Procurement Bill [HL]

Lord Scriven Excerpts

Committee stage
Wednesday 13th July 2022 Grand Committee

Some of the details of how that is done—or part of how it is done, as some of the stuff is in statute and we will talk about things such as preventing modern slavery and so on—will come within the national procurement strategy, which we will discuss on a later group. That would be my response to the noble Baroness. I sense that I have not persuaded the whole Committee on this but, for all the reasons I have given, there is a danger in trying to place too much of this in primary legislation, which is why I urge that the amendment be withdrawn.

[Lord Scriven (LD)]

I have listened very carefully and have just reread every amendment in this group. Can the Minister point to one amendment that prescribes how the principles in each amendment have to be enacted by each local authority or each purchasing authority? They are broad principles which allow the flexibility that the Minister has just described or relate to issues such as social value, which is already in Clause 11. The amendments are exactly the same regarding social value, the environment and social aspects. Where does the Bill say what that means and where does it not allow discretion?

[Lord True (Con)]

A considerable number of amendments mandate that contracting authorities must have regard to certain items. Others add to the objectives in Clause 11. It is a difference of interpretation. The Government are in one place. On reflection, I think that perhaps people outside government circles will think that that is not as unwise as it now seems. I again respectfully suggest that the amendment be withdrawn.

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The Government often talk about being world leading. These targets, which, as the noble Baroness, Lady Boycott, set out, have been established through very careful consideration and development of the national food strategy, are still extraordinarily modest by international standards. I know of many cities where targets for food in schools, hospitals and prisons are very close to 100%, with very demonstrable positive effects. I agree with the noble Baroness, Lady Boycott—and the comments in the Committee have supported this—that this is an uncontroversial amendment which the Government can surely accept.

[Lord Scriven (LD)]

My Lords, this has become a fascinating discussion, particularly when linked to the previous group on Clause 11, as my noble friend Lord Wallace of Saltaire said. I rise to support what I think is the most important amendment in this group: Amendment 60, tabled by the noble Lord, Lord Lansley. If the wording is “may” rather than “must”, all the subsequent amendments are irrelevant, because the Government do not have to produce a national procurement policy statement.

We need to press the Government further on the framework, beyond the four issues in Clause 11, that needs to be laid down in this statement because very few people, if any—particularly not the Minister—have discussed this from the perspective of business and those who will be making significant investments in contracts to try to ensure that public value is delivered. They take signals over the medium to long term about where to invest. These signals are really important in terms of business planning and those businesses being able to make long-term commitments to the public sector.

Both Ministers keep coming back to saying that things are in different parts of different legislation in different parts of government. We have been told that the whole purpose of this Bill is to make public procurement simple, particularly for small to medium-sized enterprises. I do not know many small to medium-sized enterprises that have a department that can wade through different public sector Bills to work out what the signals are and what the company needs to do to make secure, good bids for public sector procurement. If the Government are minded not to amend Clause 11, they have to write a very detailed outframe of the national procurement policy statement to make those signals so business can make the right decisions—

[Lord Hunt of Kings Heath (Lab)]

Does the noble Lord accept that you need to do that as much for procurement directors as for the businesses? With his experience of the NHS, how does he analyse what the current procurement statement actually means? I think it is very confusing.

[Lord Scriven (LD)]

I particularly did not use the prism of public sector procurement professions, because I thought that the noble Lord, Lord Hunt, had already made the case for the NHS, and others had made it for different government departments and professionals. I was trying to point out that there is a different aspect to this. This is about helping business by making it simpler for it to get involved in procurement, particularly small to medium-sized enterprises. That is the Government’s desired aim. A lack of detail in Clause 11, along with the fact that the national procurement strategy statement may not be done, makes that really difficult for business.

I come back to the view that everything here helps not just procurement professionals and government but businesses, particularly small to medium-sized enterprises, to be successful. It is really important that the Bill contains a co-ordinated and codified approach to the Government’s strategy on public sector procurement, and that it is not left to myriad different policies and Bills, for the sake of business being able to negotiate and navigate what is at the moment the very complicated field of public sector procurement. If the Government do not take up many of the amendments about the environment, food and social value, I assure the Committee that their aim to simplify public sector procurement, particularly for small and medium-sized enterprises, will not happen.

[Baroness Boycott (CB)]

I just wanted to add something to my amendment; I thank Members of the Committee for their support. I have very little time for Brexit, as probably everybody knows, but when the French attempted to do this, they were stopped under EU rules as it was to do with restrictive trading. Now that we are out of the EU, we have a chance to produce a fantastic procurement Bill that favours small and medium-sized enterprises, local procurement, local health and local sustainability. If we do not take that chance, frankly we will have missed one of the great opportunities that Brexit gave us.

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[Lord Scriven (LD)]

My Lords, I have added my name to Amendment 528C, which my noble friend Lady Brinton has already spoken to. Like her, I am a little perplexed about the Government’s view, according to the Minister, that public sector procurement should be based on value for money and that there should be a co-ordinated approach to public sector procurement so that businesses understand the rules in which they are working but also have flexibility, yet the health service seems to be excluded from that.

For the convenience and understanding of the Committee, we need to look particularly at Section 79 of the Health and Care Act 2022, which says:

“Regulations may make provision in relation to the processes to be followed and objectives to be pursued by relevant authorities in the procurement of”


services. Relevant authorities in this legislation are: NHS England; NHS England foundation trusts; an NHS trust established under Section 25; interestingly, a combined authority, which is a combination of local authorities; and a local authority in England. A relevant authority is not just an NHS body; it is a relevant authority if it is purchasing or procuring

“(a) health care services for the purposes of the health service in England, and (b) other goods or services that are procured together with those health care services.”

Ministers have said previously from the Dispatch Box that all that the provision applies to is the provision of healthcare services in England. They have not spelt out that it also applies to other goods or services that are procured together with those for healthcare services. If, for example, a care village was being procured where there was predominantly a capital spend on housing and where services for healthcare were to be procured at the same time, which set of procurement rules would apply? Would it be the rules within this Bill, those within the Health and Care Act, or a combination of both?

It is important that Section 79 of the Health and Care Act says that

“Regulations under subsection (1) must, in relation to the procurement of all health care services to which they apply, make provision”


for the following:

“(a) ensuring transparency; (b) ensuring fairness; (c) ensuring that compliance can be verified; (d) managing conflicts of interest.”

There is nothing about value for money, yet the Minister has said repeatedly at the Dispatch Box in this Committee that the Government’s view is that public procurement should be based on value for money. If that is the view of the Government—not of the Cabinet Office, but of the Government—why is value for money not in the Health and Care Act as a factor for public procurement of healthcare provision in England and other goods or services that are procured together?

There is a gaping hole which is not clear. It is so deep that I do not think the Minister can explain the contradiction between this Bill and the Health and Care Act in terms of procurement provision. So, particularly on joint procurement in something like a care village, which provision would apply? If the Minister cannot answer that very clearly from the Dispatch Box, I feel that this is going to come back on Report. Clearly, there is confusion not just in terms of legislation but for those businesses which wish to be part of a contract for a joint provision between health and other services.

My final question is this: why is it that combined authorities in a local authority in England are in the Health and Care Act but it says here that local authorities will be driven by the provisions in this Bill? Which one would a local authority have to adhere to in terms of the confusion that is around it?

[Lord Davies of Brixton (Lab)]

My Lords, I want to make a point about proportionality. It arises under the amendment in the name of the noble Lord, Lord Aberdare, and runs through much of the Bill. In a sense, I am asking a general question but hanging it on the hook of Amendment 120. It is a point of some concern to small organisations; we are talking here about small charities and local voluntary organisations. In much of the debate, people have referred to businesses and enterprises, but this will also apply to local voluntary organisations and charities, which clearly do not have the resources or staffing to deal with the scale in the way that an organisation such as Oxfam, for example, could. They have their local job to do; to a certain extent, spending a lot of time drawing up a bid to provide a service will be a diversion from their work. Proportionality must have a role in assessing a contract. I am intrigued and ask the Minister to give some indication of an overall perspective on proportionality as it affects local organisations, charities and voluntary organisations.