Advanced Research and Invention Agency Bill

Baroness Noakes Excerpts

Committee stage
Wednesday 17th November 2021 Grand Committee

Moved by

[Baroness Noakes]

2: Schedule 1, page 6, line 18, leave out paragraph (c)

[Baroness Noakes (Con)]

My Lords, in moving Amendment 2 I will speak also to Amendments 6, 8 and 10 in my name. These are all probing amendments that concern the governance of ARIA and its board, so I am dealing with much more mundane matters than we covered in the first group. There are a lot of different aspects in this group so I apologise in advance for taking a little time in my opening remarks.

Amendment 2 is about the size of the ARIA board. It deletes paragraph 2(2)(c), which allows between two and five executive members to be appointed to the board in addition to the chief executive and the chief financial officer. As with the governance arrangements relating to commercial boards, paragraph 2(4) requires there to be a majority of non-executive members. Therefore, the minimum size of the ARIA board will be twice the number of the executive members, plus one. If there are two additional executive members, the total number of executives would be four, the minimum number of non-executive members would be five, with a minimum board size of nine. If, however, the full complement of five additional executive members was appointed, the board would comprise seven executive members, with a minimum of eight non-executive members, making 15 in total. There is, however, no limit to the number of non-executive members and hence no upper limit on the size of the board.

I believe that this design is flawed and could result in an unwieldy and ineffective board. Some years ago, in the wake of the financial crisis, Sir David Walker produced a review of corporate governance in banks and other financial services entities. His report included an annexe, which dealt with optimum board and committee size, based on evidence from a number of sources. Sir David said that the optimum board size was between eight and 12, and that beyond 12 a board was prone to

“passive free riding, dislocation and ‘groupthink’”;

in particular, the likelihood of groupthink increased “exponentially” above 12.

I will quote some of the rationale for this:

“This importance of size is due to the cognitive limit to the number of individuals with whom any one person can maintain stable relationships, this limit is a direct function of relative neocortex size, and this in turn limits group size.”


My own direct experience of a number of boards in different sectors over the years is pretty much in line with the Walker report.

At Second Reading I emphasised the need to avoid groupthink in ARIA, and I hope the Government will look again at their design for ARIA’s board. Many listed companies have only the chief executive and the CFO as board members, which helps limit overall size and keep the board effective. Is it really necessary to have a minimum of any extra executive members? Why not just set an upper limit on the size of the board—at, say, 12—and let the rule on the majority of non-executives drive the remaining appointments?

Amendment 6 is designed to ensure that the culture of ARIA is kept away from the Civil Service and government, about which I also spoke at Second Reading. It states that non-executives cannot be either Ministers of the Crown or employed by a government department and paid out of public expenditure. There is a precedent for a prohibition on Ministers and civil servants in the Bank of England legislation which governs appointments to the Court of the Bank of England. It is now in the Bank of England Act 1998, and I have largely copied that drafting, although I have added a prohibition regarding positions held within the five years preceding the appointment. It is clearly important that the central bank is formally independent of government. In the case of ARIA, formal independence is not the issue; rather, it is very important to be independent of the prevailing mindset in Whitehall. I hope that the Minister will agree with me on that.

--- Later in debate ---

[Lord Callanan (Con)]

I will write to the noble Lord with the legal details he requires.

[Baroness Noakes (Con)]

My Lords, I can probably help the noble Lord, Lord Fox. In the case of public corporations created by statute, it is quite common that they are the members. It is not usually drafted as if the board is a separate legal entity.

[Lord Fox (LD)]

The non-execs and execs, or just the non-execs?

[Baroness Noakes (Con)]

No, the members. The members are executive and non-executive, as defined. They comprise the body. That is quite normal in public sector formulations. While I referred to the board when I introduced my amendments, that is not set out in legislation because they are the members. In common parlance, I was talking about the creation of the board of the agency.

I thank noble Lords for their support and their contributions to this short debate, and I welcome the noble Lord, Lord Morse, to our deliberations. I heard what the Minister had to say. He has decided that there will be four executives and therefore a minimum board size of nine, but I do not think he really engaged with the substance of my arguments on why the potential for 15—or, indeed, more because the Bill does not limit the size of the board to 15—which was a little disappointing.

When the Minister dealt with whether or not there could be payments for pensions or gratuities to non-executives, he said that the Government do not intend to do that but are going to put it in anyway. Actually, this is really old drafting, which I can point to in many old statutes, which have not been used for many years, for very good reason, and there really is no need to carry on drafting in this way.

I could go on but I am not going to answer the individual points made by the Minister in response to my speech. I hope he will go away and read more carefully the content of the debate because I think there are some issues that he did not deal with in his reply, and I will certainly read his remarks more carefully when I see them in Hansard. I anticipate returning to some of these issues on Report. In the meantime, I beg leave to withdraw my amendment.

Amendment 2 withdrawn.

--- Later in debate ---

[Baroness Noakes (Con)]

My Lords, I will comment on Amendment 4 in the name of the noble Baroness, Lady Randerson. We must not lose sight of the fact that the board is there to contribute to the total purpose or mission of the organisation, and we need to be very clear, when looking at getting those with some relationship to the devolved Administrations, precisely why they are there. I question whether there is a devolved dimension to, for example, the focus of ARIA or determinations about particular projects. These should transcend any issues that arise at the national level.

In addition, the amendment says that there should be

“a representative of the Welsh Government”.

I believe very strongly that boards should not have representatives of anybody on them. Board members should be selected because of their contribution to the totality. Indeed, if we look at examples of boards that do have individuals nominated either by or with the consent of the devolved Administrations, those people are never ever drafted as representatives. They are usually drafted as members who are appointed in a particular way. It is really important that we do not lose sight of the fact that we are trying to create a unitary board dedicated to the mission of the organisation. I query whether there needs to be input from the devolved nations to that process because of the nature of ARIA, but even if there were, I am absolutely clear that they should not be “representatives”.

Furthermore, if we look at the size of the board, which I addressed in the previous group of amendments, if there are four executives there are likely to be five non-executives, and that includes the chairman. So there would be a chairman, four executives and three people appointed who are in some ways related to the devolved Administrations—although none, under this formulation, representing England—but none, or perhaps one, appointed for the general skills and abilities they bring to the party. I hope that noble Lords will think carefully about whether it is appropriate in this instance to act in accordance with the way the noble Baroness’s amendment is drafted.

[Lord Ravensdale (CB)]

My Lords, as co-chair of the Midlands Engine APPG, I am very supportive of the levelling-up agenda and have a lot of sympathy with the amendments in the name of the noble Baroness, Lady Chapman. My only concern is the additional bureaucracy inherent in looking at the regional distribution of investment.

Building on the point made by the noble Viscount, Lord Stansgate, another lesson learned from DARPA was that the headquarters of DARPA was located away from many of the main research centres of the United States, which avoided the inevitable capture of research funding by institutions in a particular area and really encouraged the take-up of ideas from all parts of the country. I thank the Minister for writing to me on this but I hope that the Government will look further at how the location of the ARIA headquarters fits into the levelling-up agenda.

--- Later in debate ---

[Baroness Noakes (Con)]

My Lords, I can probably help the noble Viscount. It is a shame that the noble Lord, Lord Morse, has not stayed with us. I think what I am about to say was referred to in the opening remarks of the noble Baroness, Lady Chapman.

Because the Comptroller and Auditor-General is specified as the person to examine, certify and report on the statement of accounts, the National Audit Act 1983 gives the Comptroller and Auditor-General the power to do value-for-money audits in the way that the National Audit Office does for all government and public departments. The power therefore already exists and there is no need for Amendment 11, as I think the noble Baroness herself conceded; it is simply not an issue. A power for the Comptroller and Auditor-General to carry out a value-for-money audit will exist and the audit will be carried out in the normal way that the National Audit Office undertakes its value-for-money audits.

[Lord Fox (LD)]

Again, this is an interesting group of amendments, and the noble Baroness, Lady Chapman, and the noble Lord, Lord Ravensdale, should be congratulated on tabling them. Bearing in mind what the noble Baroness, Lady Noakes, has just said, I was already planning to focus on Amendments 12, 13 and 14 and not to talk to Amendment 11, and that is probably a good idea.

However, I say to the noble Lord, Lord Browne, that I do not think his work was wasted because one way or another he has managed to uncover the fact that the Government have decided deliberately to exclude this requirement that they expect every other central government purchase to meet. The Minister has a serious question to answer as to why that is being left out.

Amendments 12, 13 and 14 cover an important issue. I do not think we need to underline, after the week or 10 days that we have just had, why it is in the interests of ARIA itself for it to be seen that there is no conflict and there are no issues around where the money is being spent. In a sense, these amendments or versions of them, will help ARIA in its own housekeeping. Of course, the Electoral Commission will register donors. As the noble Baroness, Lady Chapman says, we then need a list of all the companies and then to go to Companies House to find out who is registered as being in control of those companies. Making it easier also makes it clearer to the ARIA administration what it is dealing with.

I go back to the statutory instrument that we are not debating today, which talks about conflict of interest—so it is clearly relevant. It says that a member of ARIA must disclose any “relevant interests” promptly on appointment. The trouble with that is that I do not think that many people can consider their donations to be a relevant interest, but they are relevant with respect to an organisation of this nature. So something clearer needs to be spelled out, either in the statutory instrument or in the primary legislation. I would prefer it to be in the primary legislation.

When that is done, in listing the companies that are being supported, I suspect that the Minister is going to stand up, in the same way as he is going to stand up when we debate the freedom of information stuff, and say, “This work needs to be kept under wraps and kept secret”. There is a balance to run on this, and if there is an issue we need to find a third-party agency to scrutinise it on behalf of Parliament. But to hide specifically through national security or proprietorial security is wrong, because in that darkness—even if abuses are not happening—the perception of abuse will happen, which will harm ARIA before it even starts.

--- Later in debate ---

Moved by

[Baroness Noakes]

17: Schedule 1, page 10, line 23, leave out paragraph (a)

[Baroness Noakes (Con)]

My Lords, I beg to move Amendment 17 and shall speak also to Amendment 20 in this group. These are probing amendments designed to explore the extent of the powers given to ARIA by virtue of paragraph 17 of Schedule 1. Sub-paragraph (1) of paragraph 17 says that ARIA can pretty well do what it likes, and this is expanded by some particular powers in sub-paragraph (2). The two I have focused on in my amendment are sub-paragraph (2)(a), which says that ARIA may borrow money, and sub-paragraph (2)(d), which allows ARIA to form and participate in partnerships and joint ventures.

My concern is that these powers will be used to create liabilities for the state and hence, ultimately, for taxpayers, beyond the resources that we were led to believe would be devoted to ARIA. As I remarked on Second Reading, there is a world of difference between placing a bet of £500 million or £800 million and underwriting someone else’s credit card. In the former case, there is the hope of winning very much more than the initial £500 million or £800 million, although, obviously, the possibility of losing the lot. In the latter case, there is the possibility of an unlimited amount of additional money being needed if the funds raised by the borrower failed to produce any return.

ARIA will be a public sector body in every sense of the term. It gets its money from the Treasury, it is subject to public sector audit and accountability arrangements and its key personnel are appointed by and paid in accordance with the directions of the Secretary of State. It is always accepted that the state stands behind public sector bodies. That has been the case for as long as I can remember. If they fail, their liabilities are underwritten by the state. That is why there is usually a raft of controls placed on those bodies, including restrictions on the power to borrow money. The Treasury has an obvious interest in ensuring that public sector bodies do not create uncontrolled demands on public finances and, as a public sector body, ARIA’s borrowing will, I believe, automatically score as public sector borrowing. Will the Treasury really allow that to happen without controls?

I have focused on the borrowing power in sub-paragraph (2)(a), but my comments apply also to the ability to participate in partnerships and joint ventures, which are often structured in a way that means liabilities can be left with one of the parties to the venture. Private-sector counterparties would be queueing up to enter into arrangements which could possibly leave the state with the requirement to pick up the bill for failure. Similar dangers also apply in relation to companies which are allowed to be formed under sub-paragraph (2)(e), but I failed to table its deletion for today’s debate. I am not against partnerships, companies or joint ventures; they all have a part to play in working with private sector organisations. What I am against is the ability of ARIA to enter into arrangements that impose potential financial burdens on government finances without any controls or consents being required.

As it stands, Schedule 1 might allow some ex post interventions once the Secretary of State became aware of things that cause financial concerns beyond the initial amounts of money committed to ARIA—£500 million by the end of this Parliament—but the main tool he has is an extremely blunt instrument because it is related to replacing the members of the board. Even here he is restricted, as under paragraph 6(3) he can sack non-executive members of the board on any grounds he “considers appropriate” but, to get rid of an executive member, his power under paragraph 5(2) is restricted to grounds of “national security”. The real villains are more likely to be the executives than the non-executives, but the Secretary of State’s powers to deal with those individuals are, perversely, concentrated on the non-executives.

The notes given to noble Lords on this side of the Committee for today’s groupings said that my amendments would limit ARIA’s novel funding mechanisms. That gives an insight into what these powers are about. They are positively designed to allow ARIA to go beyond the resource envelope that has been announced for it. Calling funding “novel” might sound progressive, innovative and all those good things that ARIA is said to be focused on, but to those of us who have been around financing for rather a long time, it just sounds like another way of doing things to get around rules and restrictions. That would be okay if there were not ultimately recourse to public funds, but the Bill does not require borrowing to be on a non-recourse basis. It leaves public finances at risk to an unspecified degree.

I look forward to hearing from my noble friend how she thinks this very real risk will be managed in practice and how the Government have concluded that ARIA’s powers are compatible with sound public finances. I beg to move.

[Baroness Chapman of Darlington (Lab)]

My Lords, I support the noble Baroness, Lady Noakes. I had not had the pleasure of hearing from her at such length as we have today, and I am very impressed by her contributions. The issue of borrowing money is a concern. There is clearly the potential for financial risk but also significant reputational risk when a level of borrowing might emerge that may seem unduly risky. I am concerned about that and interested in what the Minister will say to prevent that concern doing any damage to ARIA.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

My Lords, these amendments relate to ARIA’s supplementary funding powers—its ability to borrow and form and participate in partnerships and joint ventures. I will begin by clarifying some of the controls and rules that would govern ARIA exercising these powers and I hope I can find enough reassurance for my noble friend Lady Noakes here. She always starts a debate with a great deal of knowledge, so we always pay attention.

ARIA could only ever make use of a financial mechanism, such as borrowing, for the purpose of exercising its functions—to conduct scientific research and exploit and advance scientific knowledge. Any such activity would also be subject to conditions attached to grant funding provided by the Secretary of State under Clause 4. Any borrowing would also meet the stringent requirements and controls of HMT’s Managing Public Money, which sets conditions to ensure value for money. It would be agreed with Her Majesty’s Treasury in advance. This is part of a suite of non-legislative controls that exist on borrowing.

I also highlight that UKRI has the power to borrow. Mirroring that approach, it is reasonable for ARIA to have this full financial toolkit, as it may be appropriate for it to use in certain future circumstances. For example, one possible scenario in which borrowing may be useful would be if ARIA were to own a controlling stake in a subsidiary, which while partially government owned, aims to act with autonomy. Such an entity may want to borrow if purchasing a large capital asset, in order to resolve cash flow issues if an upfront payment were required.

On ARIA’s power to participate in partnerships and joint ventures, using this power ARIA could take an equity stake in a company forming around a new technology. This could provide a clear benefit in cases where the company is creating assets of strategic importance to the UK. On this point, I reassure the noble Lord, Lord Fox, that the National Security and Investment Act does indeed apply to all ARIA’s activities.

In another scenario, ARIA’s taking an equity stake in a company may help to crowd-in private sector interest, bringing in greater funding totals, lowering financial exposure and creating a clear pathway for the commercialisation of a technology. It is fundamental to the design of ARIA that it is able to innovate with different methods of funding high-risk research.

As I have made clear, appropriate checks are in place to ensure the Government can agree the details of any future borrowing activity, and the ability to engage in joint ventures will be an integral feature of ARIA’s full financial toolkit. I therefore see no reason the mechanisms available to ARIA should be limited through the Bill and I ask the noble Baroness to withdraw her amendment.

[Baroness Noakes (Con)]

My Lords, I thank all noble Lords who have taken part in the debate. I particularly thank the noble Baroness, Lady Chapman, not only for her kind words but for pointing out the reputational risk in addition to the financial risk. As an accountant, I tend to think of financial risk before anything else.

I should say to the noble Lord, Lord Fox, that I did not say that I was against joint ventures and partnerships; I said that they were fine and that it was just a question of the degree to which, through those mechanisms, additional liabilities could be taken on that would then end up on the public sector balance sheet. Often joint ventures and partnerships are structured in such a way that, through those vehicles, access to additional borrowing of various kinds, or quasi-borrowing, can then end up coming back. Those are the reasons why I was probing in relation to joint ventures and partnerships. I accept that in many types of arrangement they are a natural way to do business in this area.

I thank my noble friend the Minister for what she said. I think she said that conditions could be attached to grant funding—indeed, there is a sentence on that in the Explanatory Notes for whatever clause relates to grant funding, which I cannot remember at the moment—but no other details were provided on how that works. Is that prospective? Is it done every time that money is paid over? I do not understand how it will work. Once ARIA has got hold of the money and does not need any more grant funding at that point in time, what powers do the Government have over its further borrowing after that?

My noble friend also talked about managing public money. I do not have an encyclopaedic knowledge of that, but from memory I could not see how that related to the issue I was really raising—whether you can borrow money without Treasury consent, which is what is implied by the statute, with it ending up on the public balance sheet.

[Baroness Bloomfield of Hinton Waldrist (Con)]

Perhaps I could come back on that point. Any borrowing will be agreed with HMT in advance and will comply with the terms of managing public money, which requires that public sector organisations may borrow from the private sector only if the transaction delivers better value for money for the Exchequer as a whole.

[Baroness Noakes (Con)]

I think I understand what my noble friend is saying. It is then about seeing how managing public money bites on ARIA, which has an unconstrained power to borrow. I would like to think about that further, and perhaps my noble friend could explain alongside that how conditions attaching to grant funding work in practice. Who says what to whom, and when? Perhaps then I can understand the mechanics of that. I am sure that, if the Government have thought this through, she will be able to give me a comprehensive answer on how we are not letting ARIA go out into the world and bust the public sector borrowing requirement—even more than it is already bust. I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

Is that not the point?

[Baroness Noakes (Con)]

No.

--- Later in debate ---

[Baroness Noakes (Con)]

Can I ask my noble friend the Minister to ensure that when she comes back she explains the relationship between paragraph 17 in Schedule 1 and Clause 2, which sets up ARIA’s functions but seems to go beyond functions into things it can do? Paragraph 17 then comes and says again the things it can do. I find that confusing and that confusion may be shared by other noble Lords.

[Lord Lansley (Con)]

I am grateful to my noble friend. We are going to return to some of these issues and I beg leave to withdraw the amendment.