Procurement Bill [HL]

Debate between Baroness Brinton and Lord Aberdare

Committee stage
Wednesday 13th July 2022 Grand Committee

[Baroness Brinton (LD) [V]]

My Lords, I start with my usual apology that the rules for remote contributors mean that I will be commenting on amendments that have not yet been spoken to by their authors. I have one amendment in this group, Amendment 528C, which has been signed by my noble friend Lord Scriven, to which I will return.

I support Amendments 101A, 528A and 528B which set out the arrangements for procurement, taking into consideration low-income countries and ask that particularly during a public health emergency, not only a pandemic, they should meet certain criteria that are higher than usual.

The World Health Organization’s report, The COVID-19 Pandemic: Lessons Learned for the WHO European Region, recommends as its fifth area for action:

“Strengthening procurement systems, supply chains, operational support and logistics”.


The reason why that it is one of the key recommendations is, I am afraid, the chaos that happened in the early months of the pandemic and the frankly shameful behaviour of some of the wealthy countries which disregarded the fact that Covid was a worldwide virus and that all countries needed access to key goods and services to deal with it—whether PPE, kit for testing, or vaccines as they came on stream.

This Committee is not the place to go into the detail of that; I suspect that most Members of your Lordships’ House will have it fresh in their memories from the last two years. However, I hope that the UK pandemic inquiry will look at our Government’s behaviour, including the taking of vaccines from the vaccine fund COVAX, which was designed specifically to support countries that could not afford either the development or the cost of vaccines in those early days, and, in particular, the blocking of a TRIPS waiver for intellectual property, which prevented low-income countries manufacturing their own vaccines. These amendments would ensure that any future Government must reflect carefully on their role in helping low-income countries have fair access to the tools that they need to manage any major future health emergency.

Amendment 528C is a probing amendment that seeks to remove the provisions in Sections 79 and 80 of the Health and Care Act for NHS England to have its procurement rules set by the Secretary of State for Health and Social Care using a statutory instrument. On earlier occasions in Committee, I asked Ministers a series of questions to which I really hope we will receive answers today. Prior to this, each response from the Dispatch Box, in essence, laid out the differences between the arrangements under the Bill and those in Sections 79 and 80 of the Health and Care Act, which we know already. I will not repeat the details of the likely problems that this will cause in the complex interface of what is and is not covered by the Health and Care Act; it certainly is not as clear-cut as the sections would imply. Much more fundamentally, the reason I have tabled this amendment is to try to elicit answers to the two following questions.

First, why should a body such as NHS England, which procures contracts for £70 billion a year of taxpayers’ money, have procurement rules that are not consulted on widely or taken through the same scrutiny available under the legislation process that this Bill—for all its failings and problems—must continue to go through? During the passage of the Health and Care Bill, no Minister seemed to be able to explain why, and the same is true for this Bill. The £70 billion was specifically for NHS England. The total NHS departmental spend on health in 2019-20 was in excess of £160 billion, so I suspect that the real clinical and associated spending is significantly higher than the £70 billion I quoted. It is the Government’s largest budget after social protection—that is, benefits and pensions—yet the Health and Care Act sets out a procurement regime that is much less visible and accountable than that proposed by the Government in this Bill.

Secondly, is it appropriate that procurement arrangement processes for such a large amount of taxpayers’ money should be determined by a Secretary of State using Henry VIII powers? Not only is this process much less transparent, and it cannot hold Ministers to account, but the capacity is there for a future Secretary of State to change the procurement process much more quickly than under the processes of this Bill. It was helpful during the passage of the Health and Care Bill that the Government bowed to the strong report of the Delegated Powers and Regulatory Reform Committee, which said that at the very least it must be upgraded to be subject to an affirmative procedure. But frankly, Members’ suspicions were aroused by the original proposals that it should be subject to a negative procedure.

During the passage of the Health and Care Bill, the noble Earl, Lord Howe, said:

“We are grateful for the input of the Delegated Powers and Regulatory Reform Committee in advising us on this. In summary, these regulations will allow the NHS to procure healthcare services in a way that reflects the reality of those services without unnecessary bureaucracy and with the ultimate goal of providing value for patients, taxpayers and the population in the vital health services they need.”—[Official Report, 3/3/22; col.1028.]


For the last three and a half days, we have been debating in detail unnecessary bureaucracy and the ultimate goal of providing value for taxpayers, clients and the population in the vital public services they need. I am still struggling to understand why the second-largest public spender in this country is able to use this unaccountable and untransparent procedure. I hope that the Minister will specifically explain to the Grand Committee why this route was chosen for the NHS. If the Minister cannot answer this, will he meet those of us who are interested— I have already asked him twice for meetings—so that we can discuss this prior to Report?

[Lord Aberdare (CB)]

My Lords, I have Amendments 120 and 129A in this group. I will also speak to Amendment 119 in the name of the noble Lord, Lord Mendelsohn, and my noble friend Lord Best’s Amendment 131. Perhaps Amendments 119 and 120 should have come up on Monday, when we were discussing SMEs.

Amendment 120 seeks to address the barriers faced by smaller providers and charities through specifications that disqualify or discourage them from bidding. These typically stem from process taking precedent over purpose, or from narrow or mistaken interpretations of procurement rules. Lloyds Bank Foundation research has found numerous examples of disproportionate thresholds being imposed—some of which we heard about on Monday—including requiring suppliers to demonstrate income unrelated to the size of the contract being tendered for, requiring evidence of having previously delivered contracts much larger than the one tendered for, or unreasonable insurance requirements.

Excessive requirements at the pre-qualification questionnaire—PQQ—and invitation to tender—ITT—stages can also act as significant barriers. To cite one example: a youth association applying to be added to a framework of suppliers linked to the troubled families initiative had to complete a 49-page PQQ and 99-page full tender. Greater clarity is needed about what a proportionate approach looks like.

My Amendment 120, which the noble Lord, Lord Mendelsohn, has also signed, seeks to add a requirement for contracting authorities to include consideration of the impact of conditions on the ability of a broad range of suppliers, including smaller businesses and charities, to access public contracts as part of their assessment of proportionality. Without this, there is a danger that smaller providers will continue to be disqualified on technicalities or by arbitrary barriers, even where they are well placed to deliver the service or are already doing so.

I have also added my name to Amendment 119 from the noble Lord, Lord Mendelsohn, which would allow for conditions requiring suppliers who seek to participate in a contract to be

“signatories of good standing on the Prompt Payment Code”.

All too often, we hear from small businesses of the Prompt Payment Code being honoured more in the breach than the observance, even by businesses that have signed up to it. Making adherence to the code allowable as a condition of participation seems an eminently sensible way of giving it stronger teeth and I hope that the Minister, who has been so responsive in his willingness to look seriously at many of the good ideas proposed by members of this Committee, will look at this one as well.

Amendment 129A to Clause 22, which is in my name, seeks to ensure that the advantages of flexibility in setting award criteria are not undermined by post-award negotiations or other price and cost uncertainties which could affect, or even invalidate, value-for-money considerations used in awarding contracts. To avoid this, the amendment requires the contract to include

“an objective mechanism for determining price and cost after contract award and before the goods, services or works are supplied.”

Only through such a mechanism for confirming value for money being put in place at the time of a contract’s award is it possible to secure maximum supplier contributions to improving value and reducing risks, including through the early appointment of specialists. This is an aspect of early supply chain involvement and having an objective post-award process to achieve the benefits associated with it.

To give an example, those benefits were illustrated by the innovations, cost savings, reduced carbon emissions and local business opportunities agreed by the Ministry of Justice with the supplier and specialists engaged on its Five Wells prison construction project after their appointment and before commencement of work on site; this project featured as a case study in the Construction Playbook. So I hope that the Minister will consider this amendment carefully as a way of ensuring that value for money commitments are met in the procurement of any goods, services or works.

Procurement Bill [HL]

Debate between Baroness Brinton and Lord Aberdare

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.

Schools Bill [HL]

Debate between Baroness Brinton and Lord Aberdare

Committee stage
Monday 27th June 2022 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, I declare my interest as a vice-president of the Local Government Association. Amendments 156 and 171 address the issue of school land and buildings that may not be safe. As the noble Baroness, Lady Chapman, outlined, Amendment 156 asks for condition reports on school buildings and land within a year of the Bill being passed. As we have heard from her, there are real worries that too many schools have major condition problems because school budgets have made it impossible to keep buildings safe and there is no money from central government.

I am particularly delighted that the noble Baroness referred to the Welsh 21st Century Schools plan. Kirsty Williams, while Lib Dem Welsh Education Secretary in the Senedd working in coalition with Labour, led with local government on this. It just shows what can be achieved when there is a will to do it. However, I am afraid that England at the moment is a different story. The Treasury is not providing funds for major structural repairs and rebuilds even when there is danger for children and staff.

One such school is Tiverton High School, which is in need of a multi-million-pound overhaul. The Environment Agency says that it is not a safe place for children, with staff having to deal with rain pouring into leaking classrooms; worse, there have been a number of incidents involving asbestos being exposed and then damaged, which is dangerous to both pupils and staff. Even worse, the school sits on a flood plain and requires flood protection. The school was promised a complete rebuild in 2009. It got planning permission and got detailed designs ready over the next four years, but the money never followed. It is vital that we know the condition of school land and buildings across England, and Amendment 171 says that, where a building is unsafe, the Secretary of State should take responsibility for it.

Under Part 1 of this Bill, the school—currently a foundation school—would become an academy. I ask the Minister: does the Secretary of State become responsible for the condition and fabric of school building and land under the extensive powers listed in Part 1 or is the amendment from the noble Baroness, Lady Berridge, necessary? It seems extraordinary that children are required to go to school in a building which other bodies have said is unsafe, the governors and local authority do not have resources to deal with, and central government just refuses to provide the funding for.

Amendment 167 in the name of the noble Lord, Lord Moynihan, calls for the Secretary of State to ensure that all schools are provided with defibrillators, in school and in sports facilities, which I support. Oliver King, who was 12, died of sudden arrhythmic death syndrome, a condition which kills 12 young people under 35 every week. The Oliver King Foundation has been campaigning for a defibrillator in every school. Last September the Secretary of State for Education announced that every school should have a defibrillator.

In an Oral Question in your Lordships’ House on 15 June, the Health Minister said in response to a question from me:

“while we require defibrillators to be purchased when a school is refurbished or built, one of the things we are looking at is how we can retrofit this policy. We are talking to different charity partners about the most appropriate way to do this. What we have to recognise is that it is not just the state that can do this; there are many civil society organisations and local charities that are willing to step up and be partners with us, and we are talking to all of them.”—[Official Report, 15/6/22; col. 1582.]

While I know that the DfE has been working with the department for health and the NHS to make this happen, including schools being able to purchase defibrillators via the DHSC at an advantageous price, only a few thousand appear to have been purchased so far. The Health Minister is clearly expecting schools to find benefactors to fund life-saving defibrillators at a time when there are many other pressures on school budgets. How do the Government plan to enable all 22,000 schools to be given defibrillators now, not just when their school is rebuilt?

It looks as if we may need to support the amendment in front of us today about defibrillators. This is urgent and I hope that the Minister will give it some good consideration.

[Lord Aberdare (CB)]

My Lords, I speak in favour of Amendment 167 in this group, which is in the name of the noble Lord, Lord Moynihan. He was all ready to move it late last Wednesday evening with my support, but is unable to do so today as he has to be in Wales for important meetings as chair of governors at the Haberdashers’ Monmouth Schools. I am pleased to speak to the amendment and grateful to my noble friend Lady Grey-Thompson for her support, and to the noble Baroness, Lady Brinton, for what she has just said.

We have previously discussed a number of issues that should be mandatory parts of the curriculum. One of these is first aid training. As well as that, every school should have access to defibrillators. I use the plural intentionally, as does this amendment, because one may not be enough. The Haberdashers’ Monmouth Schools, for example, have five defibrillators, one of which, close to the cricket nets in the pavilion, has been used to save a life at a school sporting event.

There are some 60,000 sudden out-of-hospital cardiac arrests each year in the UK. Survival depends on prompt action such as CPR or defibrillation. The chances of survival decrease by 10% with every minute that passes without such action and, in fact, only one person in 10 survives.

Of course, the great majority of such cardiac arrests affect older people, most often in their homes or workplaces, but a significant minority of cases are younger people, specifically those who are fitter and more active. The noble Baroness, Lady Brinton, cited the fact that sudden arrhythmic death syndrome kills 12 young people under 35 every week. Young athletes are three times as likely to suffer cardiac arrests as non-athletes, so access to defibrillators is important not just in a school’s main learning areas but equally, if not more importantly, in its sports facilities.

In my recent Question on defibrillators, I mentioned that devices are beginning to appear on the market that are much smaller, lighter and cheaper than existing models—up to a 10th of the size, weight and price. A recent parliamentary drop-in featured a personal defibrillator small enough to fit in my jacket pocket, which is expected to sell for about £200. I know that exhibits are frowned on, but I actually have a training version of such a defibrillator in my jacket pocket.

Developments like this will open up new opportunities for increasing access to defibrillators and making them much more easily available and locatable in schools, workplaces and homes—indeed, wherever there are risks of cardiac arrest and where defibrillators should be easily accessible, even in sports coaches’ kit bags or in private homes.

Of course, there is limited value in increasing access to defibrillators if people are not familiar with when and how to use them. This is an area where the UK lags behind many other countries. While our overall survival rate is only one in 10—and in some parts of the UK it is a great deal lower even than that—in Denmark, where training in CPR is mandatory in schools and for anyone applying for a driving licence, the survival rate tripled within five years. Italy has introduced new laws mandating defibrillators in public buildings, on transport, at sporting events and in schools, and has a cardiac arrest awareness day every October. I will mention one other example, in the USA: Seattle has increased its survival rate to 62% through a city-wide training programme. There are many other examples to show that first aid training and access to defibrillators actually save significant numbers of lives.

Training, both in basic first aid techniques, including the use the defibrillators, and in recognising the symptoms of sudden cardiac arrest, can easily be done in schools. It takes only a few hours, is readily available at a reasonable cost from organisations such as the British Heart Foundation, British Red Cross, Resuscitation Council UK, St John Ambulance and St Andrew’s First Aid in Scotland, is relatively inexpensive and is practical, enjoyable and confidence building for young people—and indeed older ones, as I can testify from having had such training here in Parliament some years ago when there was a first aid APPG. Incidentally, the intranet lists 27 locations where there are defibrillators on the Parliamentary Estate; it also says that

“Staff should familiarise themselves with where the Defibrillators are located.”


I shall not speculate on how many of us could locate one with confidence.

Amendment 167, from the noble Lord, Lord Moynihan, represents an important first step towards reducing the number of deaths from sudden cardiac arrests in and around schools, including at their sports facilities. Defibrillators are already required in all new or refurbished schools; it makes no sense that they should not be a mandatory part of every school’s first aid equipment. Indeed, the noble Lord, Lord, Moynihan, would argue that they should be as common in public places as fire extinguishers. I hope that the Minister will accept this amendment, or at least spell out firm plans to ensure that defibrillators will become mandatory for all schools—obviously with support for how they can afford them. Failing that, this is an issue that I, the noble Lord, Lord Moynihan, and perhaps others may well wish to pursue further on Report.