Procurement Bill [HL]

Baroness Hayman of Ullock Excerpts

Committee stage
Wednesday 13th July 2022 Grand Committee

Debate on Amendment 45 resumed.

[Baroness Hayman of Ullock (Lab)]

My Lords, I will just wind up the debate we had on Monday. In this group, I have Amendment 52, which is about adding the improvement of

“economic, social and environmental well-being”

to the procurement objectives. I also put my name to a similar amendment, Amendment 48 in the name of my noble friend Lord Hunt of Kings Heath. I completely support everything that he said in his introduction; it covered what I would have said in support of my amendment, so there is no point in going over all that again. In fact, we discussed a number of amendments in this group that looked at the economic, social, environmental and cultural benefit and value of the Bill and considered what we mean by “public benefit”. It was a useful debate to explore those potential objectives and what the definition of “public benefit” is. It will be interesting to hear the Minister’s response to those discussions.

I also supported the amendments laid by my noble friend Lady Thornton, Amendments 47A and 52A. As my noble friend said, we believe that maximising social value is something that contracting authorities should have regard to. This is in line with the social value Act and the national procurement policy strategy, so this should all be put in line together. We also know that the Government are committed to expanding the use of social value within procurement to maximise these areas. The noble Baroness, Lady Parminter, who is not in her place today—

[Baroness Parminter (LD)]

I am in my place.

[Baroness Hayman of Ullock (Lab)]

Oh, the noble Baroness is there; I was looking for her in the place in which she sat on Monday. She moved, just to confuse me. This is the trouble with picking things up later.

The noble Baroness rightly said that meeting net zero is a government-stated objective and we believe, as she does, that this should also be an objective within the Procurement Bill. It could make a genuine difference, should that be something that needs to be taken account of. We also support those noble Lords who said in the debate that this helps to meet the levelling-up agenda as well as achieving net zero.

We know that social value is included in the NPPS—the national procurement policy statement—so I ask the Minister: if it is in the policy statement, why is it not referenced in the Bill? It concerns me that the policy statement can be changed at any point, so not having it in the Bill and just having it in the statement means that it is not absolutely embedded within the legislation. I will briefly mention that, between 2012 and 2020, there was no statutory guidance on social value. This inhibits its development, so we need to ensure that this does not happen in future.

I express strong support for Amendments 49 and 58 in the name of the noble Baroness, Lady Worthington, which are about climate and environmental matters and the importance of having these based within the Bill. She also said that “public benefit” needs further clarity, so I must ask again: does “public benefit” include environmental outcomes? It would be helpful to have further information on this. The noble Baroness, Lady Parminter, spoke importantly about the fact that using procurement in this way is an opportunity to drive behaviour change, because we are not going to achieve the Government’s net-zero objectives without behaviour change.

Amendment 45 in the name of the noble Lord, Lord Wallace of Saltaire, specifies a number of overarching requirements that a contracting authority must take due regard of when carrying out procurement. We support the main points that he made—particularly, as well as the carbon account, the ethical and human rights record of the supplier, as he said. I know that we will talk about this in a later debate, but that is important.

Amendment 53 in the name of the noble Lord, Lord Lansley, which the noble Baroness, Lady Noakes, introduced, again talked about defining “public benefit”. I think that the Minister can see that this is not party political: right across the Committee there is concern about what “public benefit” means and what it is going to deliver as part of the Procurement Bill. The noble Lords, Lord Wallace of Saltaire and Lord Purvis, also tabled amendments on this issue.

I finish by briefly mentioning an interesting briefing that I had from UKCloud. I do not know if other noble Lords have received it, but it is about the importance of maximising social value through procurement in the world that UKCloud works in—the cloud providers—and how doing so would be consistent with wider net-zero policy aspirations. UKCloud feels that it is important to support businesses in this country that are providing those kinds of platforms and support and that the sector can lead in the provision of clean, green technologies, which can help to digitise and decarbonise users of its services. It also believes that, if the sector got that kind of support from government, UK businesses would have the opportunity to really innovate and become leaders in this field. I found that an interesting briefing. If the Minister has not seen it, I would be happy to share it with him, because it had some interesting thoughts in it. The briefing also said that UKCloud feels that weighting should be given to make sure that cloud providers for the UK Government are paying their taxes in full on all earned income in the UK—that is an important point—and that they should have a clear and measurable track record of investing in local jobs and skills. The briefing has some interesting points about how procurement could help its particular type of business. I finish there and I look forward to the Minister’s response.

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

I thank the noble Baroness and all those who spoke on this group on our previous day in Committee. It was obviously unfortunate that we could not finish this group then, but I am grateful to all noble Lords, including those who were here on Monday who are not able to be here today. It has been an interesting debate and I think that we will wrestle with the philosophy of this as we go forward. I have been interested in the contributions made.

I am constantly asked to define “public benefit”. One of the reasons why we have different political parties in this country and why politics has evolved is that, at different times, different people define it in different ways. The search for a total, accurate, 100% agreed definition that covers every possible eventuality may be an illusion. However, I understand that noble Lords are saying that they feel that there needs to be more clarity. No doubt we will continue this conversation on other amendments to come.

I was interested in this debate. As he knows, I have very considerable affection and enormous respect for the noble Lord, Lord Hunt of Kings Heath—it is very easy to say in this House that you have very considerable affection for somebody, because we are such a nice lot; I think generally we do mean it—and his experience. He said something very interesting. Having argued for his amendment, he said that this Bill would finish with something akin to what he wanted in it and that it would do that because it was a Lords starter.

The only way to interpret that is that the noble Lord would advocate using the power of the House of Lords to force the elected Government to include something in a Bill that they did not wish to include, in their judgment and in the judgment of the House of Commons. That is a perfectly legitimate point of view, but I was interested to see that the noble Baroness from the Labour Front Bench had signed that, as she just reminded us, and expressed her support for what the noble Lord, Lord Hunt, had said. Perhaps I should take this away and tell my friends that if ever there is a Labour Government, it would be reasonable for the unelected House to hold up Labour legislation indefinitely on a Lords starter in order to force change.

--- Later in debate ---

[Lord True (Con)]

The noble Lord always slightly loses me when he rides off in his speeches. I have a vision of him lying awake, trying to get to sleep, thinking of these terrible right-wing Conservatives whom he always cites and seeing the worst in everything. I thought that the great tradition of the Liberal party and liberal values, which I was brought up with and adhere to, is to give space to variety and not uniformity; there should be flexibility, with opportunities for local judgments and for contracting authorities to make them. The concept of public benefit is wide and flexible and should be so to give contracting authorities a degree of discretion to consider whether their specific contracts can deliver greater benefits than they otherwise would.

For example, contracting authorities are already able to make it clear in their technical specifications that fair trade options can be included in the products provided to meet the requirements of the contracts, provided that they do not discriminate against other products of other suppliers. The noble Lord objected to the mention of the terrible word “money”, but public procurement needs to have a focus on achieving value for money. The two things are not contradistinctions.

While I would expect contracting authorities to consider these matters where appropriate, it would not be helpful to elaborate them in the Bill, for the reasons that the Government have submitted, as they would not apply to all contracts. The course that the other side is proposing will lead to a uniformity imposed on a diversity, which is the antithesis of local values. I respectfully request that these amendments be withdrawn.

[Baroness Hayman of Ullock (Lab)]

Just before the Minister sits down, I really do not think that that is what we are trying to achieve. It is just to try to bring in a definition of something. If you have an objective laid out, without proper understanding of what the phrase is trying to achieve or what it means, it could be quite confusing. All we are trying to get is some clarity on what is meant by “public benefit” and what the Government are trying to achieve by having it as an objective. I have no problem with there being flexibility around this—that is important in procurement—but, as the noble Lord, Lord Wallace, said, we need some sort of guidance. If the Government do not want to put a definition in the Bill, some guidance underpinning it, on what this is looking at and what the Government are trying to achieve, would be extremely helpful.

[Lord True (Con)]

My Lords, in a sense, it depends where the straitjacket applies and where flexibility is enabled. We will come on shortly to debate the national procurement policy strategy and I gleefully anticipate that that will be another zone of contention in our Committee, to which many of your Lordships will want to add more and more things. The noble Lord, Lord Coaker, was enthusiastic about the national procurement strategy at the opening of our proceedings and it is something that an incoming Government would be able to change and mould. Maximising public benefit is an important objective of the Bill.

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The Government have failed to legislate to ensure that we do not move even further down the track towards a preponderantly gig economy. It is crucial that they use their procurement muscle to ensure, as in Good Work, that these measures are taken on every major public procurement involving AI and automated decision-making.

[Baroness Hayman of Ullock (Lab)]

My Lords, this is an important group of amendments, which focus on what we believe work in this country should look like. There are a number of amendments in the name of my noble friend Lord Knight of Weymouth, to which I was pleased to add my name. He introduced them in his usual way—eloquently, knowledgably and passionately. I thank him for that.

We believe that a commitment to good work standards in procurement, in response to the new challenges faced in the labour market that noble Lords have talked about, is an extremely important and appropriate part of what we need to be looking at. We know that Scotland introduced a commitment to fair work first and my noble friend Lord Hendy talked about its introduction by the Welsh Government, so this is not new or untried. Other parts of the United Kingdom are looking at how best to achieve this and we think that the Treasury should also be looking at it. It should be not just about procurement but much broader: how do you underpin good work?

My noble friend Lord Knight of Weymouth’s amendments clearly recognise that procurement can be a powerful tool to support public policy goals and targets, beyond just ensuring value for money. We have heard about the Institute for the Future of Work and its research that shows that creating and protecting good-quality jobs provides resilience and promotes well-being and prosperity at every level. Again, that supports the Government’s levelling-up agenda. My noble friend Lord Knight also mentioned how it would increase productivity in this country. Surely that is an ambition that the Government and the Minister share. We believe that promoting good work is a public good that advances national, economic, social and health interests and priorities.

The noble Baroness, Lady Bennett of Manor Castle, spoke in support of my noble friend Lord Knight’s amendments. She made a couple of important points about how work intensity has increased while, at the same time, work security has decreased in this country. I agree with her on the issue of outsourced contracts. That is something that we have to look at because, as the noble Baroness rightly said, quality of work is related to quality of life, because we spend so much time at work.

The noble Lord, Lord Clement-Jones, spoke to a number of amendments and focused particularly on AI, automation, the impact of new technologies and their potential disruption to jobs. There has been some good research on this, which we need to take account of as we develop legislation. It would be interesting to hear the Minister’s thoughts on how that could be managed in this Bill or perhaps through other means.

My noble friend Lord Hendy also had a number of amendments in this group and I thank him for his detailed and careful introduction. A lot of this is incredibly important. He spoke about previous and other legislation and how we need to bring it up to date in this Bill. That is incredibly important if we are to get the best legislation that we can. He was quite right when he said that we need to use procurement to improve the lot of Britain’s workforce and ensure that we have high standards.

We all need to pay attention to the point that my noble friend made about P&O Ferries because, as he explained on his Amendment 186, we need some buffer or means to manage bad employers—as you could simply call them—as opposed to good employers. The Government condemned the actions of P&O Ferries, as I am sure the Minister did. If there is anything that we can do with the Procurement Bill to stop that kind of behaviour happening again, we should take clear advantage of it. The noble Baroness, Lady Bennett of Manor Castle, also supported the amendment.

I am sure that the Minister would support the fact that we are trying to improve the quality and security of the British workforce. I will be interested to hear his thoughts on the debate.

[Baroness Scott of Bybrook (Con)]

My Lords, I am sorry to disappoint. The following amendments are concerned with placing additional requirements on contracting authorities so that their procurements create good jobs and opportunities in local areas. I will address the issues in turn.

Amendment 54, tabled by the noble Lord, Lord Knight, whom I thank for his extremely interesting opening remarks, the noble Baronesses, Lady Hayman and Lady Bennett, and the noble Lord, Lord Hendy, seeks to include a new procurement objective in Clause 11, requiring contacting authorities to have regard to the importance of local “good work” when carrying out a procurement. We believe this is unnecessary. Under the Bill, contracting authorities will already be able to give more weight to bids that create good-quality jobs and opportunities for our communities, where this is relevant to the contract being procured and is not discriminatory. This is absolutely in line with the Government’s levelling-up objectives and means better value for money.

Additionally, the concept of “good work” includes a wide range of matters, such as union representation and access to facilities for career guidance and training. Including this provision would have the effect of slanting public procurement away from SMEs and VCSEs, which this Government have worked hard to champion in the Bill, and in favour of large employers with significant resources and a highly unionised workforce. That is very much the opposite direction of travel to the policy behind the Bill.

Amendment 67 was tabled by the noble Lords, Lord Knight, Lord Hendy and Lord Clement-Jones, and the noble Baroness, Lady Hayman. I thank the noble Lord, Lord Cement-Jones, for not only taking us into the future but looking at what is starting now and what has been going on for quite a few years to create a different workforce from the one we have now. He talked about something that we will have to discuss further in both Houses—both the opportunities and the challenges to the workforce that we see today. That is probably not for this Bill, but I can see much further work being done on the issue.

The amendment seeks to include in the national procurement policy statement the creation and protection of “good work”. We have already set out in previous debates the rationale for not including policy priorities in the Bill and why instead the national procurement policy statement is a more appropriate vehicle for this.

Amendment 104, tabled by the noble Lords, Lord Knight and Lord Hendy, and the noble Baroness, Lady Hayman, seeks to lay out a new rule in the Bill which would allow contracting authorities to request information from a supplier submitting a tender about good work standards and practices. This amendment is not necessary: the Bill already allows contracting authorities to set the criteria against which they wish to assess tenders and it is open to them to include these matters within those criteria. Any bidder will therefore have to submit information setting out how they meet the chosen criteria. Including a specific power for contracting authorities to require such information could call into question the ability of contracting authorities to request other information relevant to the assessment of tenders.

Amendment 116, tabled by the noble Lords, Lord Knight, Lord Hendy and Lord Clement-Jones, and the noble Baroness, Lady Hayman, requires extensive quantities of information about contracting authorities’ good work policies and measures to be included in the tender notice. I have set out already the Government’s objections to including significant requirements on contracting authorities in relation to this and other similar matters. Public procurement needs to be focused on achieving value for money. We do not consider that it would be appropriate to embed obligations on policy objectives such as “good work” in the tender notice or indeed elsewhere throughout primary legislation for public procurement.

Amendments 186, tabled by the noble Lords, Lord Hendy, Lord Hain and Lord Monks, and the noble Baroness, Lady Bennett, and Amendments 315 and 319, tabled by the noble Lords, Lord Hendy, Lord Hain, Lord Monks and Lord Woodley, seek to introduce new exclusion grounds in relation to breaches of labour rights. Employers who seriously violate the rights of their workforce are not fit to compete for public contracts. The Bill expands the range of serious labour violations to be considered as part of the mandatory grounds for exclusion, for example the failure to pay the national minimum wage and offences relating to employment agencies.

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[Lord Wallace of Saltaire (LD)]

My Lords, with apologies for missing some of this debate, I will speak briefly to my Amendment 129, which relates to Clause 22 and the incompatibility of subsections (2) and (5). Clause 22(2) states:

“In setting award criteria, a contracting authority must be satisfied that they … are sufficiently clear, measurable and specific”.


Clause 22(5) then sets out those “clear, measurable and specific” elements. In paragraphs (a), (b) and (c), it is indeed specific: they deal with

“the qualifications, experience, ability, management or organisation of staff”

et cetera. However, over the page, Clause 22(5)(d) sounds as if the drafter was late, tired, exhausted and gave up. It refers to

“price, other costs or value for money in all the circumstances.”

I am sorry that the noble and learned Lord, Lord Hope, is not here to tell us how one might legally interpret “in all the circumstances”.

What we have drafted as an amendment is one that is as specific as paragraphs (a), (b) and (c) on what those circumstances might be. It sets out the standard phrases that have been used in the Government’s previous documents and draft statement. I merely suggest to the Minister and those behind him that paragraph (d) simply is not fit for purpose as it stands. The phrase “in all the circumstances” should not be in a Bill of this sort. It either needs to be cut or to be expanded to the sort of specificity that (a), (b) and (c) include. My amendment suggests what that might be.

[Baroness Hayman of Ullock (Lab)]

My Lords—oh, I have just thrown all my papers on the ground. Actually, I do not need them. I am holding my list of government amendments, which I used to follow the Minister carefully as he went through them all so that I did not miss anything he said.

I sincerely thank the officials, who have spent a long time bearing with me and my noble friend Lord Coaker, going through the government amendments carefully so that we properly understood the implications and which ones were tied together, if you like. Many of the amendments provide helpful clarification, so I put on record my sincere thanks for the officials’ time and patience. It has been very important.

I have a few amendments in this group. The first, Amendment 101A, looks to ensure that contracting authorities consider potential health contractors’ records of ensuring

“affordable access to their products in low and middle-income countries and to the NHS”.

Of course, this is in the light of the pandemic, because it covers consideration being taken in public health emergencies of the international concern around this and the impact on countries that are less well off than us. With these amendments, we want to increase access to vaccines, medicines and diagnostics by attaching conditions to health products and research and development contracts in order to facilitate global manufacturing, because that was clearly a problem recently during the Covid pandemic.

It is also about having assurances that taxpayers’ money is being spent according to socially responsible principles in circumstances like that. If you can attach conditions to public spending on health procurement and R&D to have greater access to health technologies globally, this can help to bring the health crisis to an end sooner. We know that many of the Covid variants came about in countries that have very low vaccination rates. So it is about looking out and upwards for the future.

There is already some precedent for attaching conditions to pandemic tools to improve access. Paragraph 84 of the Government’s 100 Days Mission report says:

“We recommend that governments should build in conditions into their DTV funding arrangements to ensure … access to DTVs at not for profit and scale, which is to be enacted if a PHEIC is declared.”


So we can do this if we want to. The pricing and timing of delivery are important for gaining more equitable distribution.

Many low-income and middle-income countries have been calling for more meaningful control over their pandemic responses. Of course, they cannot really do that if they do not have access and are not then able to manufacture their own vaccines, which is what many of them were calling for. Again, if you remove intellectual property barriers, you can do this, but we need to look carefully at how we would manage that. Perhaps the Procurement Bill is not the right place for this, but it is certainly the right place to have a discussion and debate about it and to look at how we can move things forward.

My other amendments are Amendments 528A and 528B. I am slightly confused about why we are debating these and Amendment 528C of the noble Baroness, Lady Brinton, at this stage, when the government Amendment 528, to which they relate, does not come up for debate until group 14. It strikes me that we are likely to end up having exactly the same debate all over again. The Minister may not have an explanation for that, but I apologise in advance that we will revisit this.

I will be brief because we will come back to this. As I say, Amendment 528A is again about affordable access for middle-income and low-income countries, and Amendment 528B is about requiring contracting authorities to consider a potential health contractor’s record of ensuring affordable access to its products. I thank the noble Baroness, Lady Brinton, and the noble Lord, Lord Scriven, for supporting our amendments. We support Amendment 528C of the noble Baroness, Lady Brinton, but I am sure that we will have another debate on group 14, as I said.

Procurement Bill [HL]

Baroness Hayman of Ullock Excerpts

Committee stage
Monday 11th July 2022 Grand Committee

[Lord Moylan (Con)]

My Lords, in moving Amendment 37 I will speak also to Amendment 460 in my name, which is closely linked to it. They work to a similar effect.

The purpose of these amendments is to go back to the question of what we are trying to achieve in this Bill—what its purpose is. I think we all agree that we want honesty, transparency and value for money in public procurement, in broad terms. However, as I said at Second Reading, it seems that what we are achieving is the bureaucratisation of honesty, whereas we should be focusing on the principles. We are creating a great beneficial bonus for lawyers, as was identified by the noble Lord, Lord Fox, earlier in Committee.

The key to real-world management of procurement is flexibility: to be able to respond to circumstances as they change during a tender. The current system, as I said at Second Reading, operates by setting up some conditions at the beginning over which the contracting authority has very great control. However, the system operates with great rigidity after that, so that it is very difficult to respond to changing circumstances in the course of the tender, or to surprising tenders that might be received.

I gave some examples at Second Reading, particularly the great non-existent iconic London bus shelter. I will detain noble Lords with a couple of further examples because I have been contacted since then by a former local government officer, for whom I have great respect, with two examples from the water sector. One related to a contract in which—I cannot supply the names—the officers had set up in advance the very precise and clear criteria by which to analyse the tenders they received for a waste collection contract. When one of the tenderers said “For certain types of waste, we will pay you in order to collect it”—which can make sense for certain recyclers—the whole assessment system effectively collapsed because it had not contemplated that sort of bid. As far as I am aware, everything had to be scrapped and started again, whereas a sensible approach would have allowed it to be flexibly adapted.

The second was a case where the local authority decided to take a relaxed “Let’s see what the market comes up with” approach to the tender—which can be appropriate as well—which was also for a waste collection contract. Unfortunately for the local authority, the cheapest bidder proposed collecting waste from households only once every four weeks—which was why it was the cheapest bidder. Of course, that was neither environmentally nor politically acceptable, but what could the authority do about it at that stage? All it could do was put pressure on the second-lowest bidder, which had sensibly proposed a two-week collection cycle, to cut its price to make it competitive with the four-week people. That duly went through. The two-week collection was awarded the tender, and within a matter of months the contract had effectively collapsed because, of course, the company could not make it work at the price it had been obliged to agree.

So why is there no flexibility in the system once the initial conditions have been set up? The practical reason is that the moment you say, “This is daft. We should be able to do something about it”, the people whom I described in my Second Reading speech as the high priests of procurement will turn up and say, “Ah, but if you do that, a disappointed bidder may sue you for failures in the process.” That is why you are tied at the outset with iron hoops to the process that you have set in motion.

What we need is a Bill that focuses on principles rather than on process. These two amendments do that by preventing disappointed bidders from suing a contracting authority for process faults; they could sue only for breach of the objectives set out in Clause 11. I remind noble Lords that those are to do with: delivering value for money; maximising public benefit; sharing information; acting with integrity and being seen to act with integrity; and equal treatment of tenderers.

It is important to explain that the approach I am proposing is not necessarily tied to Clause 11, because certain noble Lords are proposing that the Bill be augmented with a further set of principles—the amendment in the name of the noble Baroness, Lady Hayman of Ullock, adds a set of principles to the objectives in Clause 11. My amendment is perfectly compatible with her approach. If the House decides that the objectives for the Bill and the principles underlying it are not sufficiently and adequately expressed in Clause 11 and that further objectives and principles are required, on Report my amendment could be adapted to fit in with those principles. In this particular debate, I am staying neutral on the various proposals for how to develop the principles; I am totally neutral on the noble Baroness’s amendment, because mine would fit with it if that is the direction that the House and the Government wish to take. It is important to bear in mind that I am not tying this explicitly to Clause 11.

It is also important to bear in mind something else that I said. This is not a Bill for combating fraud, corruption or malfeasance in public office. All those things are criminal offences. If a contracting authority commits those offences, it will be prosecuted not under the terms of this Bill but under the relevant provisions of the criminal law—and quite properly. What this Bill does is create a huge bureaucratic minefield for contracting authorities in which disappointed tenderers can sue for some sort of compensation or damages—not that they do so very often, but it is a chilling factor when it comes to the flexibility that contracting authorities should rightly have.

Now, some people would say that this would radically alter the whole approach of the Bill. I think it is a fairly radical alteration of the Bill’s approach, but I speak with some experience when I say that it would also make it a workable Bill. I hope that my noble friend, if he or she is not immediately inclined to agree, will at least explain why this approach does not commend itself to Her Majesty’s Government.

[Baroness Hayman of Ullock (Lab)]

My Lords, I shall speak to my Amendments 43 and 51 in this group and comment on the other amendments. I thank the noble Baroness, Lady Bennett, for supporting Amendment 43. Amendment 43 would reintroduce the procurement principles that were laid out in the procurement Green Paper and put them in the Bill.

The procurement Green Paper stated that the principles of the new regulatory framework for public procurement should be consistent with the Treasury’s Managing Public Money and the seven principles of public life as set out by the Committee on Standards in Public Life. The Green Paper states:

“The Government proposes that the following interdependent principles should be included in the new legislation.”


I shall remind noble Lords of the interdependent principles: they are public good, value for money, transparency, integrity, fair treatment of suppliers and non-discrimination. We absolutely support these principles, as I am sure all noble Lords do, because they are crucial for good business practice. Will the Minister say why these principles are not in the Bill as expected, particularly when we consider that, in the consultation on the Green Paper, the majority of the more than 600 respondents supported the principles for procurement being in the Bill? If we look at the Government’s response to the consultation, they said:

“The Government intends to introduce the proposed principles of public procurement into legislation as described.”


What has changed since then? Why now are those principles not in the Bill?

We believe that these principles are an integral part of procurement and a vital tool for setting out what this legislation wants to achieve and how its success will be judged. In the Bill as currently drafted there is a notable absence of mentions of equality or protected characteristics. The public sector equality duty requires public bodies to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people when carrying out their activities. This includes promoting equality and eliminating discrimination through public procurement as well as ensuring that the PSED is adhered to by those with whom public bodies contract.

Furthermore, this is important domestic legislation that asserts that international obligations on procurement in the UK entered into must be compatible with social objectives. We are concerned that the UK has signed a trade agreement with Australia that potentially threatens the inclusion of social criteria in procurement rules. The UK-Australia agreement states that social and labour considerations can be used in the government procurement process only when based on objectively justifiable criteria. This means that social criteria could be challenged by Australian companies via their Government as unjustified. Furthermore, the World Trade Organization’s government procurement agreement that the UK has acceded to does not contain social criteria for procurement. We believe that the current positron needs to be revised and that these principles should be clearly in the Bill.

Moving on to my Amendment 51, it would add proportionality to the procurement objectives. The Procurement Bill covers a wide range of goods, works and services and a range of scales from tens of thousands of pounds to hundreds of millions, but it can be implemented effectively only if proportionality is applied throughout the process. Ensuring the Procurement Bill is proportionate is also key to achieving two of the Government’s key aims in this legislation: to improve value for money and to open up the market to smaller providers, including charities. Proportionality is crucial to the effective procurement of person-centred public services through ensuring that resources are not wasted on overly complex processes when they are not necessary and that the most appropriate provider to run the service can be procured rather than being excluded because of their size or where this is disproportionate to the scale or nature of the contract. Proportionality is referenced in the legislation, but only in specific parts, yet we believe it is relevant right across the entire process.

NCVO, which represents over 17,000 voluntary organisations, charities, community groups and enterprises across England, and the Lloyds Bank Foundation have drawn attention to the fact that this Bill will impact on the services and support that people access. We therefore believe that it is important to ensure that it is appropriate for the commissioning of procurement of people-centred services that are delivered by a range of service providers that also include charities. Charities are often well placed to deliver these services because they are embedded in local communities. They are trusted by local people and often able to reach those whom other services fail to reach.

Procurement Bill [HL]

Baroness Hayman of Ullock Excerpts

Committee stage
Wednesday 6th July 2022 Grand Committee

I apologise to the Minister for springing a question of that kind on him. It may be that he would like to consider it and reply by letter at a later stage, but it puzzles me why Scottish Ministers are not included in the definition of “appropriate authority”.

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the noble Lord, Lord Wallace of Saltaire, for tabling these amendments in the first place, and I thank those Members who put their names to them. It is important that we have had the opportunity to debate the report produced by the Delegated Powers and Regulatory Reform Committee, a report that the noble Lord, Lord Blencathra, described as a scorcher. I think we all agree that there is a lot in here of great concern, and it is very important that we have spent this time going through it. I also thank members of the committee for the work they did in going into such detail on this very complex Bill, to draw our attention to their serious concerns and the problems that we need to look at and resolve.

I will not go into a great amount of detail. Other noble Lords have talked about the detail of the report so there is no point in my repeating that. I will just draw the Committee’s attention to a few things. My noble friend Lord Berkeley started the debate by expressing his concerns about the broad range of powers—the Henry VIII powers, as they are described—and other noble Lords have talked about their concerns about them. The noble Baroness, Lady Neville-Rolfe, felt that some of them were potentially dangerous. If noble Lords’ concerns are that strong, it is really important that we look at how to address them. She drew attention to a number of particularly damning paragraphs. There was also talk about the fact that a large number of clauses should be subject to the affirmative procedure rather than the negative one, and of course we absolutely support that.

I draw the Grand Committee’s attention to paragraph 60 of the report, which was the one that struck me in the context of the way that a lot of Bills, legislation and policy development have been happening recently. If noble Lords will bear with me, I will read it out. Talking about Clause 109, it says:

“This is, in effect, a skeleton clause as the real operation of the exemption process is to be left to regulations. We are very concerned that the Government appears to have chosen this approach for no other reason than that it hasn’t yet developed the underlying policy.”


That gives me great concern because it seems almost to be becoming the norm, and it is not the right way to go about making regulations and legislation. The DPRRC then talks about its Democracy Denied? report, which the noble Lord, Lord Blencathra, mentioned, and says that

“we drew attention to the issue of the inclusion of powers in bills which were, in effect, ‘a tool to cover imperfect policy development’. We said this was unacceptable and that we looked to the Government to undertake the systemic reforms necessary to prevent its happening. It is disappointing to find evidence in this Bill that this issue has not been addressed.”

That was the only further concern that I wanted to draw the Committee’s attention to today. A number of us have worked on a lot of Bills now, and there is a worrying lean towards this lack of policy development before Bills are drawn together and published. That is often why the Bills then come into so many difficulties. It would be better if all this was sorted out much earlier, so that we all knew where we were and could understand and better support the Government in producing good legislation. Some very interesting questions have been asked, including a very specific one from the noble and learned Lord, Lord Hope of Craighead, and I look forward to the Minister’s response.

[Lord True (Con)]

My Lords, I thank all those who have spoken. I take seriously the gravity of the remarks made. I assure my noble friend Lord Blencathra, whose chairmanship of the committee was distinguished—he can speak even more freely now that he is no longer in that role—that while I did not catch the names of all the individuals that he asked me to refer his remarks to, I will make sure that that is done as he requested.

On the question raised by the noble and learned Lord, Lord Hope of Craighead, it is a matter of regret —we discussed this on the first day—but the Scottish Government have declined to be part of this legislation. They do not wish to be. They wish to pursue their own course and obviously that is why they are omitted from the definition of an appropriate authority under the legislation. It would be odd if they were an appropriate authority to alter legislation which they declined to take part in. That is the explanation.

--- Later in debate ---

[Lord Berkeley (Lab)]

To go back to Amendment 20, the noble Baroness gave some useful explanation of the definition of a utility. I want to go on briefly to the example that the noble Lord, Lord Purvis, mentioned, which is freeports. That presumably comes under paragraph 5 of Schedule 4, on page 86. It is not clear to me whether any of the activities of a freeport are exempt or not. In other words, the freeport gets a load of money from the Government, but does it have to comply with the procurement regulations and everything else in the Bill? Does it have to be transparent about how it complies, whether it has sent out for three quotes or whatever, and whether the contracts have been awarded fairly? That is one example, and I expect there are many others in other sectors. It would be interesting to know because when we get to Schedule 2, there are so many different definitions in there that it is quite difficult to understand which applies to what. I am sure that, at some stage, the Ministers will try to give us some examples of all these different issues on page 81.

[Baroness Hayman of Ullock (Lab)]

My Lords, I must say, I find the utilities section of this quite confusing in some areas. The more clarification we can get from the Minister, the better. It is not just this bit; it is the fact that it is cross-referenced a lot right across the Bill and is impacted by so many other pieces of legislation, including internationally.

We talked with officials about the Australia trade agreement this morning; the noble Lord, Lord Purvis, raised this. I am still slightly confused as to how that all links together. Rather sadly, after the discussion, I went and found the relevant parts and read them. The Bill talks about universal service obligations, postal monopolies, exclusive suppliers and specified collection, transport and delivery services. I know that the Minister is not able to come back to us on this now but I would appreciate some kind of written explanation of how this all works together and what the implications are of having that kind of reference to postal services in a trade agreement. What impact does that have on future procurement legislation? Will the Procurement Bill have an impact on future trade agreements in this area? Personally, I find this quite confusing; it would be extremely helpful to have it laid out in a crystal-clear fashion so that we do not end up with this kind of confusion and the debates we are having.

I will not repeat all the things that noble Lords said when they talked about having more clarification on Schedule 2. I will just briefly come back to cross-referencing throughout the Bill. In the previous debate, we talked about the committee report, which again mentions Schedule 4, the utility activities exposed to competition, the provisions of the WTO agreement—the GPA—and so on. For me, a lot of this is about having a clear understanding of which utilities lie in this group and which lie in that group; which utilities will have to follow certain rules; which will be exempt; and how they will be exempt. I would appreciate proper clarification on all those areas because this is a lot to take in; a lot of it needs to be right as well.

I appreciate that I have asked the Minister to do quite a complicated task but, in Committee and certainly ahead of Report, that sort of information and clarification would be extremely helpful.

[Baroness Scott of Bybrook (Con)]

I thank noble Lords. We have listened—I thought that we explained the Australian postal services to the noble Lord, Lord Purvis, in our debate on a previous group—but obviously further questions still need to be addressed. As the noble Baroness, Lady Hayman, clearly said, the issues of utilities’ groupings and the rules that apply to each group are not yet clear enough. I know that will take extra time for everybody but I suggest that we pull together another meeting purely on utilities and their interaction, particularly with the trade agreements that are in place now and future trade agreements that could be in place.

At the same time, I remember freeports coming up in the first Committee debate. I do not have any further information but we will get that information and discuss it. If required, we will send a letter afterwards confirming everything we have discussed so that noble Lords have that in their packs.

I have good news for the noble Lord, Lord Wigley. I can assure him that this Bill will not change anything from the current regime with regard to Welsh water. I will not try to say it in Welsh because I am not very good at it. I hope that this assures him that everything is fine in Wales.

I think that the noble Lord, Lord Berkeley, brought up freeports on the first day of Committee. We will invite him to have a discussion on that.

These were minor and technical amendments that seem to have grown into something much bigger but they serve to clarify the Bill and ensure consistency on the provision of utilities contracts. I therefore hope that noble Lords will support them.

Procurement Bill [HL]

Baroness Hayman of Ullock Excerpts

Committee stage
Monday 4th July 2022 Grand Committee

[Lord Fox (LD)]

I will correct my speech. It has not even been received by all the interested parties, which makes it worse.

Furthermore, to date, the Cabinet Office has not provided proper explanatory statements for each of the new government amendments. There is nothing in the current Marshalled List. The eighth group, which we had planned to debate today, contains a group of amendments that was wholly absent from the Minister’s original letter and the table that some, if not all, of us received when that letter came. Essentially, we have had no time—hours, at best—to consider these amendments.

More than that, the Minister stressed the value of the external community and the input we get from interested parties in this legislation. Those interested parties have not had a little time to consider these amendments; they have had no time. They are not on the record for those bodies that can feed in and positively reinforce your Lordships’ legislative process. We are missing all that. So never mind the unintended consequences of this legislation—we do not even know what the intended consequences are.

For this reason, I put the Minister on a warning that I will object to each of his amendments. When the Question on Amendment 1 is put, I will be not content. My understanding of the process is that, in Grand Committee, this will mean that the amendment will need to be withdrawn.

[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 Fox (LD)]

My Lords, I am sure the Minister will pick up on the noble Earl’s Voltaire reference and tell us that we live in the best of all possible worlds. In my previous intervention, I mentioned the Government’s productivity. The noble Lord, Lord Moylan, appears to be spoiling that, trying to do in two Bills what the Minister is trying to do in one. I think one Bill on this may be enough.

The point raised by the noble Lord on utilities, developed by the noble Earl, is extremely pertinent. It is a wider question that spreads into things such as the Building Safety Act, for example, where there is an assumption that utilities have a particular role to play. Are hardwiring, broadband and things such as that utilities or not? There are wider implications in this than simply the nature of the Bill. There are questions to be answered.

There is also a precedent already forming in the Bill about public services being carved out. That is the NHS issue, of course, where separate legislation is pulling out some aspects of the jurisdiction of this Bill. I do not expect to have that debate on this group, because the Minister has helped us to move everything into one group. We can have that debate later, but the principle of carving things out has been accepted by the Government. In that respect, the tablers of these amendments have something to go on. The interesting question they are providing through these amendments is: what is in and what is out? In a sense, that covers part of our curiosity around the Bill.

We should not be too obsessive about this, and nor should the noble Lord opposite, because Clause 109,

“Power to amend this Act in relation to private utilities”,

allows the Government to turn the whole thing upside down anyway. Clause 109(1) says:

“An appropriate authority may by regulations amend this Act for the purpose of reducing the regulation of private utilities under this Act.”


In fact, none of this debate makes any difference because, by regulation, the Government can ignore themselves in any case. We already have a problem, Houston.

The noble Lord talked about the difference between private delivery of services and the noble Baroness, Lady Neville-Rolfe, talked about the fact that these organisations took on risk. With the train operating companies, when the risk turned around they just surrendered their licences. It is not real risk in the sense we might understand it in the private sector; it is a different world.

For that reason, I find it very difficult to go along with the amendments that try to extract private delivery of public service from the Bill’s ambitions. Large sums of money that have, lest we forget, originated from the pockets of UK citizens in the form of tariffs, fares or subsidies are then disbursed, or potentially disbursed, by the private companies as they procure things to deliver from their private sector the public services they are pledged and allowed by licence to supply. The Bill may, as the noble Baroness, Lady Neville-Rolfe, set out, interfere with the board’s licence to operate on a wider scale when it decides how to go about making purchases, but that is not unreasonable, given that it has hitched its wagon to a public service. When capital enters the business of delivering a public service, in my view it sacrifices the true independence to operate that it would have if it delivered a private service to private individuals. That is the deal: business gets to ply its trade on the condition that government and usually a regulator, but not always, meddle with its business model. It is a condition to operate.

For this reason, I am very interested to hear how the Minister will respond to your Lordships’ questions. These have been very worthwhile amendments and I thank the tablers. I look forward to the Minister explaining, first, what a “public service” is, secondly, what a “utility” is and, thirdly, where they sit in the context of the Bill.

[Baroness Hayman of Ullock (Lab)]

My Lords, this has been an interesting debate. It has been interesting to listen to comments on this area, particularly from the noble Baroness, Lady Neville-Rolfe, and my noble friend Lord Berkeley in their introduction to their amendments. Clearly, the changes proposed could have huge implications for utilities. There was a greater amount of flexibility for utilities in the Utilities Contracts Regulations 2016 that this Bill loses. The Government have acknowledged that consolidating the UCR with the Public Contracts Regulations will be a major and complex legislative exercise. Considering the issues we debated earlier, I hope that this is an area where we can work together to make sure we get it right for everybody involved.

One of the things we have to be careful about is not increasing bureaucracy when at the heart of the Bill is the desire to speed up procurement processes. I will note a few things in the briefings I have had on the Bill. First, it is worth noting the international Agreement on Government Procurement, which is within the framework of the WTO. It establishes rules requiring that

“open, fair and transparent conditions of competition be ensured in government procurement.”

Although it does that, it does not require WTO members to implement procurement rules for the utilities sector.

Furthermore, as we have heard, the UK is no longer obliged under EU law to implement procurement rules for the utilities sector. The UK’s utilities sector is, of course, very different from those in many of its European counterparts. Therefore, using solutions that were originally designed for European markets may not be appropriate for the UK. We need to take note of all that.

Procurement Bill [HL]

Baroness Hayman of Ullock Excerpts

2nd reading
Wednesday 25th May 2022 Lords Chamber

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the Minister for his comprehensive introduction to the Bill, which is quite complex in some areas. I begin by saying that we welcome this Bill. Changes to the procurement regime are long overdue, not least as a procurement Bill was promised in the last Session, so it is good that we finally have it before us today. I know from my experience of navigating OJEU just how complicated the EU procurement regime can be, so we support the Government’s stated ambition of speeding up and simplifying the processes. We welcome particularly the move from awarding contracts based on most advantageous tender, or MAT, rather than MEAT, the most economically advantageous tender, which will allow more flexibility around procurement, and the duty to consider breaking contracts into lots will also help social enterprises and SMEs.

The first part of the Bill, which replaces definitions that came about from long negotiations between EU member states with clearer definitions, has been welcomed across the board, as has the ambition to simplify rules and bring a range of existing rules together into one place. Having said that, recent events and investigations have shone a light on the clear failures of the current procurement regime and government practices during the Covid pandemic, with huge concerns raised in a time of great sacrifice for many people.

I heard what the Minister said on this matter in his introduction, but taxpayers’ money was wasted— £9 billion spent on PPE was written off, with £2.6 billion spent on items that were “not suitable” for the NHS. That is one in 10 of all items. There is also £800 million of additional stock that has not been used. We also know that there were major issues with direct awards. We appreciate that Governments have to act quickly during a crisis, but contracts worth tens of millions that were given out through the VIP fast lane, totalling almost £2 billion, lacked scrutiny or transparency. This Bill gives us the opportunity to fix that—to put in place a rigorous procurement regime which would prevent these practices happening again.

We are concerned that transparency seems to have slipped down the agenda when compared to the original proposals in the Green Paper. The Public Contracts Regulations 2015 have more on transparency than the Bill before us, so why are the Government taking a step backwards? Since the Government did not comply with the current transparency rules during the pandemic, can the Minister reassure noble Lords that this is not because they are finding transparency rules a little bit tricky to comply with? While we welcome the Bill, we do have concerns that many of the positive changes proposed in the 2020 Green Paper and the Government’s response to the consultation appear to be either missing or watered down, despite being welcomed by business, industry, trade unions and other stakeholders.

What we need from this Bill is a genuine commitment to reshape procurement to the very highest standards—from the integrity of the process to the delivery of real social and economic value. While we will no doubt explore these issues in more detail in Committee, I would like to raise some of my key concerns with the Minister at this stage. I look forward to clarification in his response today and further discussion on how improvements can be made as the Bill progresses through your Lordships’ House.

Turning first to the principles, the majority of the more than 600 respondents to the Green Paper consultation supported legal principles for procurement. In their response, the Government stated that they would

“introduce the proposed principles of public procurement into legislation as described”.

The proposed principles are

“public good, value for money, transparency, integrity, fair treatment of suppliers and non-discrimination”,

and we absolutely support them.

However, disappointingly, Part 2—“Principles and objectives”—does not have the principles laid out clearly in a clause on the face of the Bill, despite doing so for the objectives. The principles are an integral part of procurement. They are a vital tool for setting out what legislation is designed to achieve and by what its success will be judged. The rest of the world knows this; almost every other piece of procurement legislation in the world starts with clear principles, so it is surprising that this is not in the Bill, and we believe that this needs to be revised. Furthermore,

“acting, and being seen to act, with integrity”,

as set out in the objectives, could also include a wider duty of transparency. Even in the midst of a crisis, integrity and transparency should be non-negotiable.

Looking at the objectives, we believe that the Government are wasting a huge opportunity to put the environment and tackling climate change right at the centre of how public money is spent. Why is there no mention of this in the objectives, no commitment to sustainable procurement, and no duty for all government departments to comply with the carbon reduction plan and demonstrate sustainable procurement performance? If the Government are to achieve their goal of net zero, climate and nature goals must be an integral part of any new legislation that will have an impact on its delivery. Does the Minister not agree that sustainable procurement will help avoid damage to the environment while at the same time generating benefits for business, society and the economy?

Another gap in the Bill is a commitment to social value, which does not appear at all. There should be specific reference to social value being part of the public benefit in order to provide clarity to public bodies, companies and social enterprises. Social value should be embedded in the procurement system through appropriate guidance and reporting requirements for public bodies, as seemed to be the case in the Green Paper proposals. In fact, the Government’s response to the consultation stated:

“A procurement regime that is simple, flexible and takes greater account of social value can play a big role in contributing to the Government’s levelling-up goals.”


I absolutely agree. As a matter of principle, social value will improve circumstances for residents by bringing money and jobs to local areas, which should in turn go some way towards helping to level up the country.

This is especially true in more disadvantaged areas. A more responsive, community-focused supply chain spreads the social value net further, helping to maximise environmental and social well-being at every level, and would contribute positively to the Government’s levelling-up ambitions. So why is it no longer in the Bill? Have the Government already given up on their levelling-up goals, or does the Minister recognise that this is an oversight in the drafting that needs to be corrected?

The Government’s 2019 manifesto asserted that the public sector should

“‘Buy British’ to support our farmers and reduce environmental costs.”

Public procurement has the potential to create thousands of jobs for UK farmers and food producers and to help deliver the Government’s climate and nature emergency commitments. Can the Minister outline how the Bill before us will achieve those commitments? We need to do what we can to ensure that far more public contracts are awarded to British businesses—something that will have a positive effect on our economy but also support those who are struggling to get through the current cost of living crisis.

Moving on to the fair treatment of suppliers, we have concerns that the language on requiring contracting authorities to make impartial decisions without conflict of interest has been weakened, as too has the important principle of non-discrimination. I hope that the Government will therefore commit to tightening up these areas of the Bill as we move into Committee.

The Green Paper included a positive commitment to the digital single suppliers portal, operating on a “tell us once” principle. This would not quite level the playing field between supersized corporate bidders such as Serco and SMEs from across the country, but it would certainly be a step in the right direction, removing an unnecessary obstacle for smaller, less well-resourced options. My understanding is that this is still the Government’s intention, but I can see nothing in the Bill to ensure that it will actually happen. Do the Government remain committed to putting this on a statutory footing, or will further regulation and guidance be published? If this is linked to other digital systems such as Contracts Finder—again, I hope the Minister can confirm that this is still happening—it could also help to level the playing field when contracting authorities are making decisions.

There are also several areas of exemption in the Bill. Part 13 includes powers

“to disapply this Act in relation to procurement by NHS in England”

and

“to amend this Act in relation to private utilities”.

Schedule 2, “Exempted contracts”, includes defence and security contracts, which my noble friend Lord Coaker will consider further in his winding-up speech. What criteria were used to draw up this group of exemptions? Following the Minister’s introduction, can he clarify exactly how ministerial discretion for NHS procurement will apply? For example, what services is this intended to cover? Will it apply just to clinical services? I am sure your Lordships’ House will agree that we do not want to see a repeat of what happened during the pandemic.

The Minister mentioned—and we are aware—that there is going to be a six-month lead-in for the implementation of the Act’s provisions once it is passed. Even so, there will be significant challenges to meet the timescales, considering the number of changes proposed in the Bill. Does the Minister agree that the Government will need to provide substantial support; for example, for staff training, for communicating the many changes to the system to prospective suppliers, and to cash-strapped local authorities? If so, will he outline what that support will look like?

This really is an opportunity for the Government to be bold, to address these concerns, and to help rebuild public confidence in how taxpayers’ money is spent. There is much in the Bill that I have not had the time to cover today, and we will, of course, be tabling amendments to try to improve it. I offer the Minister our constructive support to work closely with him and his department officials so that, by the time it leaves this place, it will be truly fit for purpose.

Elections Bill

Baroness Hayman of Ullock Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, briefly, we on these Benches will vote for both amendments on matters of principle, because we believe in constitutional democracy and citizens’ rights. Sadly, throughout our discussions on this Bill, the Minister has resisted attempts to discuss this as a constitutional issue and as a matter of principle. Indeed, as the Bill has gone through the Government have removed this area from the Cabinet Office and put it in with housing and local government under the Department for Levelling Up, so that the Commons committee on constitutional affairs will no longer cover such things as this. I regret that, too; it seems to me entirely improper.

I recall the noble Lord, Lord Hannan, making a very powerful speech some while ago on the importance of process in politics. By “process” I take him to mean the way in which we conduct ourselves in the political world, including the rule of law and institutional checks and balances Those conventions of political life are a fundamental part of democracy. That is what this Bill has failed to reinforce. I think we all recognise that a future Prime Minister or a future Government will have to return to this issue and produce a much better Bill that can command more cross-party support.

The amendment in the name of the noble and learned Lord, Lord Judge, addresses the question of parliamentary sovereignty—not Executive sovereignty. My noble friend Lord Rennard’s amendment addresses the question of the right of every citizen to take part in the political life of the country and not to face unnecessary barriers. One of the many adverse effects of the Bill is that it makes it much easier and without barriers for overseas citizens to vote but more difficult for domestic citizens to vote. That is very odd, not entirely democratic and undesirable.

For those and other reasons, and on matters of constitutional principle, which the revising House should have particular concern for, we will vote for both amendments.

[Baroness Hayman of Ullock (Lab)]

My Lords, in his opening remarks, the Minister talked about the post-legislative scrutiny that is going to be on the face of the Bill and said that this would include reviewing and monitoring further forms of acceptable ID. He mentioned that the Bill includes the provision to add further acceptable forms. We welcome that. I hold the noble Lord, Lord Willetts, in the highest regard and thank him for pressing the Government in his previous amendment on the importance of furthering the number of IDs that can be used.

Having said all that, we believe, as the noble Lord, Lord Rennard, said in introducing his amendment, that the Government have simply got it wrong on requiring voter ID to be presented at polling stations. We are disappointed and unhappy that there has been absolutely no movement whatever from the Government on this and that they have not wished to include any further accepted forms of ID in the Bill. If the Bill moves forward on ID as it stands, will the Minister provide assurances as to how the requirements for photo voter ID will be introduced, how local government will be supported, and what mitigations will be put in place to ensure that no elector will be disfranchised as a result of the Bill?

We very much welcome the amendments in the name of the noble and learned Lord, Lord Judge, on the Electoral Commission. There is clear concern, right across this House, about the undermining of the independence of the Electoral Commission. I will not go into any detail because we need to move on. The noble and learned Lord clearly laid out why there are still deep concerns in this House. The small amendments that he has offered would resolve these issues and greatly strengthen the Bill before it reaches the statute book. We agree wholeheartedly with what the noble and learned Lord, Lord Judge, is trying to achieve and support his decision to ask the other place to think once again on what is a matter of extreme constitutional importance.

[Lord True (Con)]

My Lords, for the convenience of the House—I know it is late and I have made my arguments and placed them before your Lordships—but I was asked a couple of specific questions.

In response to the queries of the noble Baroness, Lady Lister, there has been correspondence with her and officials through the list of organisations that we consulted. We have affirmed that there is and will be ongoing consultation as part of the implementation programme. I can certainly say in the House that we will undertake to continue to consult the organisations that have been discussed as we go forward. I can give her that assurance.

One thing raised in the debate was that the noble Lord, Lord Carlile of Berriew, said that we were doing this because of Prorogation. That was something injected into the debate by another Member of your Lordships’ House. I remain at the disposal of your Lordships. If noble Lords wish to be here again and again on this matter, I will rise to respond. The matter referred to is immaterial.

Elections Bill

Baroness Hayman of Ullock Excerpts

3rd reading
Monday 25th April 2022 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, perhaps I may remark to my noble friend Lord Rennard and the noble Lord, Lord Hayward, that in the process of this Bill I have appreciated that it is possible to be quite astonishingly, nerdishly expert on the details of elections to the degree to which the two of them and one or two of our colleagues on the Labour Benches are. That goes far beyond my limited experience, having fought only five elections in my life. They really understand the details in all sorts of ways. I have done some of my electioneering in some of the more difficult parts of the United Kingdom.

I thank the many pro-democracy organisations that have helped and advised us and lobbied about the Bill as it has gone through: Best for Britain, Unlock Democracy, the Electoral Reform Society, the Joseph Rowntree Foundation and the Democracy Defence Coalition. I particularly thank Elizabeth Plummer in our Whips’ Office, who has done superb work with others around the House to make sure that the amendments are there on time.

It is difficult to welcome this Bill. It came to the House accompanied by a number of very critical reports, including one from the constitutional affairs committee of the House of Commons, which said that the Bill in its current form was not fit for purpose. We have improved it a little—we now face ping-pong on some of those improvements—but it is still not entirely what is needed.

As the noble and learned Lord, Lord Judge, said, rather powerfully, this is a constitutional Bill on which there was an absence of cross-party consultation or consensus on the fundamentals of our constitutional democracy—that is a worry. We will have to return to this. The next Parliament, whenever it comes, will have to undertake the job of simplifying and clarifying electoral law, which is what we should have been doing—and have failed to do—with this Bill. Perhaps there are some improvements, and there are certainly some necessary changes in this Bill. There are a number of other areas which we on these Benches bitterly regret and, for that, I can make only moderate thanks to the Minister and the Bill team for what has been achieved.

[Baroness Hayman of Ullock (Lab)]

My Lords, I start by saying that I agree with the noble Lord the Minister that this Bill is improved and strengthened having gone through this House. This Bill is a clear demonstration that your Lordships’ House can really prove its worth when a Bill comes that is not really good enough. I thank the Government and the Minister for bringing forward some important changes and concessions which have improved the Bill considerably.

I also believe that your Lordships’ House has sent a very clear signal to the Government about concerns around, in particular, photographic ID and the independence of the Electoral Commission. I thank my colleagues, my noble friends Lord Collins and Lord Khan, for their support and all the work that they have done on this Bill. I also thank Ben Wood, in our office, who has worked like crazy on this Bill and others, providing really important support.

I thank the many noble Lords who have taken part in debates on this Bill and who have contributed to making it the better Bill that it is today. In particular, I thank the noble and learned Lord, Lord Judge, for his important work demonstrating our concerns around the Electoral Commission. I also thank the noble Lord, Lord True and the noble Baroness, Lady Scott, for their time and consideration of our concerns. They have given us a lot of time and some of the concessions that we have had are extremely gratefully received and have made the Bill much better. I also thank the officials, because they also gave us that time to try to improve things in this way. I join the noble Lord, Lord Wallace, in thanking the many organisations that have provided time, briefings and the detailed information that has helped us to understand some of the complicated areas of electoral law.

I just end by saying that I hope that we can continue to work together constructively to address the outstanding areas where we believe we can still make more progress.

Elections Bill

Baroness Hayman of Ullock Excerpts

Report stage
Monday 25th April 2022 Lords Chamber

[Lord Wallace of Saltaire (LD)]

My Lords, my name is on these amendments. We have had a very powerful debate from all sides of the House, and I suggest that we now ought to move towards the Minister’s response.

I remind the Minister of the constitutional context we are in and of his responsibilities as, in effect, the only member of the Government with responsibility for the constitution and constitutional propriety. Noble Lords may not be fully aware that, since the last reshuffle, there is no longer any Minister within the Government who has been given the specific responsibility of being Minister for the Constitution. The responsibility for this Bill has been moved from the Cabinet Office to the department for levelling up, communities, local government and various other things which provide a very extensive portfolio for Michael Gove. That leaves the Minister in some ways stranded, but in other ways he is the only member of the Government—apart from the Prime Minister himself—who specifically has responsibility for constitutional propriety among his major responsibilities.

The Minister will be well aware that the noble Lord, Lord Wolfson of Tredegar, referred to issues of constitutional principle in his resignation letter and that, before him, the noble Lord, Lord Faulks, also resigned on a matter of constitutional principle. I hope that the Minister will address the constitutional propriety of these two clauses in winding up. After all, we are in a wider constitutional crisis, both domestically—I have referred to the context of that—and internationally, given what is happening in Ukraine and the growth of autocracies around the world.

The noble Lord, Lord Finkelstein, who sadly is not in his place, addressed Britain’s constitutional crisis in his article in the Times last Wednesday. He reminded his readers:

“The British constitution, because it is unwritten, is particularly vulnerable to its limitations being resisted at the top of government … It is the responsibility of parliamentarians, and in particular Conservative ones, to insist”


that constitutional rules and conventions are followed. I welcome the reaffirmation made by the noble Lord, Lord Finkelstein, of the Conservative Party’s proud tradition as the constitutional party—from Burke through successive Salisburys to the noble Viscount’s father, Lord Hailsham—and I regret our current Government’s failure to maintain fully that tradition.

I invite the Minister to explain to the House how he considers these proposals to be compatible with Conservative principles of limited government and parliamentary sovereignty. If he cannot reconcile the tried and tested principles of Conservatism—about which he has often spoken eloquently—with these proposals, he should accept that they should be removed.

[Baroness Hayman of Ullock (Lab)]

My Lords, we very much welcome these amendments. We thank the noble and learned Lord, Lord Judge, for tabling them and for his excellent and clear introduction on his concerns about the implications of leaving these clauses in the Bill. I will be brief, as he and many other noble Lords made excellent speeches today.

We have made it extremely clear on previous stages of the Bill’s consideration that we are extremely concerned about its intention to make provisions for a power to designate a strategy and policy statement for the Electoral Commission, drafted by government. As other noble Lords have said, this would allow political interference in the regulation of our elections and calls into question the independence of the Electoral Commission from government and political control. This simply cannot be allowed to happen. It is a dangerous precedent. If we look at similar democracies such as Canada, New Zealand or Australia, there is always a complete separation between government and the electoral commission. It is essential that our regulatory framework strikes the right balance between upholding the independence of the Electoral Commission and ensuring it is properly scrutinised and held to account. The noble Lord, Lord Hayward, made some good points about the fact that we need to look at how it operates, but this is absolutely not the way to go about it.

I remind those noble Lords who have said that this is not of any concern that new Section 4B(2) in Clause 15 says that:

“The Commission must have regard to the statement when carrying out their functions”—


“must”, not “may”. That is what really concerns us. We have had many excellent speeches, so I urge the Minister to listen very carefully to what has been said in the defence of our democracy. That is what we are talking about. We fully support these amendments and urge other noble Lords to do the same when this is put to the House.

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

My Lords, I have not detected universal enthusiasm for these clauses in the debate, but I will seek to persuade your Lordships that they should remain. Of course, in remaining, one of the things they do is provide a basis for further discussion.

Your Lordships’ House is a revising Chamber, but we do not have here amendments to revise. These amendments would simply remove clauses on the basis of arguments which, in my submission, are exaggerated in their concerns, although I understand and share the concerns for democratic responsibility and respect. We have even heard several threats to kill the whole Bill. I must remind noble Lords that this is a Bill that prevents election fraud and abuse; introduces the first controls on digital campaigning; cracks down in many ways on foreign spending; and improves the integrity of postal voting. These are matters which have wide assent across the Chamber and across both Houses. It would not be wise or proportionate for your Lordships to consider killing those proposals on the basis of this particular issue.

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Moved by

[Baroness Hayman of Ullock]

63: After Clause 60, insert the following new Clause—
“Permissible donors
(1) Section 54 (permissible donors) of PPERA is amended as follows.(2) In subsection (2)(a), after “register” insert “at the time at which the donation is made, but not an individual so registered as an overseas elector”.”Member’s explanatory statement
This new Clause would prevent overseas electors donating to political parties in the UK.

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the noble Lord, Lord Wallace of Saltaire, and the noble Baroness, Lady Bennett of Manor Castle, for their support. This amendment would prevent overseas electors donating to political parties in the UK. We had quite a debate about this in Committee so I will not go over all the points, but I want to talk about the reasons behind our concerns and to raise a few key things.

We are concerned that the change to remove the 15-year limit on registering overseas electors creates a loophole in donation law that would allow wealthy donors unlimited access to our democracy and the opportunity for unprecedentedly large donations. We do not believe that foreign donors should be allowed to financially influence our democratic processes; that right should be reserved for citizens who actually live in this country. The Electoral Commission recommended introducing new duties on parties to enhance due diligence and risk assessment of donations based on existing money laundering regulations, which would protect parties and build confidence among voters, so that sources of party funding would be thoroughly and properly scrutinised.

We are therefore disappointed that the Bill does nothing about this and does not bring in what is urgently needed—an effective regulatory and enforcement regime to ensure that foreign money and dark money cannot enter our political system through donations to political parties. We have tabled Amendment 63 to protect our democracy from this foreign money, which we know is already impacting our politics. Concerns about how our democracy is being influenced by malign foreign influences has been highlighted already in the Russia report. That was debated at length in Committee, so I will not go into that any further, but it provides a clear example and concern.

Our fear is that the Government have, potentially inadvertently, created a system vulnerable to overseas interference. It allows a person to call up any or every local authority to say they were resident in the area 30 or 40 years ago with pretty flimsy proof and then be able to be registered and donate enormous sums of money. That is our key concern. When this was debated in Committee, the Minister said that if you have the right to vote, you should have the right to donate. Although I understand entirely the principle behind this, it does not address our very real concerns. If I am not satisfied by the Minister’s response that there is genuine recognition of this concern and that action will be taken by the Government to stop this potential foreign influence on our elections and political parties, I will wish to divide the House.

[Lord Wallace of Saltaire (LD)]

My Lords, my name is on Amendment 63. I strongly support it and I trust the House will give it its support. The absence of any detail from the Government on how they will implement the idea of overseas votes for life is quite remarkable. There is nothing on how they would check the bona fides of expatriates claiming to be citizens and to have lived in particular UK constituencies, perhaps half a century ago, in contrast to the proposals to tighten domestic identity checks. There is nothing on new measures for getting ballots out to these new voters and returning them in the span of our short campaigns. From the hundreds of messages I have had from expatriate voters, that is one of the issues about which they are most concerned: how difficult it is to get the ballots out or get them back. There is nothing on the current distribution of overseas voters in constituencies or how the expansion might affect the current balance of our constituencies in terms of size and the equalisation of the numbers of voters in each. The Government do not know what the current distribution of voters by constituency is—at least, the Minister did not when I submitted the Written Question to him—or how overseas voters are distributed by overseas countries or how many would be likely to register.

In these circumstances, one has to conclude that the Government’s main objective in extending expatriate votes for life is to tap wealthy donors who long ago moved abroad to avoid paying UK tax to increase the structural advantages from which the Conservatives already benefit in funding electoral campaigns. All the amendments in this group address the huge question of how to maintain a level playing field in the financing of political campaigns. This is one of the many issues on which the Bill falls short. Noble Lords will recall that the Committee on Standards in Public Life published a substantial report on political finance last summer, just two days after the Government had published the Elections Bill. The Government have made no effort since then to incorporate its proposals into the Bill, in spite of introducing a number of other significant amendments.

We all recognise that uncontrolled flows of money into political campaigns can unbalance and corrupt democratic politics. We see the extent to which American politics has become the plaything of the super-rich. Noble Lords may have noted that in the last three months of 2019, in the run-up to our last general election, two-thirds of the money reported by the Electoral Commission to have been contributed to UK parties flowed to the Conservatives. Quite possibly, as much again flowed to the think tanks of the right, including from non-UK citizens in the USA and non-democratic states. We are drifting closer to the American situation, with the difference that only one of our major parties has easy access to large-scale donors.

As other amendments in this group suggest, we need a broader review of political funding than the Bill permits. Amendment 63 thus offers a stop-gap measure. Those who have moved to Monaco, the Channel Islands, the Isle of Man or Caribbean tax havens to avoid paying UK tax should not be permitted to bias our domestic politics by funding political campaigns. Yes, we should allow them to vote as citizens. But we have learned from flows of money from Russia and right-wing foundations in the USA that the buying of influence over British politics from overseas undermines the level playing field that democratic campaigns depend on and that I hope the Minister still supports. It also corrodes trust in the integrity of our democratic process. I regard Amendment 63 as an important stop-gap measure until, perhaps, a different Government tackle the question of political finance and its regulation. I hope the House will support it.

--- Later in debate ---

[Lord True (Con)]

My Lords, again, I think that is a false question. In our democracy an independent person is entitled to stand in a constituency, for a cause that he or she believes in, and may choose to fund that campaign. Nobody else may want to give any money. That would be an example of 100% funding of a campaign by a small campaign or individual. There are complexities here, and the fundamental position to stand on is that in free democracy, people should be able to make a contribution of whatever sort they choose, provided it is permissible and legal.

[Baroness Hayman of Ullock (Lab)]

My Lords, it has been very clear from the debate we have just had and the other amendments that have been discussed, as well as my Amendment 63, that there are some really broad concerns about political donations, electoral finance and the procedures and systems that underpin and manage this. I urge the Government to take away those concerns more broadly and consider how they may be addressed in the future.

In response to the noble Lord, Lord Butler of Brockwell, I thought I had made it really clear, both in Committee and in my opening remarks today, that we are very concerned about the potential for dirty money infiltrating and influencing our political system. If I was not clear, I am very happy to confirm that we do have those very deep concerns.

I thank the Minister for his very detailed response, but I disagree with him that the Bill makes it harder to make overseas donations. Instead, our concern is that part of removing the 15-year limit actually makes it easier for people from foreign locations to donate to our political system. We are concerned that often it allows very wealthy donors unlimited access to our democracy, through what we could see to be unprecedentedly large donations. That is our big concern with this and why we have put this amendment forward. To avoid that kind of outside influence in our democracy, the right to make those kinds of donations should be reserved for citizens actually living in this country.

As I say, I thank the Minister for his detailed response, but do not believe he has addressed the real concerns expressed by us and other Members who have taken part in the debate. Therefore, I wish to test the opinion of the House on my Amendment 63.

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Moved by

[Baroness Hayman of Ullock]

64: After Clause 60, insert the following new Clause—
“Review and consolidation of electoral law
Within 12 months of the passing of this Act, the Secretary of State must publish a timetable for undertaking a wholesale review and consolidation of electoral law.”Member’s explanatory statement
This amendment would implement a recommendation of the House of Commons Public Administration and Constitutional Affairs Committee in its report on the Elections Bill.

[Baroness Hayman of Ullock (Lab)]

My Lords, our Amendment 64 looks to bring in one of the recommendations that came from PACAC around the consolidation of electoral law. The Elections Bill makes substantial changes to electoral law, but it does not tackle something that has been fundamentally and widely recognised: the need to consolidate the existing voluminous and fragmented body of electoral law. Amendment 64 aims to address this.

PACAC has done a number of reports on electoral law. In 2019, Electoral Law: The Urgent Need for Review noted that even the most professional agents can worry about falling foul of electoral law and the complexity that it currently contains, and that this provides serious risks and difficulties for electoral administrators. PACAC has been recommending for some time now that the Government should look at prioritising non-controversial consolidation of electoral law that can command cross-party support. Much of this would have cross-party support because we all recognise that this needs sorting out. Once that consolidation has been achieved, the Government should proceed to evaluate the effectiveness of electoral law more generally to see where we could bring in further reforms to make it more straightforward for those involved in it to manage.

I am aware that the Government agree in principle that electoral law needs consolidation but at the moment consider that there are more immediate challenges outside of the structures, which presumably is what much of the basis of the Bill before us is looking at. We agree with PACAC that electoral law needs looking at. It needs consolidating and, in many areas, it needs simplifying. We have tabled this amendment to ask the Government to look very seriously at this recommendation and to take some action on it, if not now then as soon as is practically possible.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I was delighted to sign this and could see from the Minister’s face that he was thoroughly in agreement that it is a very good move. It is a constructive suggestion of something that desperately needs doing. We are rushing to pass legislation in this final week or fortnight of the parliamentary Session, but this is an early request to the Government to include an election law consolidation Bill in the coming Queen’s Speech. It would be very practical and, as the noble Baroness, Lady Hayman of Ullock, said, it would have cross-party support, so it would be a rather nice note to start the new parliamentary term on.

A lot of the groundwork has been laid already. The Commons Public Administration and Constitutional Affairs Committee produced a report on this in 2019 and the Law Commission has done extensive work as well, which culminated in a 207-page report with 106 recommendations. That sounds a very practical document. The recommendations include consolidating and modernising our election law, which is currently spread across 55 Acts of Parliament and over 200 other pieces of legislation, most of which are derived from centuries-old rules and regulations.

Modern electoral rules would make the administration of elections more straightforward and more accessible to the public. Better democracy is better for everyone, as we have been saying all afternoon, but this will be particularly important for independent candidates and smaller parties, because at the moment they are navigating a minefield. There is always a risk of innocent mistakes.

I hope that the Minister will respond very positively to this and that we can look forward to supporting him wholeheartedly on a Bill in the next Session.

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[Baroness Hayman of Ullock (Lab)]

My Lords, I always do my very best to be inoffensive, so it is nice to know that my amendment has been appreciated. It is good to hear from the Minister that the Government in principle support what we are trying to achieve with it. This may take a long time and it may be complicated, but it will be very worth while in the end and I encourage the Government not to throw this away and to keep it as something to be done in the near future, if possible. In the meantime, I beg leave to withdraw my amendment.

Amendment 64 withdrawn.

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Moved by

[Baroness Hayman of Ullock]

69A: After Clause 60, insert the following new Clause—
“Non-resident donors
Within the period of 3 months beginning with the day on which this Act is passed, the Secretary of State must make an order under section 43 of the Political Parties and Elections Act 2009 so as to bring section 10 of that Act (non-resident donors etc) into force.”Member’s explanatory statement
This amendment requires the Secretary of State to bring the provisions of section 10 of the Political Parties and Elections Act 2009, relating to non-resident donors, into force within 3 months of this Act being passed.

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[Baroness Hayman of Ullock]

My Lords, this amendment was not tabled in Committee. This is the first time we have looked at it. It addresses recent concerns that have been raised around non-dom status and donations from non-doms. I thought it was important that this was acknowledged during our discussions on the Bill.

The Labour Party believes that non-dom status should be abolished. We have recently made that very clear. We believe that there should instead be a modern scheme for people who are genuinely living in the UK for short periods. We want to address the fact that we can have small group of high-income people who live in the UK and are able to access non-dom status. We do not believe that they should be able to continue to avoid paying UK tax on their overseas income for up to 15 years, as is currently possible with the system we have at the moment.

We believe we should look at the systems in other countries and put in place something similar that is suitable for our country. For example, Japan, France and Canada have much better systems in place, where genuinely temporary residents who are here for short periods would not pay tax on overseas income gains, but that would not be possible for those who are here much longer.

This would bring about a clear, simple system. If we look at what we are doing at the moment, the rules are around 200 years old. It also means that the domicile is passed down through people’s fathers. It seems extraordinary that we still work by those laws. Surely it needs to be properly looked at and considered. I understand that HMRC has to use four complicated flow charts just to determine someone’s domicile. We have been talking about simplifying electoral law; this is something else that clearly needs looking at and simplifying.

We think that a temporary tax regime for residents would work. It would provide some tax advantages, but only for short periods of time, unlike the way the system is at the moment. Fundamentally, we believe that if you make your home in Britain long-term, you should pay tax here on all your income.

We are also concerned that the current system prevents non-doms investing their foreign income in the UK, as bringing it here means that it then becomes liable for UK tax, so there is no advantage for them to do so. That means that non-doms who earn income in tax havens and other low-tax jurisdictions would face a large financial penalty if they attempted to bring that income here to the UK. We do not believe that this is good for business; we should be encouraging more investment in the UK through these wealthy people.

We are aware that the Government have a business investment relief scheme which is intended to fix this, but we do not believe that it is working properly. The latest figures show that less than 1% of non-doms invest their overseas income in the UK in any given year, and that cannot be good for UK business. In addition, if we made these changes, it would bring us into line with other major economies. The UK is one of the only large economies which has these arrangements. As I have said before, France and Canada, for example, have different regimes, as does Germany.

This issue needs serious consideration. The Government need to address it and the Elections Bill provides an opportunity to do so. I will be interested to hear what the Minister has to say in response. However, because this is such an important matter and it needs to be dealt with, if I do not hear from the Minister serious ways in which it can be addressed, I will consider testing the opinion of the House.

[Lord Rennard (LD)]

My Lords, elections and donations are about choice. People who have non-dom status choose not to pay their tax here and, while they have this status, they live abroad for more than nine months of the year. The fundamental question raised by this amendment is: should they be able to donate the perhaps millions of pounds which they save in taxes by being non-doms to a political party, for example, which might want to preserve that beneficial tax status for them? In other words, we might connect the two principles of being able to give millions to a party and benefit by not paying millions which other people might consider are owed in taxes.

There are a number of occasions in our debates when we say that what we are doing is asking the other place to think again. However, we are not, on this principle, asking the other place or even this House to think again. The legislation which said that non-doms should not be able to donate to political parties was passed by both Houses in 2009. So we are not asking anyone to think again; we are simply asking for the legislation, passed with the approval of both Houses, to be implemented. Since 2010, various excuses have been put forward as to why this has been supposedly difficult or impractical, even though it was approved by Parliament. Essentially, the excuse provided is that the HMRC says, “Well, all tax issues are confidential, so you can’t implement this”. However, a form of declaration accompanying any donation, saying, “I am not a non-dom, so I am entitled to donate”, might well suffice and fit the bill. If you were making a false declaration, that could be an offence.

However, I do not really accept the HMRC’s argument—or rather, the Government’s argument put forward on behalf of the HMRC. For example, when Parliament said that if you are a higher-rate taxpayer, you should not benefit from child benefit—which I think was a fair measure—you needed to sign a declaration to the HMRC saying, “Someone in this household pays a higher rate of tax, so I can’t receive child benefit”. Why, therefore, can you not sign a declaration saying, “Someone in this household is a non-dom and therefore cannot donate to a political party”?

This debate is really about some of the fundamental parts of the Bill. The extension of the right to vote beyond 15 years is not really going to extend voting rights for very many people. For the reasons I outlined at Second Reading and will not go through again, the postal vote system, needed by most people who vote overseas, is so slow that very few votes would count in a general election. However, through this Bill the ability to donate unlimited amounts of money is being extended to a lot of people, including non-doms. A little earlier today, when discussing a technical aspect of the Bill, the Minister kindly confirmed that the Government’s position is very much to maintain a level playing field at local constituency level and nationally. However, I do not believe that this is happening. This extension of the right to vote is more about the right to donate, and should not be applied to non-doms.

In December 2020, the Government said that they wanted to increase the national expenditure limits for political parties in a general election “in line with inflation”. In 2000, Parliament agreed that there should be a level playing field between the main parties in elections. The principle was very much that it had to be a level playing field, not that each of the parties should be able to spend up to £20 million. If we increase that £20 million limit, or thereabouts, by the rate of inflation since 2000, that is a 79% increase. Therefore, the national expenditure limit, if increased in line with inflation since 2000, would go up for the Conservative Party, for example, from almost £20 million to almost £36 million. Where is that extra £16 million going to come from? Much of it will come from overseas donors, many of whom are non-doms. I do not think that this appeals to the British sense of fair play, and it should not happen.

[Lord True (Con)]

My Lords, I fear that I am not going to be able to allow the noble Baroness to remain in her seat for the rest of the evening. The Government cannot agree to these provisions, which seek to bring into practice a provision from the 2009 Act regarding donations from non-resident donors. Noble Lords will recall that in Committee, my noble friend Lord Howe replied to the approach of the noble Lord, Lord Rennard, on this same uncommenced provision.

The Government’s position on the matter remains unchanged, but it is important briefly to place on record the reasons why. The Government have no current plans to bring into force the uncommenced provision, Section 10, regarding donations from non-resident donors. It would be extremely difficult to make the provision work, as the Electoral Commission warned in 2009 when the Bill was going through Parliament. The coalition Government, in which the noble Lord, Lord Rennard, was influential, did not implement it between 2010 and 2015. The fundamental issue is that it is not workable, given that an individual’s tax status is subject legally to confidentiality. It would therefore be difficult or even impossible for the Electoral Commission, political parties, which would face fines for this, and other campaigners accurately to determine whether a donor met the test set out in Section 10.

I acknowledge that the Labour Party has come forward. I do not wish to get into a debate about the Labour Party’s fiscal proposals—that is slightly outside the scope of the Bill—but I know that Sir Keir will send a thank you letter to the noble Baroness for having raised this issue. Our principle, basically, is that taxation is not the basis of enfranchisement in the UK. As a British citizen is able to vote in an election for a political party, they should be able to donate, subject to requirements for transparency in donations, which we have discussed. There is also a precedent whereby those who do not pay income tax rightly remain entitled to vote. A lot of low-paid people do not pay income tax, but they have a legitimate right to vote. I know that perceptions differ on this issue. I remind the House that on two occasions, in 2009 and 2013, the Electoral Commission warned about the practical implications of the policy. For these reasons, and because of the duty of confidentiality in taxation, which would have to be overridden by other legislation, the Government cannot support the noble Baroness’s amendment.

[Baroness Hayman of Ullock (Lab)]

I thank the noble Lord, Lord Rennard, for his support and for his excellent speech. I thank the Minister for his response, although I am sure he will not be surprised to hear that it is not a response that I am particularly happy with or happy to accept. This issue has concerned a lot of people in recent weeks and months, and the Government need to take the position of non-dom status very seriously and look at it again. On that basis, I would like to test the opinion of the House.

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[Lord True (Con)]

My Lords, I shall speak also to Amendment 69D. I believe both amendments are significant to the House and I hope it will reflect on their importance, because I know there are aspects of the Bill that have concerned Members on all sides of the House. The amendment establishes a statutory duty for post-legislative scrutiny of the Bill, something that has been asked for, certainly by the noble Baroness opposite.

We had believed, and I maintain, that it is standard practice to conduct post-legislative scrutiny of Acts following Royal Assent, but we have listened to the strength of interest in guaranteeing that scrutiny takes place which will go across the Bill and we have tabled this amendment requiring the Secretary of State to prepare, publish and lay before Parliament a review of the operation of this legislation, not less than four and not more than five years after it receives Royal Assent—in other words, in good time. We judge that this amendment supports the commonly shared aim of this House, and answers the recommendation made by PACAC, that the impact of the measures be assessed following implementation of the Bill.

The amendment also sets out that a report by the Secretary of State will need to be set before Parliament to allow debate and scrutiny of the operation of the Act, as your Lordships have asked. Amendment 69D is a minor and technical amendment necessary to state the territorial extent of paragraphs 25 and 26 of Schedule 1. I hope the House will understand that I wish to place on record in Hansard that I think this is a significant proposal from the Government which will allow and ensure statutory consideration and examination of the Bill as a whole if it is given Royal Assent. I beg to move.

[Baroness Hayman of Ullock (Lab)]

My Lords, in Committee I tabled Amendment 205 to ask the Government to include in the Bill a statutory commitment to post-legislative scrutiny of the Bill, as recommended by PACAC. I want to say very briefly how much I welcome the amendments that the Minister has just introduced and to thank him very much for listening to my concerns and the concerns of other Members of this House about the lack of pre-legislative consultation or scrutiny. The fact that this has been included in the Bill is extremely welcome.

Amendment 69C agreed.

Elections Bill

Baroness Hayman of Ullock Excerpts

Lords Hansard - Part 2 & Report stage
Wednesday 6th April 2022 Lords Chamber

[Lord Stunell (LD)]

I want to support what the noble Lord, Lord Woolley, has said, and perhaps try to pre-empt the Minister in her reply. In Committee, two reasons were given. One was a mitigation that HMRC in fact informs those who receive new national insurance numbers of their right to vote, which started in September last year. That is excellent and if HMRC can inform them, I am sure they could send the form to go with it. The noble Baroness also said:

“Automatic registration would threaten the accuracy of the register and … enable voting and political donations by those who are ineligible”.—[Official Report, 23/3/22; col. 1058.]


There is a measure of disconnect between the Government’s approach to this issue and their approach to overseas voters. Will the Minister consider whether it would not be sensible to go one more step with HMRC and to link their policies for overseas voters with the domestic voting system?

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the noble Lord, Lord Woolley, for tabling this amendment, to which I have added my name, and for his introduction. I also thank noble Lords for their brief comments.

I want to refer back to Committee. The Minister, the noble Baroness, Lady Scott of Bybrook, said that the amendments proposed on automatic voter registration

“contradict the principle that underpins individual electoral registration: that individuals should have ownership of, and responsibility for, their own registration … Automatic registration would threaten the accuracy of the register and, in doing so, enable voting and political donations by those who are ineligible.”—[Official Report, 23/3/22; col. 1058.]

However, does she agree with me that there are underlying problems with the status quo, such as millions of eligible citizens being incorrectly registered or missing from the registers entirely, major strains on the system during a last-minute registration rush ahead of election days, and resource problems for electoral officials? A founding principle of democracy is political equality. We therefore need to ensure a level playing field on election day. AVR could boost voter registration rates among under-registered groups to create this more level playing field.

It is already current law that every citizen is registered. People often get letters saying that they will be fined £60 if they do not register. Voter registration is not an opt-in process. AVR is a solution that would help administratively to best realise what appears to be the current goal of full, compulsory registration. AVR is also the norm, not the exception, in countries around the world. Many countries that have historically not had AVR because of the absence of a population register are now increasingly introducing either direct enrolment for specific groups or assisted voter enrolment through other public agencies. Where they have been designed well, these innovations have proven to be able to deliver cost savings and boost voter registration for specific groups.

As the noble Lord, Lord Woolley, said, we can give millions of people not on the electoral register a voice. If he chooses to divide the House on this amendment, we will support him.

[Baroness Scott of Bybrook (Con)]

My Lords, I thank the noble Lord, Lord Woolley of Woodford. He, my noble friend Lord True and I have debated this issue a number of times in this House. The intention behind this amendment—to increase the number of people registered to vote—is one that the Government wholeheartedly support. However, the practical difficulties brought about by automatic voter registration are such that the Government cannot support the amendment.

Given the number and range of public bodies listed, as well as the vast amounts of data they hold, the amendment would overwhelm electoral registration officers with data. Data protection legislation rightly prevents the unnecessary sharing of personal data. This amendment would see unparalleled volumes of personal data shared—even that of the majority of people who are already correctly registered. Likewise, it would see people registered without their knowledge or consent.

There would also likely be a large number of security and privacy concerns, such as when it comes to handling the data of minors, those who are escaping domestic violence, those who wish to remain anonymous electors or those who do not want to be on the register—and there are a number of people who do not. I do not know whether it has happened when you have knocked on doors, but people have certainly said to me, “We are not on the register and do not want to be”.

The amendment also takes no account of the coverage, currency or accuracy of the data held by the various public bodies. As they would be listed in primary legislation, these public bodies would be required to share their data, even if it is of no use for electoral registration. Using inaccurate or out-of-date information to register people to vote automatically would seriously undermine the accuracy of the electoral register. That is the crux of the issue: accuracy is just as important as completeness. Having more individuals on a register is not inherently a good thing if those individuals are registered at incorrect or multiple addresses.

When it comes to implementation, a whole host of other issues arise. How would an ERO deal with contradictory evidence from different data sources? If an individual was removed from the register because the ERO determined they were no longer eligible, how would this be picked up by an automated system so that they were not automatically added again? What these questions point to is the fact that there is no true system of automatic voter registration; any trusted system of registration requires the active input of both electors and EROs to determine eligibility. The Government also contend that such active input is important to aid electors’ understanding of the process and their awareness of upcoming electoral events.

Lastly, the Government cannot accept the amendment in the name of the noble Lord, Lord Woolley, because it is deficient. It leaves untouched all the existing legislation for electoral registration. It would require significant further work, and possibly a whole new Bill, to unpick which elements of current law would need to be amended or repealed to accommodate this amendment. For these reasons, and more I have no time to go into—

Elections Bill

Baroness Hayman of Ullock Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 6th April 2022 Lords Chamber

[Lord Stunell (LD)]

My Lords, it has been a very wide-ranging debate, considering it is Report. I wonder if the House would accept me just focusing as far as possible on the business in hand and the amendments that we have in front of us.

First of all, I fully understand and accept the argument that the noble Lord, Lord Woolley, has put forward: that if everything else fails, we must pull this out. That would be my starting and finishing point. My noble friend Lord Rennard and I have tabled Amendment 7, which has found some favour among those who have spoken. We have made it clear that that would be something which fits very well alongside the amendment in the name of the noble Lord, Lord Willetts. It is just an addition to his list, but a very important addition, because people are familiar with the poll card. Those of us who, on election days, very often spend time trying to persuade people to put their coats on, always hear things like, “Oh, I have lost my poll card.” People already assume that the poll card is a significant thing that they need to take with them, so when it comes to acceptance, we understand it to be very much there.

To the noble Baronesses, Lady Verma and Lady Fox, and the noble Lord, Lord Desai—who feel that, somehow, to point to the fact that having voter ID might deter some people from voting is to pick out, talk down to or single out people in a patronising way—I say that we are responding to the evidence of the trials which were conducted by the Government and which are fully certified facts. The facts are that in those places, fewer people finished voting because of the ID system: it is not a huge number fewer but, as the noble Lord, Lord Willetts, pointed out, if we were to read across the data from those experiments, it would be 2 million voters who failed to vote as a result of having such a system in place.

The Government understand that there could be a problem, which is why they are prepared to spend somewhere between £120 million and £180 million getting those 2 million voters to come and vote—if only they would spend that amount on the 8 million not registered, it would be a very good thing. If we acknowledge that there is a problem whereby introducing voter ID reduces participation, let us look at the most straightforward ways of rectifying and lowering that barrier.

I believe that all these amendments are, in their different ways, making the same point. Obviously I want to make the case for Amendment 7 in particular, but I certainly do not exclude the others. It is important to get participation; it is important to consider the issues that have already been raised in the excellent speech by the noble Lord, Lord Willetts, where he prayed in aid the Pickles report. As I have said to the House before, I served with the noble Lord, Lord Pickles, in the department for a couple of years and I never heard him in favour of red tape. I cannot imagine that he seriously thinks that spending £120 million or £180 million on this scheme makes any sense when he has said himself that a utility bill would do.

I say to this House that, from every side, the argument is made that there will be a reduction in participation with an ID scheme. It will be lower if we can manage to make it without photo ID. The pilots showed exactly that: the schemes where no voter ID was needed had fewer voters refused and losing their vote. It is a very straightforward issue; there are bigger issues floating around, which we have heard already, but surely this House must understand and accept the case that, if we want to keep participation up, we need barriers to people going to vote to be at the lowest practical level consistent with a secure system.

[Baroness Hayman of Ullock (Lab)]

My Lords, I will not go over the ground that we have already covered—and there has been a lot—and will just speak to my amendments. Like a number of others in this group, they extend the acceptable forms of voter identification to broaden them out to include non-photographic identity documents. As has been said, the manifesto commitment for voter ID was not for photographic ID, but we respect the fact that the Government had a manifesto commitment to voter ID. My Amendment 6, in particular, would allow a polling card to be an accepted form of identification and would allow for the vouching system currently used in Canada, for example.

The noble Lord, Lord Rennard, mentioned that polling cards were used as the primary method of identification in some of the pilot schemes that were held and that some used a QR code on the card, which was then scanned at the polling station. It was felt that this was more secure but more expensive. However, the evaluation of the pilots also noted that:

“It is also not clear … that additional IT in polling stations … is absolutely necessary to support the use of the poll card as a form of identification.”


We believe on these Benches that the Government need to look at this again.

The Government could learn a lot from Canada on this subject. Its vouching system allows a citizen who has ID and appears on the electoral roll to sign an affidavit to confirm the identity of another voter who does not have identification. That provides a clear paper trail linked to registered voters so that any suspicions of irregularities can be investigated. It also ensures that many citizens without identification, or those who feel uncomfortable providing it, can still cast their vote.

In Canada, it is possible to present identification in up to 50 different formats. We have heard that even the Pickles report, on which the Government are leaning heavily in this part of the Bill, suggests that utility bills could be included as a possibility. The noble Lord, Lord True, has stated that photographic ID is the most “secure and appropriate” model of voter ID. However, the Government have consistently failed, as we have heard today from other noble Lords, to provide any evidence of personation fraud that would require this tightening of security around voters’ identity. As the noble Lord, Lord Woolley, said, the case for fraud has not been made.

In Committee the noble Baroness, Lady Scott of Bybrook, said that the issue is

“about making sure that as many people as possible take up their democratic right to vote”.—[Official Report, 17/3/22; col. 550.]

I could not agree more. However, if that is the Government’s intention, I genuinely do not understand why amendments to expand the acceptable documentation are not being accepted. We debated this long in Committee. We have heard again today that the availability of identification is lower among a certain number of groups and would likely drive down participation. There is clear evidence to support this. As my noble friend Lord Grocott said, this is a new hurdle. Enabling non-photographic identification and the adoption of a vouching system, as in my amendment, would help to mitigate against the serious concerns about the impact of photographic voter identification on turnout.

--- Later in debate ---

[Lord Rennard (LD)]

My Lords, there is a problem with permanent postal votes, and it is a problem for which I am partly responsible. It is the issue of matching the signatures on the applications to vote by post with the certificate that goes with the ballot papers when they are sent off. That arose from an amendment for which I was responsible quite some years ago, when my concern was to reduce the prevalence of postal vote fraud. I thought it was important to have matching signatures on the application to vote by post and the certificate on the ballot paper. But I have some reservations about what will happen if we end permanent postal votes. It may mean you get a fresh signature on the application that can be compared with the certificate that goes with the ballot paper, and the problem at the minute for which I am partly responsible is that, very often, the signature is deemed not to match the signature on the application to vote by post. Sometimes this is because, as people get older, their handwriting changes, and large numbers of postal votes are rejected. There is a problem and a case for people re-registering.

My fear is that if we stop the system of automatic postal votes, trying to get people to renew their postal vote applications will favour the richest parties with the biggest databases, which are more able to contact people by post and ask them to re-register. Mitigating against that will be the new system for applying to vote by post online, and I very much welcome that. But I wonder if the Minister might be able to tell us how you can maintain a system of verifying signatures on an application to vote by post and a certificate that accompanies the ballot paper—and do so online.

I also wonder, for the millions of people who choose to vote by post, when their three-year limit comes to an end, how they will be told that they have to apply again to vote by post. It seems that one letter in the post would not be enough. We need an extensive government communication campaign to tell people that if they wish to apply to vote by post, they need to do so and to reapply by the end of their three-year limit.

[Baroness Hayman of Ullock (Lab)]

I will be very brief, because we need to make progress. I just say that, clearly, we are aware that there have been issues with postal vote fraud, and it is important the Government do everything they can to tackle this. However, I understand the concerns so clearly laid out by my noble friend Lady Quin, who makes some good points about potential unintended consequences of these changes. I would be very interested to hear the Minister’s response and his reassurance on these matters.

[Lord True (Con)]

My Lords, I thank the noble Baroness, Lady Quin, for her kind remarks, and I apologise that she did not get a response. I assure her that I was horrified when I went into my office this morning and found her letter there, but I did not have a forwarding arrangement to my sick bed, I am afraid. I understand that the purpose of the clause that she wants to remove is to seek to strengthen the current arrangements for applying for a postal vote. It is not intended to in any way attack the principle of the postal vote.

The noble Baroness asked about evidence. The Electoral Commission winter tracker for 2021 found that 21% of people who were asked thought that postal voting was unsafe compared to 68% who thought it was safe. There has been evidence of postal voting fraud reported in Tower Hamlets, Slough, Birmingham and Peterborough among other places, but that does not invalidate the case for postal voting itself. What the Government are proposing is to facilitate online application, as the noble Lord, Lord Rennard, said we are doing. Our intention, as with other elements in this Bill, is to improve safeguards against potential abuse.

As the noble Baroness acknowledged, the set of measures implements recommendations in the report by my noble friend Lord Pickles—he has appeared behind me—into electoral fraud that address weaknesses in the current absent voting arrangements. Also, a 2019 report by the Public Administration and Constitutional Affairs Committee gave support to the proposed voting reforms. The proposal is to require an elector to reapply at least every three years, and that will enable the electoral registration officer to regularly assess the application and confirm that they are still an eligible elector. Also, it gives an opportunity, as I said at an earlier stage of the Bill, for someone caught in a cycle of coercion, or who is coerced into having a postal vote to enable their vote to be influenced on an ongoing basis, to break out of that situation. It makes it harder to maintain ongoing coercion.

Keeping details more up to date will reduce wasted costs of postal votes being sent to out-of-date addresses where, again, there may be risk of abuse. Under the Bill, there will also be transitional provisions for existing long-term postal voters, and we intend to phase in the measure for them so that they will have advanced notice to enable them to prepare for the administrative change. EROs will be required to send a reminder to existing postal voters in advance of the date they cease to have a postal vote and provide information to them on how to reapply for it, including online. We believe this is an important measure that could strengthen the integrity of postal voting and not undermine it in any way.

I will of course reflect on the points the noble Lord, Lord Rennard, made in the debate. I was surprised to hear him accepting responsibility; I thought he accepted responsibility only for defeating Conservative candidates at elections. But I will take that admission as well.

Postal voting remains an important part of our electoral system. We do not believe that moving from five to three years, for reasons including those referred to by the noble Lord, Lord Rennard, would invalidate the position, and I hope the reassurance I have given, and the supporting evidence, plus the reports and recommendations I have cited, will enable the noble Baroness to withdraw her amendment.

--- Later in debate ---

[Lord Pickles (Con)]

My Lords, I stand briefly to speak on this and to apologise to my noble friend for missing the entire Committee due to contracting Covid. I have been away at a public inquiry today, but it was great to arrive at the point to hear my noble friend Lord Holmes making these very sensible suggestions. I raised this issue at Second Reading and I am immensely grateful to my noble friend the Minister for accepting these amendments and making these changes, which will bring enormous dignity to the voting process. Again, I congratulate my noble friend, Lord Holmes.

[Baroness Hayman of Ullock (Lab)]

My Lords, we very much welcome and support the amendments put forward by the noble Lord, Lord Holmes, and thank him for so clearly laying out their importance in his introduction. I also congratulate him and my noble friend Lord Blunkett on their continued work and persistence on this matter.

We welcome that these amendments will mean that, for the first time, the Electoral Commission would be tasked by law to create specific guidance to address the needs of blind and partially sighted and other disabled voters at the ballot box. This is long overdue. We strongly urge the Minister to accept these amendments and hope that he will look on them favourably.

However, as other noble Lords have mentioned, the RNIB has raised concerns with some of us, so I would be grateful if the Minister could provide clarification and reassurance on some issues that have not been raised so far. The first question it asks is this: how do the Government anticipate

“such equipment as it is reasonable to provide for the purposes of enabling, or making it easier for, relevant persons to vote”

independently being interpreted? How do they see the interpretation of that phrase? The noble Lord, Lord Kerslake, mentioned that the RNIB is concerned that we must not go backwards. Its concern on this is that “making it easier” to vote is still weaker than the right to vote “without any assistance”, as in the current wording.

It would also be helpful if the Minister could look at how this would be managed going forward, including availability and the cost of the provision of equipment for returning officers and how that would be supported at local government level. It would be helpful if the Minister could confirm the body that he anticipates will fund individual items of equipment provided in polling stations. I am not sure whether the Government currently provide the funding for the tactile template—I am sure other noble Lords know. Again, it would be helpful to know if that is currently the case. Obviously, we need to have certainty in these areas, because the last thing we want to see is a legal challenge if the expected equipment is not provided.

In summary, we welcome these amendments and urge the Minister to accept them. We thank all noble Lords for an important debate and, again, thank the noble Lord, Lord Holmes, for pushing this and bringing it to this stage.

[Lord True (Con)]

My Lords, I thank all noble Lords who have spoken for their general welcome and support for the amendments tabled by my noble friend Lord Holmes. I can tell the House that the Government are very pleased to be able to accept these amendments. I pay tribute to my noble friend and to the noble Lord, Lord Blunkett, for their hard endeavours in helping us to improve accessibility measures in the Bill. It has been quite a pleasant operation for me to return to my old office, which I used to share with my noble friend Lord Holmes, and see a couple of my pictures still hanging on the wall—I had forgotten about those. I thank those who have spoken and am grateful for the kind words said by many, including the noble Lord, Lord Thomas of Gresford. There was one slightly discordant note from the Green group, but a great effort has been put into working together to find a solution that works for all parties.

We have been clear from the outset that the Government’s intention with these changes is to improve the accessibility of elections. My noble friend Lord Holmes and the noble Lord, Lord Blunkett, have understood our policy intentions and introduced welcome changes that complement and improve them. These amendments will introduce specific reference to supporting disabled voters to vote independently and secretly through the provision of assistive equipment by returning officers. While the existing drafting of the duty to support disabled voters would undoubtedly have facilitated the provision of suitable equipment for this purpose, this amendment will underline the importance of equipment to enable or make it easier for voters to vote independently and secretly, where that is practicable.

My noble friend specifically asked me—as, I gather, did the RNIB, which I took great pleasure in meeting in the course of these discussions—to clarify “enable” and “make it easier” in practice. His understanding is precisely right in terms of what the people who drafted this are seeking to achieve. The Government see it as fundamental that we recognise the variations in what people need in order to be able to vote, so that they may access the most appropriate support for each of them. The use of both the terms—“enable” and “make it easier”—reflects the fact that the duty relates to the provision of equipment for those who find it impossible to vote under rule 37 and for those who can do so but find it difficult due to their disability, as per the definition of “relevant person”, which covers both. For those who would otherwise find it impossible to vote independently, appropriate equipment might enable them to do so, but for those who are able but find it difficult to vote due to their disabilities, we also want them to be supported by provision of equipment that would mitigate the difficulties, making it easier. As such, having “make it easier” in the clause does not result in an either/or situation or a dilution. If the amendment said only “enable”, there would be no duty to assist those who find it difficult; if the amendment said only “make it easier”, there would be no duty to assist those who simply find it impossible. The amendment is designed to ensure the widest possible assistance support, greater innovation and accessibility.

As my noble friend has said—this was something on which he was understandably insistent, and I hope it has pleased all those involved—his amendments will put on a strong statutory footing the role that the Electoral Commission will play in providing guidance about meeting this duty, which returning officers will have to have regard to. While these are things that we are confident both the commission and returning officers would have done as a matter of good practice, we welcome that these will be put on a strong and permanent statutory basis. That is why the Government have acceded to these proposals.

As I said, I recently met the RNIB and heard its concerns—which were echoed by the noble Baroness, Lady Lister—including around the risk that guidance might not be as strong as statute and might represent the end of a conversation on accessibility that may not have disabled voters at its centre. I can say only that that conversation will continue; that is why the amendments will in fact require the Electoral Commission to consult with relevant organisations, such as the RNIB and other disability charities, in the production of the guidance and to report on the steps that returning officers have taken to assist disabled voters. This will promote accountability in the policy.

I will respond to the concerns that, without a minimum standard, there will be uncertainty about how individual returning officers decide what they deem to be reasonable. First, in requiring provision for what is reasonable, the clause imposes an objective standard rather than a subjective one. Secondly, the role and purpose of the Electoral Commission guidance will be to set out a clear framework, and therefore to promote consistency. Returning officers will have to have regard to this but the guidance will, of course, be more flexible than legislation—the point made by the noble Lord, Lord Thomas of Gresford—with a much more responsive capability for adding new equipment that has been developed and identified over time, without having to bring forward primary or secondary legislation each time.

The amendments make provision for a suite of duties that I hope will reassure those with concerns. I am confident that the changes represent a good move away from the limited, prescriptive approach towards more flexibility and innovation. We will look to the Electoral Commission to do its duty in consulting with organisations representing disabled voters, such as the RNIB, in producing its guidance.

I cannot specifically answer the noble Baroness’s point on funding, which, in a sense, is related to what will come out of the ongoing discussions, but I will communicate to her what I am able to on that.

I believe that this has been good work by your Lordships’ House, working in a consensual manner for a common purpose. I hope this will lead us towards a more accessible future for our elections. Again, I thank my noble friend Lord Holmes for tabling these amendments, and the noble Lord, Lord Blunkett. The Government support them and urge the House to do so as well.

--- Later in debate ---

[Lord Stunell (LD)]

My Lords, the case is there. We rehearsed it extensively in Committee. At the time, we heard some very interesting arguments put forward by the Minister. I hope that he has had chance to revise his views and that we shall hear shortly that he will accept the amendment. I do not want to prolong this, so I shall leave it there.

[Baroness Hayman of Ullock (Lab)]

He has had a Covid revelation.

[Lord True (Con)]

No. As the House knows, nothing distresses me more in life than disappointing my erstwhile colleagues on the Liberal Democrat Benches, but I am afraid that I must. This is a simple disagreement. The Government’s view is that the first past the post system is simple, clear and effective. Reference has been made to our manifesto. It said:

“We will continue to support the first past the post system of voting … both locally and nationally.”


Clause 12 supports the first past the post system for local elections—for elections of police and crime commissioners in England and Wales, and for the Mayor of London, combined authority and local authority mayors. It moves these to the simple majority voting system. In 1998, the referendum question in London was simply:

“Are you in favour of the Government’s proposals for a Greater London Authority, made up of an elected mayor and a separately elected assembly?”


There was no great ringing endorsement of proportional representation.

We had a thorough and invigorating debate in Committee on this matter. I did not agree with all of it and I suspect some of your Lordships did not agree with me. We want to move on. We have a difference of opinion. It is clear that using the first past the post voting system for these elections will displease some Members of your Lordships’ House but we are committed to supporting it. I regret to remind people that, in 2011, the public expressed a clear preference when two-thirds voted in favour of retaining first past the post. I am afraid that I will again disappoint the Green group, but that was a fact. There was support for PR in only 10 of 440 voting areas or, to put it the other way, 430 of 440 voting areas supported first past the post. As such, I do not believe there is any merit in holding—