Procurement Bill [HL]

Debate between Lord Lansley and Baroness Noakes

Report stage
Monday 28th November 2022 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I have Amendments 4 and 190 in this group. Some questions have been raised by the Benches opposite about whether I was here for the commencement of the debate. I assure the House that I heard every word of the Minister’s opening remarks from my place and I am not usually regarded as invisible in your Lordships’ House.

Before I get to my amendments, let me say that I have much sympathy with the amendments tabled by the noble Baroness, Lady Brinton. I think we have to stop the culture of exceptionalism for the NHS and bring it within the ordinary rules; other noble Lords have said why that is. We should allow an exception only if there is a very good case for it so I will be listening very carefully to what my noble friend the Minister has to say about that when she concludes this debate.

My amendments each cover a distinct issue. I will start with Amendment 190 because that is the easier of them. Noble Lords may have noticed that my noble friend the Minister has added her name to Amendment 190 and I am grateful for the Government’s support in dealing with a technical issue that I raised in Committee following the eagle-eyed scrutiny of the Bill by Professor Sanchez-Graells of the Centre for Global Law and Innovation at the University of Bristol.

The Bill had defined how to value contracts including VAT when the contracting authority paid for the goods or services that it was procuring but failed to deal with the converse situation when it received money, which can arise under a concession contract. Amendment 190 puts this right and so sums receivable under contracts will be valued including the related value added tax. I look forward to moving this amendment formally in due course.

Amendment 4 is an amendment to government Amendment 2. Amendment 2 has virtually rewritten most of Clause 1 but my amendment would have also been proposed in relation to the text of the Bill as introduced. It is about control and how to define it, which I raised in a couple of amendments in Committee.

A public authority is defined in the amended Clause 1(2) proposed by Amendment 2 as including a person who is

“subject to public authority oversight”,

which is in turn defined in amended Clause 1(3) as being

“subject to the management or control of … one or more public authorities, or … a board more than half of the members of which are appointed by one or more public authorities.”

Thus, if a board is involved, control is determined by the fact of appointments rather than the capacity to appoint members of the board. That is an unusual concept for those of us steeped in company or tax law.

The Clause 1 approach to control is in contrast to its use in determining whether vertical arrangements exist in order to qualify as an exempted contract under Schedule 2. The Schedule 2 definition has its own problems, which I spoke about in Committee, but its core concept is to use the Companies Act 2006 definition of control, which is based on capacity to control. I believe that the issues with Clause 1 and Schedule 2 were not satisfactorily dealt with when I raised these points in Committee, so I have returned to them today, to highlight that the Bill is not internally coherent in its approach to determining whether organisation A controls organisation B.

My solution is to import the Schedule 2 definition into Clause 1, save for paragraph 2(3) of Schedule 2. I personally think that sub-paragraph (3) is very odd in the context of Schedule 2, but it certainly does not belong to the approach for control in Clause 1. I have no intention of dividing the House on this matter and I am by no means confident of my drafting, but I believe that the Government should look again at the robustness and coherence of the approaches they have taken in the Bill.

[Lord Lansley (Con)]

My Lords, I have no amendment in this group, but I want to refer to government Amendment 34. I entirely agree with the proposition that the Bill enables public procurement to be put on a better path than it has been in the past. Many of those working in procurement across the public services have welcomed the Bill. As it happens, they also welcome the scrutiny we are giving it, because it is leading to improvements to the Bill. I did not attempt to count the number of government amendments we dealt with in Committee, but they were in the hundreds. In addition to those, I calculate that we have 153 government amendments on Report, so if it takes us a while, it is not our fault. None the less, it is a good job and it is right that we should do it. That is why I raise the following question on government Amendment 34.

My noble friend will recall that these amendments were not moved in Committee because there was some difficulty about what “covered procurement” was relative to “procurement”. At the time, I supported the Government’s amendments, because it seemed right to ensure that the broader scope of the Bill and the regulatory requirements encompassed within it should be applied to larger procurements and not smaller ones. I now support the insertion of “covered” before “procurement” in all the government amendments—except Amendment 34. Why do I single it out? Including “covered” means that procurements which are above the threshold and not exempt are subject to the Bill and the full range of its requirements—see Schedule 1 for the thresholds and Schedule 2 for the exemptions. Clause 2 makes it clear that public contracts are those that are above the threshold and not exempt. Okay, fine: “covered procurement” makes a distinction between those that are exempt and of lesser value and those that are of a higher value and included.

Clause 11 relates to procurement objectives. Procurement objectives are statements, not least by Parliament as well as by the Government, about what those who are engaged in procurement should regard as their responsibility. The essence of Clause 11 is that:

“In carrying out a procurement, a contracting authority must have regard to … delivering value for money … maximising public benefit … sharing information”—


so that people can understand the authority’s procurement policies and decisions—and

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

In my submission, these are not regulatory requirements; they are the basis on which contracting authorities should be behaving. We will come on to debate Clause 11 and will deal with its proposals then. But it seems to me that, however we end up stating in Clause 11 that these are procurement objectives for contracting authorities, they should apply to all contracting authorities and to all their procurements.

Interestingly, the Government resist this on grounds of flexibility. I am not sure in this context what that means: flexibility not to have value for money; flexibility not to act with integrity? But the Government have not disapplied the operation of Clause 12 and the national procurement policy statement. The Government want to have the power to apply the statement to all procurements, so we do not get “covered” in front of procurement in Clause 12(1) but we do get “covered” in relation to procurement in Clause 11. This must be wrong. It must clearly be right that not only the procurement statement but the objectives on which it must be based must apply to all procurements.

So I put it to my noble friend that this is not a technical amendment. There may be many that are technical amendments, but this is a substantive amendment that has an unhappy consequence that it would disapply the procurement objectives to a significant number of the lower-value procurement activities in the public sector. So when we reach government Amendment 34, I invite my noble friend not to move it. I hope that she will at the very least do that on the grounds that this should be revisited before Third Reading.

Procurement Bill [HL]

Debate between Lord Lansley and Baroness Noakes

Committee stage
Monday 4th July 2022 Grand Committee

[Lord Lansley (Con)]

My Lords, I am glad to have the opportunity, by way of Amendment 3, to probe—I think it is literally that—how the Bill is to be interpreted in relation to the activities of various organisations. I am using universities as a way of trying to understand how it works. Clearly, universities are charter bodies. I assume they are not included in a definition of public authorities, since they do not exercise an authority of a public nature. That is question No. 1.

Question No. 2 is: if they are not a public authority under Clause 1, are they a public undertaking in that they are

“funded wholly or mainly from public funds”

or

“subject to contracting authority oversight”?

Are they subject to such an oversight? Is the Office for Students such a contracting authority? I suspect it might be, and might have oversight. Is the intention that universities, purely by way of an example, should be included in the definition of public undertakings for these purposes? If they are, I come back to Amendment 3 and say: perhaps they should not be because, as charter bodies, they are self-governing institutions and, I would have thought, can be perfectly comfortable outside the scope of the legislation.

I will not comment on other amendments in the group, other than to say that they afford an opportunity, not least for my noble friend Lady Noakes—I think she is not intending that hers be moved—to explore the way in which public contracts are to be defined, the extent to which there are exempted contracts within those and the rationale behind the listing of the exempted contracts in Schedule 2. I will leave that to my noble friend. Suffice it to say that I am, as my noble friend the Minister said, generally in a position of us trying to regulate less rather than more and to get to the point where people are clear where they are pursuing things competitively, where they are self-governing institutions and where they have other forms of accountability. Where we are not required by our international obligations or other reasons to impose regulatory requirements on them, we should try to avoid doing so. I would be grateful if my noble friend if he uses the example of universities as a way of helping us understand how the specific provisions in Clause 1 are to be interpreted. I beg to move.

[Baroness Noakes (Con)]

My Lords, I have a number of probing amendments in this group and throughout the Bill. The majority of them have been inspired by Professor Sanchez-Graells of the Centre for Global Law and Innovation at the University of Bristol Law School. I am grateful to him for sending me his research-based analysis of the Bill, which listed 50 areas to explore further. Noble Lords will be relieved to know that I have whittled this down to a smaller number of probing amendments.

In this group I shall speak to Amendments 4, 8, 9, 23 and 29 in my name. Amendment 4 is a probing amendment in relation to the definition of “public authority” in Clause 1. Subsection (2) includes authorities or undertakings

“subject to contracting authority oversight”,

which is defined in subsection (4). That says “contracting authority oversight” exists

“if the authority is subject to the management or control of … a board more than half the members of which are appointed by a particular contracting authority.”

My amendment probes whether this is the right definition.

The Bill’s definition appears to turn on whether board members are actually appointed by a contracting authority. Company boards are appointed by shareholders, so who is appointed by whom depends on whether the shareholders exercise their voting rights in any election of directors. A contracting authority may own a majority of shares and hence be capable of appointing a majority, or even all, of the directors but may not in fact exercise its rights, whether by accident or design. Nevertheless, the authority will be capable of voting for board appointments and would, in normal parlance, be treated as having control. Most definitions of “control” in other legislation use that concept and I suggest that the Bill would be better drafted on the ability to control, rather than on what votes have taken place in the past.

My Amendments 8, 23 and 29 probe why the Bill, with its admirable aim to consign EU procurement code to history for the UK, has persisted in using language that can only have been derived from the EU and is not part of UK usage. I raised this at Second Reading. When I searched online for “pecuniary interest”, which is the particular phrase used, the only references that came up were to declarations of pecuniary interests in connection with standards in public life. The term is used in that way in secondary legislation dealing with local authorities. It never seems to be used in the context of contracts.

My amendments propose replacing “pecuniary interest” with “consideration”, which is a term that has a long-standing pedigree in contract law. An alternative could be to remove the words entirely, as it is not clear why it is necessary to restrict contracts that state a consideration, monetary or otherwise.

My last amendment in this group is Amendment 9, which probes another term that is used in Clause 2. A contract within the scope of the Bill is one for the supply of goods, services or works to a contracting authority. The context in which I tabled this amendment was to see whether it covered contracts where a contracting authority contracts for services to be provided to some other person; for example, where social care services are procured. This is clearly the intention of the Bill, but I am not clear that it has been drafted to achieve that.

On reflection, I query whether the words “to a contracting authority” were at all necessary in the clause. It may be a hangover from the EU rules, which we have by no means escaped with this Bill. Every time words are put into legislation, there is a question about what they mean or do not mean. This came up earlier when the noble Lord, Lord Fox, was speaking. It is important to be clear that we use words only when we absolutely have to and that they have definite meaning.

Advanced Research and Invention Agency Bill

Debate between Lord Lansley and Baroness Noakes

Committee stage
Monday 22nd November 2021 Grand Committee

[Lord Lansley (Con)]

My noble friend referred to the agreement having been shared with us, but I am not aware of having seen it or where it was shared with me.

[Baroness Noakes (Con)]

My noble friend also sent a letter to me following last week’s Committee; that was shared only with the noble Lord, Lord Browne of Ladyton. My noble friend’s department has form on not sharing widely with those in Committee when things are circulated. Can he go back to his department to ensure that all active members of the Committee get access to all the information circulated in response to its deliberations?

Advanced Research and Invention Agency Bill

Debate between Lord Lansley and Baroness Noakes

Committee stage
Wednesday 17th November 2021 Grand Committee

[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.

Professional Qualifications Bill [HL]

Debate between Lord Lansley and Baroness Noakes

Committee stage
Wednesday 9th June 2021 Lords Chamber

[Baroness Noakes (Con)]

My Lords, the noble Lord, Lord Palmer of Childs Hill, who is no longer in his place, explained the concerns which underpinned his Amendment 12, debated earlier this afternoon: namely that regulations could impose unreasonable burdens on a regulated profession to remedy a lack of appropriate qualification or experience in overseas professionals. My amendment has the same core concern. It was drafted after reading similar concerns expressed by the British Dental Association, which highlighted the burdens that could be imposed on regulators if they are required to assess professionals or overseas qualifications, or to develop new recognition agreements, to comply with regulations under Clause 1.

Even if regulators have autonomy over individuals who can practice, the regulations under Clause 1 could well impose burdens and costs in making the regulators set up operating processes to carry out the assessments to make the decisions, including having to assess the suitability of overseas awarding institutions, as well as the nature of practical experience that comes with individuals who wish to practice. In addition, it was noted that the costs which were incurred in any such new activity are likely to end up being borne by existing members. Regulators get the majority of their income from membership fees, and asking existing members to shoulder the costs of funding a problem of having too few professionals—which is what Clause 1 is said to be for—is, at the very least, unfair. That is why my amendment refers to the impact on existing members of the profession.

Amendment 9 would add a new determination that the regulated profession must make: that the additional processes of making good any deficiency in an overseas qualification

“can be met without … unreasonable costs or other burdens on”

the regulated profession or the existing members of that profession. I have expressed this in terms of costs or burdens because a regulated profession might, for example, have a shortage of suitable individuals who could carry out the processes and who therefore could not be obtained at any cost. It would actually be imposing an unreasonable burden for the regulated profession to bear. Importantly, my amendment places the judgment in the hands of the regulated profession.

Clause 2 refers to “unreasonable delays or charges”. These are words that my noble friend Lord Lansley wishes to delete with his Amendment 18, which is also in this group. But from my perspective, it should always be the regulated profession, and not the Secretary of State or other national authority, who should make that judgment. I look forward to hearing what my noble friend has to say about his Amendment 18, but I see the place for assessing burdens and costs, and that that assessment should be made by the regulated profession. I beg to move.

[Lord Lansley (Con)]

My Lords, I am very glad to speak to my Amendment 18 in this group.

In relation to Amendment 9, moved by my noble friend Lady Noakes, I think she has a point. Somewhere, we should be taking account of the costs that are imposed on regulators, and by extension as they are imposed on the professionals who are themselves regulated. In the previous group, the noble Baroness, Lady Randerson, referred to the material in the impact assessment on that point. Personally, I do not think Amendment 9 puts it in the right place, with great respect to my noble friend. There is a good point for putting it perhaps slightly later in Clause 1, and we may come back to this on Report. It seems that it certainly should be taken into account in the making of regulations under Clause 1; it just is not, at the moment. For example, there are things as to fees being paid in connection with an application but nothing to do with the regulations taking account of the costs on those regulated, including those who are currently regulated in that profession.

Why have I brought forward Amendment 18? The reason is that it relates to the inclusion of

“without unreasonable delays or charges”

at the end of Clause 2(2). What does that do? It is trying to define the circumstances where demand for a professional service is not being met. My fundamental problem with it is that it illustrates this by reference to unreasonable delays or charges. The implication is that this is the criterion by which one measures whether professional services are in sufficient supply.

For example, in relation to the health service, it is very hard to measure why there are delays for treatment. Sometimes they occur because of lack of workforce and sometimes for completely different reasons. It may be incredibly difficult to ascribe delays to simply having insufficient overseas applicants for a particular profession in the health service. Charges will be even more difficult since we do not charge. It may be possible to do this for dentistry but not for most other healthcare professions, since we do not charge consumers for access to services.

Interestingly, my noble friend Lord Grimstone wrote a letter to the Delegated Powers Committee—I think last Thursday—which is in its latest report, published on Monday. There is a paragraph which comes exactly to this point, in which he says:

“The Committee sought further clarification on the point that this demand needs to be met without unreasonable delays or charges. Those words make it clear that regulations can be made where the demand for the services of the profession is, strictly speaking, being met but the consumers of those services are experiencing unreasonable delays or having to pay high charges.”


Demand for those services under those circumstances is not, “strictly speaking, being met”; it is not being met. We do not need to write “unreasonable delays or charges” into the Bill for it to be evident that, in circumstances where insufficient members of a profession are providing services, there are delays in accessing those services; that is plainly the case.

As the end of the same paragraph, the Minister says, rather tellingly, that unreasonable charges and delays

“are illustrative of the considerations that the appropriate national authority would make in relation to this condition.”

“Illustrative” is not what the Bill says. It does not say “for example”, which it might well say. It says

“met without unreasonable delays or charges.”

It specifies those factors, so I think we should take them out. If unreasonable delays or high charges to consumers result from a lack of professional supply and that can be remedied by overseas applications, the appropriate national authority can make such a determination. It does not need the Bill to reference “unreasonable delays or charges” for that to happen.

I hope my noble friend will recognise that, in this respect, I am not trying to argue that delays or extra charges are not important; they are very important and may well be the principle determination one looks for in some professions. In others, one looks for other things. We should simply take those words out when the time comes—I hope we will—and the appropriate national authority will, if necessary, properly consult on what the demand for a professional service may be and the circumstances in which it is not being met.

Business and Planning Bill

Debate between Lord Lansley and Baroness Noakes

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 13th July 2020 Lords Chamber

[Baroness Noakes]

My Lords, I have not smoked for nearly 40 years and I loathe cigarette smoking, so I gently say to the noble Lord, Lord Clement-Jones, that he has misremembered my involvement in earlier anti-smoking legislation.

Nevertheless, like my noble friend Lady Neville-Rolfe, I do not think that the Bill is the right place for this amendment. The amendment would affect the granting only of new licences and would therefore discriminate against any premises granted a temporary licence under the Bill. Echoing what my noble friend Lady Neville-Rolfe said, I think that there is a massive danger to our economy of not getting it going again. It is not an overall concept of the economy; these are individual businesses that will go under if they cannot find a way of becoming viable. We should not lumber them with a competitive burden not borne by other businesses that already have pavement licences.

I do not know whether this is a real problem. The Health Survey for England 2017 had only around one-quarter of people self-reporting exposure to second-hand smoke, and only around 15% saying that it was smoke from outdoor areas outside pubs and restaurants. The majority appear not to be bothered. Be that as it may, we should cover that in a consultation and an evidence base that is sought on the normal basis before taking primary legislation to deal with this, if indeed it is an issue, rather than trying to squeeze it into the Bill, which is about trying to make things easier for some businesses to get going again.

[Lord Lansley (Con)]

My Lords, I congratulate the noble Baroness, Lady Northover, on bringing forward this amendment and I support it. If I may presume to say so, we were together as part of the health team in the coalition Government. I am very proud of the fact that we implemented the display ban on tobacco in shops and brought in the ban on vending machines, which was particularly important in restricting the access to tobacco and cigarettes for young people. I also initiated the consultation that led subsequently to standardised packaging.

Between 2011 and 2018, the proportion of adults in this country who were smoking went down, as the noble Baroness suggested. It has gone down from nearly 20% to below 15%. Most encouragingly, among 18 to 24 year-olds the reduction has been largest: from 25.8% down to 16.7%. There has been a reduction of more than one-third in the number of young people smoking—the 18 to 24 year-olds. That is one of the reasons why the impact of this issue in relation to pubs, clubs, restaurants and the like is particularly important for young people who are out and about.

I want to make three points. First, we are in the midst of a health crisis. In a health crisis, which is probably demonstrating to us that one of the underlying factors that has not helped us is the poor underlying health of many people in this country, we must do everything we can to try to improve population health in this country. We have not done enough and need to do more. We must prioritise public health and, by extension, if this amendment were taken on board this measure—modest as it may be in the overall scheme of things—would move us in the right direction.

My second point comes to the point made just now by my noble friend Lady Noakes. It is an important one. This is a temporary measure and would be specific in relation to new licences, but the essence of this Bill is that it will give an opportunity for premises which have previously been licensed for indoors to move outdoors; it gives an opportunity for licensed premises to operate on pavements and the like. In effect, what it says is, “We are extending the public space.” In my view, as we extend the public space, so we should extend the protections for the public that go with it. That means a ban on second-hand, passive smoking for those people who are enjoying that opportunity.

I shall make a third point. I am reminded of when my noble friend Lord Young of Cookham and I worked together on a little conspiracy of our own when we were in the other place: the ban on smoking in public places. I was the shadow health Secretary at the time. The nature of our conspiracy was that we secured the agreement of the whips that there would be a free vote. So I very much hope that neither my noble friend nor I will have to vote against a government whip on this matter. The Government could adopt exactly the same approach and give noble Lords in this place a free vote on the amendment. They might also do the same in the other place, and we shall see where we end up on the basis of the arguments. We implemented a ban on smoking in public places on a free vote and, in these circumstances, I think that we might well extend that ban on the same basis for this measure.