Procurement Bill [HL]

Baroness Hayman of Ullock Excerpts

Committee stage
Monday 18th July 2022 Grand Committee

[Baroness Boycott (CB)]

I speak on behalf of my noble friend Lady Worthington, who cannot be here, to support our Amendment 452, which makes transparency provisions, in particular on issues of climate change. I welcome the Minister’s commitment at Second Reading that the Government

“want to deliver the highest possible standards of transparency in public procurement”.—[Official Report, 25/5/22; col. 856.]

While the Bill does not include a general duty of transparency compared with previous procurement rules, which required that contracting authorities act in a transparent manner, the Government have said:

“Transparency will be fundamental to the new regime. Extended transparency requirements and a single digital platform on which procurement data will be published will mean that decisions and processes can be monitored by anybody that wishes to do so.”


The Bill widens the authorities’ duties to publish notices and information on their procurement activities, and the provisions under Clauses 86 and 88 should improve transparency by making such notices available through a specified online system. This is welcome, but there is no substantive information on what exactly is going to be published. Instead, Clause 86 provides for appropriate authorities, through secondary legislation, to make regulations that will set out how notices and information will be published.

The amendment in my name and that of my noble friend Lady Worthington is intended to clarify what the regulations for the publication of notices, documents and information must contain as a minimum, by ensuring that any regulations include provisions around the availability of notices or information and that these are easily accessible.

Open and accessible procurement data will be crucial in the years ahead to enable modelling of the impacts of public contracts on carbon emissions, particularly when it comes to renewal. Spend Network has started to collect procurement data on every public tender and contract in the world and to map some of this impact on a freely available basis, but it has been hampered by a lack of good-quality inputs. Nevertheless, the data available has confirmed that a 20% reduction of emissions at each contract renewal would

“see the UK government’s contracting still emitting 686,000 tonnes of carbon per month by 2030”,

but that

“poor quality data meant that we were only able to evaluate 40% of the data”.

The recent Written Question to the Minister from my noble friend Lady Worthington highlighted the lack of easily accessible data being kept by departments on both contracts and emissions from those contracts. Will the Minister agree to this simple amendment, which would ensure that there is clarity in the legislation about transparency and accessibility, especially in relation to carbon?

While I am on my feet and we are discussing transparency in contracts, I would like to ask the Minister something that I was asked at the weekend, about the £360 million Palantir contract to manage NHS data. I was contacted by a very worried local NHS manager, who says that a list of 300 redundancies has already been drawn up in the NHS digital department and that this contract with Palantir—a second person has now left the NHS to work for Palantir—is a “done and dusted deal”. I would be incredibly happy if the Minister could give me a small reassurance that I could pass on to my friend, because obviously everyone in his department is really anxious.

[Baroness Hayman of Ullock (Lab)]

My Lords, I start by thanking the Minister for introducing all the government amendments in this group. Again, it is very helpful, as there are quite a few of them, so we appreciate that.

I will speak to my four amendments and offer my support for the others in this group, so ably introduced by noble Lords. My first three are Amendments 455, 458 and 459A, which are on digital registers and digital information. I will speak to those first. Amendment 455 would require the establishment of a digital register of all public procurement for all notices; Amendment 458 would allow the creation of a digital registration system for suppliers; and Amendment 459A would require a contracting authority to publish required procurement documents on a single digital platform. The intended purpose is to allow public spending priorities and the performance of the procurement system to be understood by stakeholders, and therefore allow authorities to plan and deliver procurement in a strategic manner.

The Green Paper Transforming Public Procurement said that a

“lack of standardisation, transparency and interoperability is preventing the UK from harnessing the opportunities that open, common and shared data could bring”,

and that

“a clear digital procurement strategy focused on transparency results in greater participation and increased value for money driven by competition.”

The Cabinet Office Declaration on Government Reform policy paper, published in June last year, also supports this when it says:

“We must do better at making our data available to all so that we can be more effectively held to account.”


It also includes an action to:

“Ensure all data is as open as possible to public and third parties.”


I am sure we would all support that.

We were therefore very pleased to see this ambition reiterated by the Minister at Second Reading when he said:

“I acknowledge that transparency has been a key ask for the House. The House expects that transparency will be improved. We believe that the Bill does this.”—[Official Report, 25/5/22; col. 926.]


We have learned from today’s debate that real transparency is incredibly important to noble Lords, as this Bill progresses. We therefore believe that it is essential to put the Green Paper ambitions into the Bill, both to deliver on this promise effectively and to make sure that it cannot be rolled back or diluted, which is one of our concerns. An unambiguous statement of this commitment would help secure adequate resources, and I am sure the Minister would agree with me on the importance of this.

Looking at Clause 88, on information relating to a procurement, in Part 8 of the Bill—there are number of subsections, so I will not read it all out—I just want to check that I am reading its implications correctly. If I understand it, it creates powers to have a single supplier portal right across government. If this is correct, it is extremely positive, but I would like clarification from the Minister that that is exactly the intention of this clause. If that is the case, it would save a huge amount of time across government and across business, allowing companies to register and update their credentials once to do business with UK government. It would also allow them to establish unique IDs for contracting authorities and, we hope, then move forward in a much more practical and efficient way, which is what we would all like to see. The purpose of my Amendment 455 is to allow the Bill and the Government to articulate this objective much more clearly. I would be grateful if the Minister can clarify this.

The other vital part of the Government’s data ambitions—to bring together all the notices and data around procurement into a single source—should also have the same elevation in the Bill. It is really important that the information can then be fed back into a variety of user-friendly ways to local authorities, major procurement companies and others, so that we can generate data-driven insights and properly track the performance of different companies. Because there is spend, there is live, ongoing and updated data, which will be extremely helpful. There seems to be the ambition behind the UK’s adoption and approval of the open contracting data standard, about which it would again be helpful to get clarification. The purpose of my three amendments on data is to gain clearer provisions in this regard in the Bill, which will be easier to understand for anyone working in the procurement industry or wanting to gain a contract.

The noble Lord, Lord Clement-Jones, also has a number of amendments on data, and I thank him for his support for one of my amendments. I know he will speak to his amendments, but I think we are in the same place on all this. I am extremely grateful for his amendments and will listen carefully to what he has to say when he introduces them.

I turn to my other amendment, Amendment 459, and thank the noble Baroness, Lady Bennett of Manor Castle, for her support for it. Its purpose is to require each ministerial department to calculate the estimated carbon emissions from public contracts entered into and to lay an annual report on this before Parliament. The amendment seeks to look at the impact of the procurement regime from an emissions perspective. Given the weather at the moment, climate change is on everyone’s mind, so I hope the Minister and the Government will think carefully about the areas where we are looking to improve the impact of the Procurement Bill—on climate change, emissions, net zero and so forth.

There is a National Audit Office report on public sector emissions, which is extremely worth looking at. I urge the Minister to have a close look at it to see whether there is any way that its recommendations can also be part of what we are trying to achieve through the Procurement Bill. The main issue is around reporting: although many companies will do it voluntarily, many others do not report at all, so there is no balance in the information that we have. For example, there are no mandatory emissions measurements or reporting requirements for the public sector as a whole. The wider public sector includes local authorities, schools and hospitals, all of which may well have high carbon emissions. Peers for the Planet published a very good report on local authorities and net zero, in which it noted that there was little consistency in local government reporting of emissions. I understand that a lot of this concerns BEIS, but the Procurement Bill provides us with an opportunity to look at whether this is something that would have a positive impact on driving down emissions.

This concludes the introduction of my amendments and I will turn now to those of other noble Lords. Many noble Lords spoke in support of the different amendments on the publication of notices and the concerns around freedom of information. My noble friend Lord Hunt of Kings Heath, in particular, made an extremely important speech about his two amendments. He said again that it is a welcome ambition to simplify what we are trying to achieve here with procurement. As I have said, any noble Lord who worked on OJEU will be very grateful for simplification. As was debated last week, it is terribly important that we do not make things more difficult for SMEs, charities, voluntary organisations and, as my noble friend Lord Mendelsohn said, for freelancers, who were often forgotten when we debated this Bill previously. Transparency is clearly very important when looking at those kinds of contracts.

--- Later in debate ---

[Lord Scriven (LD)]

Well, the healthiest on the Procurement Bill and constitutional affairs Front-Bench team. I thank the Minister, I think, for passing on his cold of last week to me.

My noble friends’ Amendment 105 is also a probing amendment. Clause 19 uses the word “appropriate”, and this amendment is to see

“under what circumstances it may be considered ‘appropriate’ not to undergo an open tendering procedure.”

There are no criteria or guidelines about what may be appropriate. This is just a probing amendment to see if the Minister can explain why such a wide-ranging word as “appropriate” is in the clause. Who will decide whether it is appropriate, and what guidelines or criteria would the Government expect the authority to seek in determining whether the open tendering procedure should not go ahead?

With Amendment 96, yet again, the noble Baroness, Lady Noakes, raises some important points in Committee by changing just one word. I particularly point to what she described as the “Alice in Wonderland world”, in which you can be debarred from one part of tendering but not have been given a contract—or the other way round. The noble Baroness’s suggestion to include exclusion from the tendering process in the Bill makes eminent sense or we will be in the position in which people could, by law, tender but would be debarred from getting the contract, even if theirs was potentially the best tender around.

With those comments, I feel that, particularly on Amendment 105 in the name of my noble friends, some clear guidance from the Dispatch Box would be welcome.

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the noble Baroness, Lady Noakes, for introducing her two amendments. As ever during Committee on this Bill, she has spotted where the nonsense lies and where problems could quite easily be resolved, if her wise words are listened and adhered to.

On her Amendment 96, I know my dear and noble friend Lord Coaker is very disappointed not to be having the must/may discussion with her today and that it has fallen to me, but it is an important point. Different terminology in different parts of the Bill impacts on what is expected. What does that mean? As the noble Baroness clearly demonstrated, if you follow that logically—all the way down the rabbit hole, to carry on the metaphor—it does not make sense any more. I think she has picked up something that could be sorted out straightforwardly and I would be interested to see whether the Minister agrees.

The noble Baroness’s second amendment, Amendment 107, on the lack of assessment and what is in the Explanatory Notes not being sufficient for what we need to know to feel secure about this clause, is again a simple amendment that makes a lot of sense. To me, it strengthens and provides clarity to the Bill. The noble Baroness made the critical point that these kinds of things have a different impact on multinationals from small businesses and, as we have said previously, charities and voluntary organisations. This is important.

The noble Lord, Lord Scriven, ably introduced the amendments in the name of the noble Lord, Lord Wallace. I hope the Liberal Democrat Front Bench manages to recover before we come back in September, but I thank the noble Lord for that. They are about terminology —what the words mean and what the impact of that terminology is on the Bill. As the noble Lord pointed out, there are no guidelines and criteria, and nothing specified about what “appropriate” means, nor on whose shoulders it falls to interpret what it means and whether that could be open to challenge. Again, they are small but important amendments and we support them.

There are a number of government amendments in this group. I have read through them and they seem straightforward, but I shall be interested to hear the Minister’s introduction.

[Baroness Scott of Bybrook (Con)]

My Lords, I seek to deal with amendments related to competitive procedures. I will start with the government amendments. Amendment 98 ensures that contracting authorities can choose not to assess tenders that do not comply with the procedure. This is different from improper behaviour in a procurement resulting in exclusion, which is addressed in Clause 30. As such, this amendment gives contracting authorities the discretion to exclude for procedural breaches that do not meet the higher threshold for improper behaviour and to ignore an insignificant breach, depending on the context. Government Amendments 99 and 103 are consequential to Amendment 98.

Turning to the Clause 19 amendments, Amendment 106 would replace

“a competitive tendering procedure other than an open procedure”

with “a competitive flexible procedure”, making it much easier to understand the two types of competitive tendering procedure. There are many consequential amendments to update this terminology, including Amendments 108, 109, 115, 132, 133, 155, 156, 157, 161, 188, 189, 192, 195, 199, 202, 213, 221 and 289.