Local Government: Ethical Procurement

John Penrose Excerpts

Tuesday 15th March 2016 Westminster Hall

[Richard Burden]

I have no idea about that, but if the hon. Lady thinks this is not a very significant public procurement note that merits parliamentary scrutiny, I wonder why the Minister for the Cabinet Office took the trouble of announcing it in a press conference with the Prime Minister of Israel on 17 February.

On 16 December, I asked the Secretary of State for International Development whether she agreed with the Foreign Office that it was perfectly reasonable for both public and private institutions to pay due regard to that Foreign Office advice when they make their own investment and procurement decisions. Her answer was unequivocal. She said:

“They should do that; that is good Foreign Office advice.”—[Official Report, 16 December 2015; Vol. 603, c. 1534.]

So my first question to the Minister is this: were civil servants consulted at all before the press release was issued at the Conservative party conference? I am happy to give way to him if he has a reply.

[The Parliamentary Secretary, Cabinet Office (John Penrose)]

I was planning to wait until the end and collect what I am sure will be a whole series of questions. Perhaps that will allow me to wrap them all up together in a series of responses.

[Richard Burden]

I am very happy for that to happen. I give the Minister notice that there will be six questions on which I am seeking answers.

Did Ministers really take the view that public institutions should not have the same rights and concerns as private institutions when it comes to good business practice and corporate social responsibility? What was it that Ministers were trying to outlaw? The public procurement note published on 17 February appears to suggest much less than the Conservative press release of October; it appears to say that institutions should not impose a blanket ban on contracts with companies on the basis of the nationality of the companies concerned, in line with existing EU and World Trade Organisation rules. We know that the WTO forbids the use of quantitative restrictions, such as a ban on imports—phrased in terms of products originating in the “territory” of another WTO member.

On 9 March, in answer to a question from my hon. Friend the Member for Hammersmith (Andy Slaughter) about whether the occupied territories could be considered part of Israel, the Under-Secretary of State for Foreign and Commonwealth Affairs, the hon. Member for Bournemouth East (Mr Ellwood), was absolutely clear:

“The World Trade Organisation does not define the territory of its members. The UK does not recognise Israeli sovereignty over the territories occupied by Israel in 1967. We therefore do not consider the Occupied Palestinian Territories to be part of Israel.”

So my second question to the Minister is this: is there anything in this public procurement notice or that is intended by the Government that in any way changes that?

European Union rules are also mentioned in the public procurement notice. They allow public institutions, on a case-by-case basis, to exclude companies from tenders on the basis of their behaviour, specifically where grave misconduct may be involved. What could that mean? Let us turn again to the Government’s own documents—to their 2013 national action plan on implementing the UN guiding principles on human rights and business. An extract from that states that the UK Government

“are committed to ensuring that in UK Government procurement human rights related matters are reflected appropriately when purchasing goods, works and services. Under the public procurement rules public bodies may exclude tenderers from bidding for a contract opportunity in certain circumstances, including where there is information showing grave misconduct by a company in the course of its business or profession. Such misconduct might arise in cases where there are breaches of human rights.”

My third question to the Minister is therefore this: does the February 2016 public procurement note in any way change or add to that advice?

My fourth question is about whether the Minister considers that a breach of the fourth Geneva convention is a breach of human rights. If he does, would the public procurement note restrict a public institution from resolving not to deal with a company that was involved in aiding and abetting breaches of that convention?

If the public procurement note is prompting these and more questions, so, too, are the changes that the Cabinet Office says it is going to introduce in relation to investment decisions of local government pension funds. So my fifth question is this: pension fund trustees are already covered by a fiduciary duty, but will the changes being introduced in any way fetter the judgments that they make in line with that fiduciary duty in relation to, say, not investing in fossil fuels, tobacco or the arms trade?

My sixth question logically follows from that: in order to be clear on these points, will the Minister outline what plans he has for parliamentary scrutiny of these changes to pension fund guidance? Specifically, will he commit to consulting on any draft guidance he intends to issue in respect of local government pension scheme investments before it is published and before Parliament, through whatever procedure, is asked to make any kind of decision on these changes?

--- Later in debate ---

[The Parliamentary Secretary, Cabinet Office (John Penrose)]

It is always good to have your sure hand guiding our proceedings, Mr Streeter. I start by joining the chorus of congratulations to the hon. Member for Birmingham, Northfield (Richard Burden) on securing this debate. He is right that this is an important issue. He is also right to say what it is about and what it is not about, and to acknowledge that there are sincerely held views on both sides of the broader issue. He is right to put that point up front and pay it due respect. I echo those points.

As the hon. Gentleman has asked some distinct questions, and other questions have embroidered around them, I will try to address those questions as I go through my speech. I am sure he will pick me up if I do not. I will try to make sure that he has a minute or so at the end to sum up.

[Sir Alan Duncan (Rutland and Melton) (Con)]

Will the Minister give way?

[John Penrose]

Briefly, but I will then have to make progress.

[Sir Alan Duncan]

At the beginning of his comments, will the Minister clarify an important point of fact, which is the kernel of this issue? Will the Government’s proposed procurement rules permit a local authority to adopt a policy against investment in, or purchase from, Israeli settlements in the Palestinian west bank?

[John Penrose]

The answer is that it depends; I am sorry to be a little indistinct. I will come on to the details. I hope to give my right hon. Friend a proper answer, rather than just a straightforward yes or no, because there are situations where councils will be able to and situations where they will not.

The overarching principles behind public procurement are twofold. First, public sector procurers are required to seek the very best value for money for the taxpayer. Secondly, public procurement must be delivered through fair and open competition. Public sector procurers have to follow detailed procedural rules laid down in the Public Contracts Regulations 2015, which implement the Government’s domestic procurement policy and wider EU and international rules, including the EU procurement directives and the WTO Government procurement agreement; a number of right hon. and hon. Members have referred to the GPA in this debate.

Under those obligations, our contracting authorities are required to treat all suppliers equally, regardless of their geographic origin. The regulations have recently been updated and modernised, but the basic principles are long-standing and have been in place for many decades. Any breach of the rules puts public authorities and the Government themselves at risk of breaching all sorts of laws. Serious remedies are available to aggrieved suppliers through the courts for breaches of those rules, including damages, fines and what lawyers call “ineffectiveness”, which basically means contract cancellation.

A number of colleagues have mentioned that ethical procurement has a much wider meaning than we have focused on here. We could talk about it in relation to arms firms, defence industry investment or investment in the tobacco industry. However, we have focused, perhaps understandably, on a specific example. The point is that “ethical procurement” is not a defined term—it means different things. There are many examples of how procurers take ethical considerations into account. For example, the rules allow authorities to exclude suppliers that have breached certain international social, environmental or labour laws. In addition, we already ensure that prime contractors behave ethically towards their subcontractors—for example, by requiring 30-day payment terms. That applies through supply chains, as the hon. Member for Foyle (Mark Durkan) said.

The Public Services (Social Value) Act 2012, which came into effect in 2013, placed a requirement on commissioners to consider the economic, environmental and social benefits of their approaches to procurement before the process starts.

[Sir Alan Duncan]

In that case, is there anything in the Minister’s list that includes the illegal origin of the products to be bought?

[John Penrose]

The point is that although we are clear that the settlements themselves are absolutely illegal—I am happy to clarify the Government’s foreign policy—that does not necessarily mean that activities undertaken by firms that happen to be based there are themselves automatically illegal. A separate, case-by-case decision must be made about whether each potential supplier satisfies the rules. I will give more detail about that as I go, if I can.

We have flexibilities in our procurement rules. Some things are explicitly ruled out—

[Mr Betts]

Will the Minister give way?

[John Penrose]

I am running out of time. I will give way very briefly, and then I will have to make progress.

[Mr Betts]

We are back to the point about how to distinguish between one activity of an organisation and another when deciding whether to have a relationship with it. To go back to banks, for example, it was rightly decided not to have any dealings with Barclays back in the 1980s because of its particular link with South Africa. One could not distinguish between the money it lent to South African firms and the money that it lent to other firms. How then does the Minister distinguish between the activities of financial organisations now and their treatment of the settlements?

[John Penrose]

I am explaining how the law is, rather than how the hon. Gentleman might like it to be. As I said, we are clear that the settlements themselves are illegal, but a firm based or trading within one of those settlements may be operating in an entirely whiter-than-white, above-board fashion in how it treats its suppliers, staff and customers. Therefore, I suggest, one cannot assume that absolutely everything done in a particular place is implicitly wrong.

There are flexibilities in our procurement rules. Some things are explicitly ruled out. Discrimination is absolutely ruled out as a matter of law and policy. The problem with boycotts in public procurement is that they may often stray over the line from acceptable ethical procurement within the rules that I have described to become an act of discrimination. The principles of non-discrimination and equal treatment underpin the UK’s whole approach to public procurement policy—we have heard examples of that from other speeches already—and are mandatory under UK, EU and World Trade Organisation procurement rules.

Moreover, public policy that includes decisions on whether to impose Government sanctions on other countries is a matter reserved for central Government. We are devolving a great deal down to local government and other Parliaments within the UK, but foreign policy, particularly sanctions against other countries, is a matter still reserved for central Government. It is therefore the Government’s position that discriminating against any supplier based on geographic location is unacceptable unless formal, legal sanctions, embargoes or restrictions have been put in place by the UK Government here.

Despite those long-standing rules, we have been concerned to learn that some authorities have decided to impose local-level procurement boycotts, which is why on 17 February, as we have heard, the Government published guidance to remind authorities of their obligations in that respect. I hasten to add that it is not an Israel-specific policy, nor is it focused on the Israeli settlements, in line with the initial remarks of the hon. Member for Birmingham, Northfield. It is general guidance about procurement principles, so it does not address directly or in detail any questions about procuring from Israel or the illegal settlements. The Minister for the Cabinet Office highlighted the guidance when visiting some technology companies during his trip to Israel to reassure them that the UK Government marketplace is open to overseas bidders, despite what they might have read elsewhere.

Of course, the WTO Government procurement agreement has its limitations. It applies only to countries that have signed up to it. Israel is a party to it, so it clearly applies to Israeli suppliers, whereas the Government do not recognise the illegal settlements as part of Israel.

[Imran Hussain]

I should have declared an interest earlier: I recently visited the west bank with colleagues and Medical Aid for Palestine. I am grateful to the Minister for his somewhat grey explanation of certain areas, but can he help me with this point, with which I am sure other hon. Members will agree? He has accepted that the settlements are illegal. On what basis, legal or otherwise, is he asserting that the businesses operating within those illegal settlements are operating legally? Can he explain that to me, please?

[John Penrose]

I believe I already have. Although it is difficult, it is entirely possible for a settlement to be illegal while the businesses operating within it are entirely within the law, treating their staff, suppliers and customers properly and so on. It is possible for both those things to happen at once.

[Andy Slaughter]

Will the Minister give way?

[John Penrose]

I must make progress. In spite of those flexibilities, local authorities must still be careful not to make discriminatory policies even where they believe that the GPA does not apply. The rules also provide mechanisms to protect authorities from dealing with risky suppliers.

To answer the question asked by my right hon. Friend the Member for Rutland and Melton (Sir Alan Duncan), I should say that authorities can take into account the legal and economic risks of dealing with particular suppliers. The rules include various grounds on which individual suppliers can be excluded from bidding, such as where the company is guilty of criminal offences, corruption or grave professional misconduct or in breach of environmental, social or labour laws and so forth. This is a key point: the rules must be applied on a case-by-case basis, company by company, rather than on the basis of an entire geographical area, as a blanket ban or boycott would inevitably do—that would make them discriminatory.

Local authorities have significant flexibilities and can exercise pretty wide discretion within the rules—I hope that I am answering my right hon. Friend’s question—but the rules themselves are clearly necessary to protect them by ensuring that they do not take actions that could land them and us in court. Nobody wants to waste public money on costly court cases.

I am running out of time, so I will stop to allow the hon. Member for Birmingham, Northfield time to respond, but I emphasise that on foreign policy, we have clearly not changed our approach to the Palestinian occupied territories or to settlements around the pre-1967 boundaries of Israel. With that, although there are many other things that I would have liked the opportunity to address, I want to leave the hon. Gentleman a chance to respond. I will sit down and leave the floor to him.

[Richard Burden]

I always thought that public procurement notes were meant to clarify procurement rules, but the Minister has just demonstrated the art of muddying them through his explanation of this procurement note. He said that the note is not Israel-specific; it just happens that the Minister for the Cabinet Office announced it in a Conservative party conference press release that was almost entirely devoted to the situation in the middle east, and then announced the public procurement note itself in Israel.

If settlements are illegal, I fail to see how trade with those settlements and co-operation with businesses involved in aiding and abetting illegality is not itself illegal. That is what the Foreign Office advice to business is about. I know that the Minister has had a problem today; for some time now, we have been trying to work out which Minister would reply to this debate. I get the impression that this is a parcel that has been passed from pillar to post.

[John Penrose]

We are a flexible team.

[Richard Burden]

Eminently flexible—with flexible rules as well, by the sound of it. My six questions have not been answered to my satisfaction, nor have the questions asked by other hon. Members. I ask the Minister to answer in writing.

Motion lapsed (Standing Order No. 10(6)).