Procurement Bill [HL]

Lord Aberdare Excerpts

Committee stage
Wednesday 6th July 2022 Grand Committee

[Baroness Brinton (LD) [V]]

My Lords, I declare my interests as a vice-president of the LGA and as a disabled person. I am speaking to Amendment 141, which would ensure that contracting authorities must follow accessibility principles as defined under the UN Convention on the Rights of Persons with Disabilities, or UNCRPD.

The Public Contract Regulations 2015 set out the rules for technical specifications in Regulation 42, saying that it must include “accessibility for disabled persons” as core to characteristics including quality, environmental and climate change performance levels, whole-life design, performance and safety—indeed, many of the things that this Bill is covering.

So, in theory, Amendment 141 should not be necessary. However, Regulation 42(9), on the technical specifications, says that:

“Where mandatory accessibility requirements are adopted by a legal act of the EU, technical specifications shall, as far as accessibility criteria for disabled persons or design for all users are concerned, be defined by reference thereto.”


There are three other sets of regulations—the Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016 and the Defence and Security Public Contracts Regulations 2011—which all also confirm the conformity with the EU procurement directive. I spoke at Second Reading about that directive.

The very helpful briefing from the RNIB sets out the technical concerns about how we need to ensure that accessibility rules are embedded in legislation following Brexit. This amendment is needed because we must have clear rules for accessibility criteria for people with disabilities and the principles of universal design, as defined under the UN CRPD.

This Government repeatedly say that they were proud to get Brexit done. They also say, proudly on their website, that they want

“disabled people to fulfil their potential and play a full role in society.”

In 2017, however, the UN published its Concluding Observations on the Initial Report of the United Kingdom of Great Britain and Northern Ireland, which was less than complimentary about the UK Government’s progress in abiding by the CRPD. In paragraphs 6(a), 6(d) and 6(e), the UN refers to:

“The insufficient incorporation and uneven implementation of the Convention across all policy areas and levels within all regions, devolved governments and territories under its jurisdiction and/or control … The existing laws, regulations and practices that discriminate against persons with disabilities … The lack of information on policies, programmes and measures that will be put in place by the State party to protect persons with disabilities from being negatively affected when article 50 of the Treaty on European Union is triggered.”


It goes on to say in paragraph 7(c) that the UK should

“Adopt legally binding instruments to implement the concept of disability, in line with article 1 of the Convention, and ensure that new and existing legislation incorporates the human rights model of disability across all policy areas and all levels and regions of all devolved governments and jurisdictions and/or territories under its control”.


There are 78 paragraphs in this UN report setting out what we must still do to comply with the UN CRPD; the Government are due to report back by 8 July 2023. In other parliamentary debates, Questions, Statements and legislation, Parliament is being told time and again by this Government that they want to meet those requirements because complying with the UN CRPD is an absolute priority.

I give two extremely brief illustrations of the failings, which are obvious to me as a disabled person but may not be to others. They would be resolved with a clear and legally binding requirement for accessibility criteria. The first is a bus driver on a publicly funded route, contracted by a council, who refuses to accept a wheelchair user because that driver still has the power to ignore the law and does not want to ask people to move out of the wheelchair space. The second is that a large number of DWP offices and those of their subcontractors —which are used for the assessment of individuals for their access to benefits, whether specifically disability benefits, universal credit or any other benefit—often have steps or stairs and no lift. There continue to be regular reports in the press of disabled people being marked as “no shows” at interviews when they could not access the building, which then results in them being penalised and not receiving the benefits. That is shameful. It also presumes that there would be no staff with disabilities who need to access the buildings, which is just unacceptable.

That is why we need Amendment 141. I look forward to the Minister’s explanation of how this Bill will meet the UN CRPD in relation to all matters on public procurement.

[Lord Aberdare (CB)]

My Lords, I have added my name to Amendment 82, in the name of the noble Lord, Lord Hunt of Kings Heath. As at Second Reading, my contributions in Committee will mainly reflect the interests of small businesses, including in the construction sector, and other smaller providers such as charities and social enterprises; of course, one of the Bill’s aims is to increase access to public contracts for such smaller organisations. I am grateful for the briefings that I have received from the engineering services alliance Actuate UK, from the NCVO and from the Lloyds Bank Foundation.

I will try not to repeat the arguments so strongly made by the noble Lord, Lord Hunt, but small businesses and charities often struggle to compete effectively in competitive tendering processes. They do not have teams with specific bid-writing expertise, so it is often chief executives or managers within the businesses who have to prepare proposals on top of their existing full-time and front-line roles. The process of completing pre-qualification questionnaires and invitations to tender is often onerous and complex, requiring considerable time and resources. Tenders are often launched with little or no warning and with tight timescales. Greater lead-in times and awareness of when tenders will be published would better help small businesses and charities to prepare and subsequently compete for relevant contracts.

The existing wording in Clause 14(1) allows for better practice, confirming that contracting authorities are able to publish a planned procurement notice. But your Lordships will know that being able to do something within legislation does not mean that it actually happens. Amendment 82 seeks to beef up the wording by replacing “may publish” with “must consider publishing” to place a greater onus on contracting authorities to publish a planned procurement notice. I feel that even this requirement is rather a low bar, as well as being extremely difficult to monitor or enforce. My preference might be simply to replace “may publish” with “must publish”.

The amendment also states that a planned procurement notice must be considered whenever “no significant barriers exist” and

“no detriment to service recipients would occur”.

Again, I might have preferred a more positive criterion spelling out that such a notice specifically should be published when this would enable a diversity of suppliers, including of course small businesses and charities, to participate in the contract. I hope the Minister will be able to tell us how the Government plan to ensure that small businesses and charities will receive proper notice of tenders that might be suitable for them, preferably through a requirement for planned procurement notices to be published in most circumstances.

This is just one aspect of ensuring that smaller contractors are involved early enough in the process, not just to be aware of and prepared for tenders for which they might be able and suitable to bid, but also when appropriate to bring their own skills and innovation abilities to influence the shape of the overall bid. Early contractor involvement is something I may come back to later. I welcome the amendments from the noble Lord, Lord Lansley, which also seem to point in this direction. Meanwhile, I am happy to support the noble Lord, Lord Hunt, in his Amendment 82.

[Baroness Worthington (CB)]

My Lords, I declare my interest as co-chair of Peers for the Planet and will speak to Amendments 85 and 87 in my name in this group. I also apologise as this is the first time I have spoken on this Bill, having not been present at Second Reading, but I read the debate with great interest.

I have tabled amendments to this Bill with three goals in mind: first, to try to embed a consideration of the climate change crisis facing us and the environmental goals we must meet into primary legislation. It is important that this appears on the face of the Bill rather than in a yet to be approved policy statement to show the long-term leadership and clarity around tackling these issues, given that public procurement is such a huge lever on both these issues. Secondly, I am seeking to put climate and nature-positive procurement processes in from the very outset of preliminary market engagement and embed it throughout the award criteria setting process to appointment. Thirdly, I want to bring greater transparency to the process and visibility so that all can see how this important lever is being deployed.

The Climate Change Committee highlighted in its recent progress report to Parliament the importance of ensuring that all procurement decisions by all government departments are aligned with our net-zero goals. My amendments seek to address this recommendation. I look forward to hearing the Minister’s thoughts and ask if he would agree to meet myself and other supportive Peers to discuss whether these amendments might be supported.

Amendments 85 and 87 relate to Part 3 of the Bill, under Clause 15, “Preliminary market engagement”. They aim to bring in an ambition to the new procurement regime to positively reward and incentivise those suppliers who are innovating and providing climate-positive and nature-positive sustainable products and services. I am very grateful for the interventions of the noble Lord, Lord Lansley, who I think is seeking to achieve a similar goal: to open this market to new entrants and providers. We cannot stay with the status quo; we must see a transition of our economy towards a more sustainable future. This offers government at every level a very important lever. I hope that it would bring economic benefits for business and wider society if we were to do this.

I am very grateful for the cross-party support of the noble Baronesses, Lady Verma, Lady Boycott and Lady Parminter, on these two amendments.