Procurement Bill [HL]

Lord Wigley Excerpts

Committee stage
Wednesday 13th July 2022 Grand Committee

[Baroness Worthington (CB)]

My Lords, I apologise for my late arrival. I will be brief. Amendment 65 in my name and the consequential Amendment 546 seek to put more detail in the Bill in relation to the national procurement policy statement. I shall not rehearse all the arguments that have been made but simply say that the issues highlighted by Amendment 65 are enduring and long-term goals of government. There is a need to see that they are continuously integrated into government policy-making, as the noble Lord who spoke before me just highlighted. We need to have clarity if we are going to make transitions happen in our economy that make it fit for the future. It is entirely appropriate that the Bill should set out specific guidance for the policy statement on these long-term, transitional issues. All procuring parties need to have clarity of purpose set out for them with no doubt. I agree that the continued resistance to this signals something that we should be very concerned about, because it indicates a degree of deviation from accepted policy in other parts of the Government and across all parties. We would like to see something in the Bill and would very much welcome discussions with the Minister on this topic as there is a strong degree of consensus on this issue.

I also strongly support the amendment in the name of the noble Lord, Lord Lansley, which would make it a requirement that the statement be published rather than there being merely a power. It seems entirely correct that that should be changed to make it a duty. I am also in favour of Amendment 66 in the name of the noble Baroness, Lady Boycott. Part of the reason I was late is that I was at a meeting discussing a response to the Government’s food strategy. There are some very important things in that strategy. We need levers with which they can be delivered. You cannot simply make policy statements and expect things to happen. If the Government are seeking greater reliance on British-grown, healthy, nutritious food, the procurement process is the way to do that, and we must see more clarity on that in the Bill. I fully support that amendment.

I also support the amendments in the name of the noble Baroness, Lady Parminter. We as a Parliament should be more included in the process through which the policy statement is derived, and I fully support her amendment that seek to improve the process by which we scrutinise and agree the statement.

[Lord Wigley (PC)]

My Lords, I have waited until the latter stages of this debate before intervening, for the simple reason that my Amendment 78A deals with totally different subjects from everything else that has been debated. I overwhelmingly agree with the comments made in the general debate, but I will not follow them through at this point.

I will speak briefly to my Amendment 78A, which is included in this rather diverse group. It relates to what I might call the “Welsh clause”—Clause 13. I was glad to hear the comments of the noble Earl a moment ago on the way that policy is being unfolded in Wales. That point has arisen on a number of occasions, in various debates.

We have already heard from the Minister that there has been close co-operation between the Welsh and UK Governments in reaching an agreed approach and wording, reflected in this Bill. That being so, it is surely of fundamental importance that this clause is not distorted or undermined by later legislative steps taken by this or any future UK Government. This amendment, if passed, would require agreement by Senedd Cymru to any proposed changes to this section. That is not an unreasonable proposition, given that the clause relates solely to Wales and is itself predicated on an approach of good will and co-operation. All that is needed by this amendment is a straight majority of Senedd Members present and voting.

In the spirit of co-operation in which Senedd Cymru, the Labour Government and Plaid Cymru have approached this matter, I invite the Minister to accept this amendment.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Wigley. I agree with him, but I will take us back to the issues that have mostly been covered in this group. There are six amendments to which I have attached my name and I am sure the Committee will be relieved to know that I am not going to speak to them all.

I will speak chiefly to Amendment 61 from the noble Lord, Lord Lansley, to which I have attached my name. It was very kindly introduced by the noble Baroness, Lady Noakes, although it was not backed by her. I will now attempt to present the argument in its favour. I stress that the intellectual work on this has been done very much by the noble Lord, Lord Lansley, but, when I saw the amendment, I thought it was so important that it needed to be picked up.

The purpose of this amendment is linked to the description of the national procurement policy statement in Clause 12, which is

“setting out the Government’s strategic priorities in relation to procurement.”

Wrestling with all the government amendments and the complexity of this Bill has been challenging for the small Green group, but I understand that there are no government amendments to change “procurement” in Clause 12(1) to the technical term “covered procurement”. It is the Government’s intention that their strategic priorities should apply to all public procurement, including below-threshold procurement, light-touch procurement, international agreement procurement, and defence and security contracts.

As noble Lords have been talking about a lot in this group, the first part of this clause is the achievement of targets set out in the Climate Change Act 2008 and the Environment Act 2021. I posit that there are good reasons to put statutory obligations such as these in a list of strategic priorities; if they are not included, they are effectively deprioritised, which would be potentially damaging to the achievement of targets that have been mandated by Parliament, with very strong cross-party support. To pick up the points made by the noble Lord, Lord Wallace, these are things that have been agreed but need to be delivered on.

On that point about delivery, I refer to the report two weeks ago from the Committee on Climate Change. In what has to be called the strongest of language, it spoke about “major policy failures” and “scant evidence of delivery”. Through this procurement, we need to see this urgent delivery.

In introducing this group, the noble Baroness, Lady Noakes, suggested that this was a list of pet clauses, but the first elements here, on the climate targets and the Environment Act, are clearly not pet clauses. We have covered proposed new paragraph (b) about the Public Services (Social Value) Act 2012 at length, so I will not go back to that territory. I admit that proposed new paragraph (c) on innovation and competitiveness is not the wording I would have chosen and might perhaps fit in that category, but there is an important fourth point here with proposed new paragraph (d) on

“the minimisation of fraud, corruption, waste or the abuse of public money”.

--- Later in debate ---

[Lord True (Con)]

Well, I did try to get there but I had an intervention, then another intervention. It would be discourteous not to respond to—or be provoked by, as some may feel—the odd intervention. Is that not the give and take of debate, which is what our blessed Parliament is all about? If I have given the noble Lord incorrect advice, I will correct it, but what I have read out is the legal advice that I have been given.

Amendment 78A tabled by the noble Lord, Lord Wigley, provides that a Minister of the Crown may not introduce a Bill in either House of Parliament to amend or omit Clause 13, which relates to the Wales procurement policy statement, unless, as the noble Lord explained, Senedd Cymru has resolved by a majority of those present in voting to approve it. This is an uncongenial part for the noble Lord: the effect of this amendment would be to fetter the power of this and any future Parliament. The Government therefore cannot accept this amendment. However, as I mentioned earlier—he was kind enough to allude to this—we respect the devolution settlement and the competence of Wales on this matter. I have placed that and the degree of co-operation we have with the Welsh Government on the record in Hansard. That due respect for the devolution settlement is something that the Government aspire to see continue in this case, but we cannot accept the lock that he requests in the amendment.

[Lord Wigley (PC)]

I am grateful for and accept the integrity with which the Minister is putting that forward and the spirit in which he stated the difficulty that there would be with my amendment. None the less, he will be well aware that there are other forms of amendments that could be put forward, possibly on Report, to ensure that there is the necessary consultation and discussion before any changes in legislation take place. That form of words has appeared in other legislation. Could I invite him to consider that between now and Report? I think that that would be a good indication for those in Cardiff.

--- Later in debate ---

[Baroness Worthington (CB)]

My Lords, I rise to speak to two amendments in my name. I am grateful for the support of the noble Baronesses, Lady Verma, Lady Boycott and Lady Parminter. At this stage in Committee, we have had the debate about why we feel this Bill is lacking specificity, does not provide sufficient guidance and is a missed opportunity, so I do not propose to rehearse those arguments. I think that, if the Bill were different, we would not be seeking to amend Clause 22 on award criteria in this way. It is evident that we are trying to convey our concern that we need more guidance on these important long-term targets that need to be embedded in the procurement process.

I ask the Minister whether, under his interpretation of

“the subject-matter of the contract”

in Clause 22(2)(a), a contracting authority can set criteria that specifically relate to the public good that derives from environmental benefits that relate to the things we have put into our amendment. If that is the case, we have a workable solution. If it is not, we need something else in the Bill. To be clear, my question is: in setting award criteria under Clause 22, can a contracting authority put in specific, measurable criteria that relate to the wider public, environmental and social good?

[Lord Wigley (PC)]

My Lords, I will speak to Amendment 124A, which stands in the name of the noble Baroness, Lady McIntosh, who is involved in other parliamentary duties at this point. She asked whether I would speak to it on her behalf, and I am pleased to do so.

The amendment specifically relates to the need for all contracting authorities to be required to ensure that the award criteria include environmental impact considerations. This, of course, is a provision which stands in its own right in the general context but also specifically relating to Scotland. It is worth noting that the genesis of this amendment comes from the Law Society of Scotland and, as such, we should take very good note of it. The society emphasises that for Scotland, procurement legislation is devolved, as we know, and that the regulations applicable to Scotland—those which have been transferred into Scots law from EU directives—include the Public Contracts (Scotland) Regulations 2015, the Utilities Contracts (Scotland) Regulations 2016 and the Concessions Contracts (Scotland) Regulations 2016.

In fact, the Scottish devolution settlement specifies that all procurement matters that are not specifically reserved under Schedule 5 to the Scotland Act 1998 are devolved unless, as always, the UK Parliament tries to modify them, subject to the Sewel convention. As we all know, use of the Sewel powers can be extremely controversial at times. The Scottish Government have flagged up their opposition to such intervention by the UK Government in the context of the Bill.

As noble Lords will be aware, the Green Party is a partner in the Scottish Government, procurement regulations in Scotland have a number of environmental considerations built into them and the EU principles largely remain in force. It is not the case that UK contracting authorities with reserved functions will be subject to UK rules. For example, the Defence and Security Public Contracts Regulations 2011 are UK-wide, as I understand it, and that has a significance in this context.

This amendment seeks to make it a statutory responsibility for contracting authorities, in setting award criteria, to

“take account of the environmental impact of the award”.

This would place a parallel emphasis on environmental impact in the context of English or UK contracts, as is the case in Scotland. As the Law Society of Scotland has stated:

“It is important that the Bill does not lead to confusion in the UK for parties, given that different rules will apply in the UK market”.


Inevitably, given the devolution settlement, there will be occasions when legislation in Scotland and England differs for a variety of reasons relating to different values, circumstances or aspirations, but where there is largely agreement on public policy, as there surely is on the environmental impacts to be taken into account, common sense would dictate that words along the lines of Amendment 124A should be built into the Bill.

[Baroness Boycott (CB)]

My Lords, I support Amendments 124 and 127 in the name of the my noble friend Lady Worthington. As always, I return to the issue of food: the Committee on Climate Change reported last week that the public sector serves 1.9 billion meals a year. That is an unbelievably big responsibility and impacts on the environment, our health, how people co-operate socially, what we grow and agriculture. If we cannot have principles about the environment, public good and public health within this public procurement then it is really not fit for purpose because this is, I think, a massive area of concern to everyone in this Room.