearly. I would be grateful if the Minister can clarify this.

The other vital part of the Government’s data ambitions—to bring together all the notices and data around procurement into a single source—should also have the same elevation in the Bill. It is really important that the information can then be fed back into a variety of user-friendly ways to local authorities, major procurement companies and others, so that we can generate data-driven insights and properly track the performance of different companies. Because there is spend, there is live, ongoing and updated data, which will be extremely helpful. There seems to be the ambition behind the UK’s adoption and approval of the open contracting data standard, about which it would again be helpful to get clarification. The purpose of my three amendments on data is to gain clearer provisions in this regard in the Bill, which will be easier to understand for anyone working in the procurement industry or wanting to gain a contract.

The noble Lord, Lord Clement-Jones, also has a number of amendments on data, and I thank him for his support for one of my amendments. I know he will speak to his amendments, but I think we are in the same place on all this. I am extremely grateful for his amendments and will listen carefully to what he has to say when he introduces them.

I turn to my other amendment, Amendment 459, and thank the noble Baroness, Lady Bennett of Manor Castle, for her support for it. Its purpose is to require each ministerial department to calculate the estimated carbon emissions from public contracts entered into and to lay an annual report on this before Parliament. The amendment seeks to look at the impact of the procurement regime from an emissions perspective. Given the weather at the moment, climate change is on everyone’s mind, so I hope the Minister and the Government will think carefully about the areas where we are looking to improve the impact of the Procurement Bill—on climate change, emissions, net zero and so forth.

There is a National Audit Office report on public sector emissions, which is extremely worth looking at. I urge the Minister to have a close look at it to see whether there is any way that its recommendations can also be part of what we are trying to achieve through the Procurement Bill. The main issue is around reporting: although many companies will do it voluntarily, many others do not report at all, so there is no balance in the information that we have. For example, there are no mandatory emissions measurements or reporting requirements for the public sector as a whole. The wider public sector includes local authorities, schools and hospitals, all of which may well have high carbon emissions. Peers for the Planet published a very good report on local authorities and net zero, in which it noted that there was little consistency in local government reporting of emissions. I understand that a lot of this concerns BEIS, but the Procurement Bill provides us with an opportunity to look at whether this is something that would have a positive impact on driving down emissions.

This concludes the introduction of my amendments and I will turn now to those of other noble Lords. Many noble Lords spoke in support of the different amendments on the publication of notices and the concerns around freedom of information. My noble friend Lord Hunt of Kings Heath, in particular, made an extremely important speech about his two amendments. He said again that it is a welcome ambition to simplify what we are trying to achieve here with procurement. As I have said, any noble Lord who worked on OJEU will be very grateful for simplification. As was debated last week, it is terribly important that we do not make things more difficult for SMEs, charities, voluntary organisations and, as my noble friend Lord Mendelsohn said, for freelancers, who were often forgotten when we debated this Bill previously. Transparency is clearly very important when looking at those kinds of contracts.

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[Baroness Boycott (CB)]

My Lords, I declare my interests as set out in the register. I am introducing Amendments 310, 318 and 322. I am grateful for the support of the noble Baroness, Lady Young of Old Scone.

My amendments follow on a lot from things that have already been mentioned. They are designed to remedy what appears to be a significant inequity in the treatment of environmental offences relative to other offences listed in Schedules 6 and 7, which relate to mandatory and discretionary exclusion grounds. In Schedule 6, there is no mention of mandatory exclusions for environmental offences. Apparently, no environmental offence, however serious or wide-reaching in its impact on people’s health or finances or the wider environment, currently merits mandatory exclusion. In contrast, almost any offence in relation to employment agency law, common law or tax, however minor, triggers mandatory exclusion.

In Schedule 7 there are grounds for discretionary exclusion on environmental misconduct, but let us work through the terms of that exclusion. First, the authority is required to ignore any event predating the coming into force of the schedule. The noble Baroness, Lady Noakes, has tabled an amendment to query that proposal, and I will be interested in the Minister’s response to her. I also note that the reference to an event rather than an offence seems to leave the contracting authority in doubt about whether they must exclude convictions for environmental offences after the date of coming into force where the conduct took place.

Secondly, the contracting authority has to decide whether the conduct caused or had the potential to cause significant harm to the environment. I would be very interested to hear about the breaches which are serious enough to result in convictions for offences—not, as I understand it, simple enforcement notices or civil penalties but actual offences—but do not even have the potential to cause significant harm to the environment. Still, the legislation erects an additional hurdle for contracting authorities with absolutely no clarity about what an insignificant offence looks like or why it is an offence if it is insignificant.

Thirdly, the contracting authority must consider whether the circumstances giving rise to the application of the exclusion are likely to recur. I do not believe that this is the Government’s intention, but if we wanted a regime which gave a surface-level semblance of treating environmental offences seriously in public procurement while making contracting authorities extremely reluctant in practice ever to exclude any supplier on environmental grounds, we have done it really well. However, I believe that that is not the Government’s intention, so I have tabled this amendment to achieve what I believe is needed and meant.

Amendment 310 makes an offence under any provision of environmental law subject to mandatory rather than discretionary exclusion. There is no judgment to be made about the potential for causing significant harm where there has been an environmental offence. An additional effect of this drafting is that the contracting authority would be required to disregard only offences that took place longer ago than the default position—set out in paragraph 42 of Schedule 6—of five years.

Amendment 318 provides a definition of environmental law, which is currently missing from the Bill. It is taken from last year’s Environment Act, Amendment 322 removes the existing discretionary exclusions in Schedule 7, as previously described. This is a modest proposal. It would mean that contracting authorities would receive clarity that convictions for offences against a defined range of environmental law in the past five years would always be grounds for mandatory exclusion. However, contractors would not necessarily be excluded out of hand. Contracting authorities would still have to give consideration to the likelihood of the circumstances occurring again or, if the amendments in the names of the noble Lords, Lord Wallace and Lord Fox, are accepted, the contractor would need to demonstrate this to everyone’s satisfaction.

Neither do the amendments I am speaking to create new burdens on contracting authorities; they merely replace an unclear discretionary exclusion with a clearer one. Authorities which intended never to give a moment’s consideration to contractors’ environmental records—which is what happens now—or to the possibility of excluding firms in any circumstances would now need to do a small amount of work in identifying whether convictions had taken place. I assume that the noble Lord, Lord True, would welcome that increased diligence and consideration. However, contracting authorities which did take their responsibilities seriously would now not need to worry about venturing out on an unguided journey into deciding whether a breach was significant. This seems far closer to the vision of procurement set out in the procurement Green Paper, which referred to the environment as one of the Government’s strategic policy priorities and specifically referenced a supplier’s plans for achieving environmental targets across its operations as an example that the switch to considering bids on the basis of most advantageous tender would deliver. It is also closer to the Bill’s Explanatory Notes, which refer to simplifying the procurement process and making it more transparent. Finally, it is closer to the vision that the noble Lord, Lord True, set out at Second Reading, which was quicker and simpler and better meets the needs of the UK.