Procurement Bill [HL]

Baroness Noakes Excerpts

Committee stage
Monday 11th July 2022 Grand Committee

Moved by

[Baroness Noakes]

30: Clause 8, page 6, line 28, at end insert “and which are health or social care services supplied for benefit of individuals”
Member’s explanatory statement
This amendment probes why light touch contracts are not more narrowly defined in Clause 8.

[Baroness Noakes (Con)]

My Lords, I shall also speak to Amendment 207 in my name. My noble friend Lord Lansley has Amendment 35 in this group but is unable to be with us in Committee this week. At his request, with the leave of the Committee, I shall be speaking to his amendments on both Committee days this week.

At Second Reading, I noted that the definition of light-touch contracts is extremely wide since it concerns the supply of services of any kind, provided that they have been specified by regulations under Clause 8(2). It is my understanding that light-touch contracts are currently for health and social care services—indeed, that is implied by the reference to those services in Clause 8(4)(b). The wide scope given by the lack of restriction in Clause 8(2) means that, notwithstanding the “have regards” in Clause 8(4), it would be possible, for example, for the Government to specify legal services, accountancy services or any other kind of services. The “have regards” are simply not an effective curtailment of the very wide power in Clause 8(2).

My Amendment 30 seeks to confine light-touch contracts to health or social care services provided to individuals, on the basis that, it is my understanding, that is how they are used at the moment. However, if the Government believe that there should be a wider concept than that, they should put that in the Bill. Open-ended regulation-making powers should not be necessary and are not desirable.

My noble friend Lord Lansley’s Amendment 35 would add another “have regard” to Clause 8(4): whether suppliers of light-touch services consist of small and medium-sized enterprises and few larger enterprises. The other three “have regards” seem to be designed to reflect the current scope of light-touch contracts: they do not generally involve overseas suppliers, they are generally for the benefit of individuals and they involve suppliers that are close to service recipients. Another feature of current service provision is the presence of small and medium-sized service providers in both the private sector and the voluntary sector.

If the supplier market features large suppliers, including overseas ones, there really is no good policy reason for the light-touch regime to be applied; the full-fat version of the procurement rules should be in place for them. A light-touch contract should not become a convenient escape from the procurement regime for contracting authorities. They should be focused on the supplier end of the market, where a lighter regime would be appropriate.

Amendment 207 is rather different. It tries to tease out the Government’s intentions for contracts under Clause 33, which covers the reservation of certain light-touch contracts to public sector mutuals. A qualifying public sector mutual is one that has not been awarded a contract in the previous three years, under Clause 33(5). So if I am a public sector mutual and I am awarded a contract on 1 January 2022, that means that I may be excluded from tenders under subsection (2) for the three years until 31 December 2024, and under subsection (3) a contracting authority must exclude me from tenders assessed under Clause 18 until the same date—that is, the end of 2024.

If my earlier contract is for five years, which is the maximum allowed under Clause 33(1), I think that I would not be excludable from retendering when the contract came up for renewal, because the retendering process would almost certainly have started after the end of December 2024. If, however, my initial contract was for three years, I would almost inevitably be excluded from bidding for its renewal because the retendering process would by definition have to start before the end of December 2024.

My amendment proposes changing the period in subsection (5) from three years to five, but that is for probing purposes. I do not understand whether the Government are trying to allow or prohibit public sector mutuals from carrying out consecutive contracts, if indeed they were awarded them under a competition. It seems bizarre that a shorter contract could prohibit the public sector mutual from retendering while a long one would not.

In addition, I am less than clear on how contract award and commencement dates are supposed to interact, given that a contract could be awarded some considerable time before it is intended to commence. I know that my noble friend the Minister has Amendment 206 to Clause 33, which is not in this group and would slightly alter its wording, but I do not think that that will answer the basic question that I have posed. I beg to move.

[The Deputy Chairman of Committees (Lord Haskel) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.

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[Baroness Scott of Bybrook (Con)]

My Lords, it is up to the organisation that is procuring. That is exactly what we are saying; we are freeing up that procurement process.

[Baroness Noakes (Con)]

My Lords, I am not sure that we have advanced very much on either of the clauses. I thank all noble Lords who have taken part in the debate, particularly the noble Baroness, Lady Brinton, who raised a number of good points about the interaction with NHS contracts, which I had simply not appreciated, not having followed the most recent NHS legislation. I agree with her that the interaction of the two codes is likely to be confusing to all those who come across it and, with respect, I do not think that my noble friend made that any clearer in her answer. Nevertheless, we will come to that later on in the Bill and I am sure that it will be teased out again.

On Clause 8, the main thrust of my amendments was to try to find out what was likely to be covered under light-touch contracts. I am still no clearer at all. I have heard that the “have regards” in subsection (4) are appropriate as drafted but have not heard any argumentation as to why. I have heard quite a lot about how it is really up to the contracting authority to decide what it wants to take account of, and that whether it is good or bad to have overseas suppliers is up to the contracting authority.

I am quite unclear what the Government are intending by this light-touch contract regime. I have no idea at all what they are going to allow to be specified under the regulations, which is what I was trying to tease out by saying that it should be confined to health and social care. That was a placeholder to say, “Tell me what you’re going to put in them”—but I am afraid my noble friend did not tell me what she is going to put in them.

So I am left probably slightly less satisfied with Clause 8 than I was when I tabled my amendments to probe what was in it. I will of course consider very carefully what the Minister has said between now and Report, and we may have further conversations about it, but I politely suggest to her that the Government appear to be in a bit of muddle about what they are expecting from light-touch contracts. Are they simply saying, “We’ll create this power and let contracting authorities tell us what they want to do, and then we’ll have some regulations and do what we like with it”—because that is what the clause allows—or are they intending to restrict the scope in some way and, if so, in what way? That is all still waiting to be teased out, in addition to the issues raised about interaction with the NHS.

I turn to my Amendment 207, which is in connection with Clause 33. I think I heard the Minister say that the Government’s intention was to prevent repeated contracts. That is not necessarily what this measure achieves, except that it tends to prevent a repeated contract if it is of shorter duration. If the initial contract is for three years, they almost certainly do not have a time window to be involved in tendering for a repeat of three years, because of the three-year prohibition—whereas, if they take a contract for five years, that three-year prohibition on retendering will have expired before the retendering comes up again. My noble friend simply did not answer that question, so again I am no clearer about what the Government are really trying to do. Are they trying to stop repeated contracts or allow them? They are allowing them for longer contracts but not for others, which does not seem to make sense.

We have all summer and quite possibly a lot of the autumn between Committee and Report to consider what we need to probe further on Report, but I hope the Minister will be taking back the Hansard of this discussion to her officials and looking at the points that have been raised but not dealt with in her response. However, this is Committee, so I beg leave to withdraw the amendment.

Amendment 30 withdrawn.

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[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

Lady Brinton, we believe that you are speaking to the wrong group at the moment. Is that correct? I am not sure. We are just clarifying.

[Baroness Noakes (Con)]

It is the right group, but I have not introduced the amendment. The noble Baroness, Lady Brinton, is speaking before all the amendments have been spoken to.

[The Deputy Chairman of Committees (Baroness Watkins of Tavistock) (CB)]

The rules are—I can see the problem—that remote speakers speak before the other amendments. Lady Brinton, it is quite difficult in that the amendment has not yet been spoken to; would you rather proceed, as per the current regulation, or wait and speak at the end of the group?

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It is not just a political consensus; businesses are also backing social value. The Confederation of British Industry, the Federation of Small Businesses, Social Enterprise UK and many other business groups are championing greater use of social value in public procurement. Charity representatives such as the NCVO are also calling for greater use of this. The reason there is a consensus behind social value is because of the huge opportunities that exist—

[Baroness Noakes (Con)]

I am sorry to interrupt, but I am struggling a little as to which amendment the noble Baroness is speaking to. Amendment 75B, which deals with market stewardship, is in this group, but Amendment 75A, which is about social value, is not.

[Baroness Thornton (Lab)]

I beg your pardon. I was trying to give the basis as to why this amendment is down and then the other amendments that will be in the groups following this one, but I take the noble Baroness’s point and will just address this amendment.

Social enterprises report higher levels of staff engagement. The Bill does not place any duty on contracting authorities to consider the impact of their decisions on the range of providers, such as social enterprises or SMEs, but there is a risk in ignoring these organisations. There may not be the providers that the public sector needs for the future and this may reduce innovation in our supply chains. That is what this amendment addresses.

[Baroness Noakes (Con)]

My Lords, I have added my name to Amendments 38, 50, 97 and 100 in the name of my noble friend Lady Neville-Rolfe and, as she has already said, she has added her name to Amendment 534.

I will come to that in a moment, but I start with Amendment 86 in the name of my noble friend Lord Lansley. This returns to the question of preliminary market engagement and fostering the involvement of SMEs about which my noble friend spoke on our last Committee day in relation to his Amendment 88. Clause 15(1)(f) makes building capacity among suppliers a permitted purpose for preliminary market engagement. My noble friend’s amendment adds some words of emphasis so that capacity building should be particularly for small and medium-sized enterprises.

I know that noble Lords need no reminding of the importance of SMEs to the UK economy. They account for around 60% of employment and over half of turnover in the UK. Not all small businesses achieve scale and not all want to, but most large and successful businesses were small businesses once. We have a responsibility to ensure that SMEs are given every opportunity to thrive and grow. That is why we should be looking at this Bill on the important area of public procurement and its role in the economy and considering the way that can be used to foster SMEs.

SMEs find engaging with public procurement daunting. They simply do not have the time and resources to get involved in complex tenders, let alone things like dynamic markets. It has to be in the interests of both the individual contracting authorities and the economy as a whole to foster as much competition as possible and to assist SMEs in growing their businesses. Building capacity among SMEs is a good thing to do and this Bill should recognise that. It may occasionally be important to build capacity among larger businesses and my noble friend’s amendment does not preclude this. But large businesses have the kind of resources that make participating in public procurements pretty straightforward. SMEs, not large businesses, should be the focus of policy in this area.

My noble friend Lady Neville-Rolfe’s Amendments 97 and 100 also recognise that getting involved in public sector procurement is hard for SMEs. The complexity of procurement processes makes it quite likely that an SME might not satisfy all the participation criteria and even more likely that they will mess up on an aspect of the procedural requirements. They need to be cut some slack, which is what my noble friend’s amendments would do.

I am, as my noble friend knows, less convinced by her Amendments 290 and 295 because there are some serious issues in Schedules 6 and 7 which rightly debar businesses from public tenders. On the other hand, Schedules 6 and 7 are very heavy-handed and there may well be a case for further discretion to allow some of the matters in those schedules to be disregarded in the case of SMEs.

I now come to Amendment 534 to which the noble Baroness, Lady Brinton, spoke so eloquently earlier. It is rather different from the other amendments in this group because it requires a report every year. It is relevant to SMEs because the first area of the report is about how procurement rules have impacted the award of contracts to SMEs. I think we are agreed that we want to see awards of contracts to SMEs growing, and that means making it easier to include SMEs in the process and helping them to win.

There have been some changes to the previous EU rules on which this Bill is largely based which could make it easier for SMEs, but I suspect that the overwhelming effect of the procurement rules as we have them in this complex Bill and the secondary legislation that will follow will continue to deter SMEs from participating fully in public procurement. We really ought to be keeping this matter under review. The noble Baroness, Lady Brinton, raised the issue of whether the health procurement rules are covered. I drafted the amendment with the intention that it should cover health, but I recognise that this is a very complex area and will need to be teased out later in Committee.

A second area covered by my suggested report is whether there is scope to simplify the rules while remaining consistent with the procurement objectives set out in Clause 11. This will also be relevant to SMEs because I believe the complexity of the public procurement code is a major barrier to entry for small and medium-sized businesses. I am sure that large businesses, large tenderers, are quite comfortable with having barriers to entry for small and medium-sized entities, but government and Parliament should not be comfortable with that, and we should at least be striving for greater simplicity and keeping it under regular review.

[Lord Wigley (PC)]

My Lords, I am delighted to follow the noble Baroness. I support Amendment 38 moved by the noble Baroness, Lady Neville-Rolfe, and support very strongly the points that she and, more recently, the noble Baroness, Lady Noakes, have made. They relate to the pressing need to ensure that the burden on small businesses tendering for public contracts is addressed. This issue has arisen under other amendments, and I have no doubt that we need to get this nailed one way or another on Report. It is an important question.

We all draw on our experience. My experience, immediately before coming to the House of Lords after I had left elected politics, was when I chaired the board of Bangor University’s Bangor Business School. It related to the small business sector. These issues arose time after time. Some colleagues may be aware that way back, before entering full-time politics, I was involved in the manufacturing industry. I had two incarnations, the first of which was with large supernational companies, Ford, Mars and Hoover, when I was financial controller. Although those three corporations were not generally involved in public sector contracting, their approach to any question of contractual relationships was highly professional with relevant legal advice in-house and with the resources to buy in specialist advice when needed.

My second incarnation, which I undertook as a serving MP in the 1980s, was to chair a small company from its creation to when, after 11 years, it merged with a larger American-owned company to form a significant new entity employing 200 people at Llanberis in my constituency. We built—the hard way—the acorn from which that grew, raising our own capital locally and starting up by employing just one person full-time, an engineer to build automated diagnostic equipment for the medical sector.

In competing for contracts, we had to beat competitors that were much larger and with far greater resources and in-house expertise. A small company such as ours had a serious uphill struggle to compete on anything like a level playing field. We did so by being fleet of foot, resilient and flexible and by engaging proactively with potential customers. But it is unrealistic to expect SMEs to be in a position to compete on a level playing field with suppliers which have professional resources in depth. The danger is that such SMEs will be scared away from tendering for public sector contracts where the bureaucratic imposition is totally unreasonable for such small-scale operators.

In this context, the amendment is particularly relevant. If our company had not succeeded with the early contracts, we would not have grown to employ some 50 people, as we did at the point when the merger took place. Had we fallen by the wayside in that highly competitive situation, we would not now have the Siemens company that took over our successful company now employing more than 400 people at Llanberis, and with a further expansion a real possibility soon.

I support these amendments because I feel that there needs to be some mechanism written into the Bill to counterbalance the inevitable bureaucratic safety net which public sector bodies build with their procurement procedures. Providing some lower level of bureaucratic imposition on SMEs could make the difference between those companies, on the one hand, being suffocated out of the competitive arena by impositions that they cannot handle and, on the other hand, securing contracts which enable them, in the fullness of time, to grow, given the impact that that might have on our economy.

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[Baroness Worthington (CB)]

My Lords, I rise to speak to Amendments 49 and 58 in this group referring to Clause 11 on procurement objectives. I am very grateful for the support of the noble Baronesses, Lady Verma, Lady Young of Old Scone and Lady Parminter, on these amendments.

We have just had a very interesting debate about the need to support small and medium-sized businesses as a more explicit goal within the Bill. I am here on this group of amendments to make the case for more explicit support for future generations. We have a climate crisis on our hands. We are potentially facing temperatures of 43 degrees this weekend. This is not a pleasant situation to be in; it is going to cause people to die. This is not something we should turn away from, and we must future-proof every single piece of legislation that passes through the House during our watch. This Bill offers an opportunity for us to do just that. The Government have not introduced anything in the Bill that goes beyond guidance other than simply the words “public benefit”. This needs to be given much more clarity, and my amendments seek to do that.

It was stated at Second Reading, and I apologise for being unable to attend it, that we need to improve the existing drafting. Therefore, I am looking forward to hearing from the Minister and, I hope, to meeting the Minister as I have to echo the words of the noble Lord, Lord Hunt. It feels that there is a huge amount of cross-party support for being clearer in this Bill about our intentions and that somehow or other we need to see something more explicit in the Bill, so a meeting on this topic would be most welcome.

Amendment 49 seeks to add more specific targets and a list of matters that the contracting authority must have to regard to including the importance of contributing to targets on our carbon budgets, the natural environment, air quality and other matters. I do not think anybody here is wedded to precise wording, and a number of noble Lords have come forward with different wordings in this group. Obviously, this is not an amendment I would seek to make final, but there must be a form of wording we could all agree on.

We have talked at length about the opportunity the £300 billion per year spent on government procurement offers in terms of driving forward the agenda we wish to see and increasing Britain’s productivity, innovation and the diversity of the companies able to engage in the transition we need to see. Business as usual is no longer tenable. We need to drive change, and we know that procurement is a hugely important lever for doing that.

I asked some questions about precisely how much procurement is responsible for driving global carbon emissions, but I am told that that information cannot be given, so we have no way of knowing how well aligned government policy is to the achievement of these broader goal, which is regrettable. We want to see more clarity in the Bill so that we can, over time, know whether procurement is delivering on these multiple goals.

I am sure there will be responses from the Minister that call into question the sense of these amendments and suggest that somehow it would distort the hierarchy. I reassure the Minister that that is not what we are seeking to do. We are not trying to tie the hands but are simply trying to provide the clarity and direction for such an important lever. I am sure we will be told that the next clause on the national procurement policy statement should be relied upon to deliver this clarity. Yet—and we will debate this—there is not a requirement on the Government to produce a statement; it is simply a “may”. Also, there is no fixed timetable I can see about when that will be produced so, really, we have nothing. There are no reassurances at all that this very poorly defined concept of public benefit will be given more flesh and more detail.

There is a precedent for putting something in the Bill. I highlight Section 9 of the Health and Care Act 2022, on which this amendment is modelled, which amended the National Health Service Act 2006 to give similar duties to the NHS to have regard to climate change including in relation to procurement, so it is not incoherent or without precedent to put this in the Bill. It would be more consistent to have it in legislation. If we do not do it, people will say that it was done in the NHS Act and ask why it was not done in the broader framework Bill that came subsequently. There is well-established similar terminology in the Financial Services Act 2001 and the Skills and Post-16 Education Act 2022, so we must be consistent about the future-proofing of Bills to ensure that we are sending the right signals and bringing about this transition.

I hope I have explained why I think this approach should be taken. I highlight that public benefit being undefined is a problem, which brings me to Amendment 58. Of course it is legitimate for a Government not to seek to define every word in legislation, and some legislation can be unambiguously understood when the words have the ordinary meaning that you would find in a dictionary. The trouble with not defining a term that needs to be understood by all and for that meaning to be as consistently understood as it can be is that it will introduce a level of subjectivity and a lack of clarity. In a search through existing legislation, I have found no use or definition of public benefit, except in relation to charities law, but that cannot easily be read across into procurement decisions. Amendment 58 seeks to remedy that and to define it more clearly. It would include local priority outcomes as well as national ones.

I am sure the Minister will say that the understanding of public benefit will evolve over time and therefore a degree of a flexibility is required, but that is why we have selected only the issues which are enduring and which will be playing out of the long term. We have chosen three national and local priorities. Of course, that does not limit other priorities, but these will be enduring outcomes that will be with us for the long haul and will not change. The need to address the issues that we have highlighted here will get only greater. I think this amendment should be supported; I am not particularly wedded to this way of doing it, but there needs to be something in the Bill to provide the clarity that enables us to future-proof it. We need to take the current crisis and the responsibility we carry for future generations seriously in all legislation we consider, and I therefore look forward to the Minister’s response.

[Baroness Noakes (Con)]

My Lords, this group includes my noble friend Lord Lansley’s Amendment 53. Like some of the other amendments in this group, it is defines “public benefit” in Clause 11, which the noble Baroness, Lady Worthington, has just covered in her speech. My noble friend Lord Lansley regards it as important that there is a definition in the Bill. Public benefit is a very elastic term, which is good in some ways because it allows us to future-proof the use of the language for changes in circumstances, but there should be more guidance in the Bill on the kinds of things that are intended to be encompassed by it.

Clause 11 should be the guiding star for procurement professionals and we owe it to them to make it as clear as possible what is expected from them in applying Clause 11 in their work. I think most people would understand that public benefit includes economic and environment benefits and social value, which is included in my noble friend’s definition, but my noble friend is concerned that innovation and levelling up, which he also includes in his definition, should be mentioned explicitly. They are important topics and central to government policy, and they might not be obvious to procurement officials as coming within the term public benefit. Omitting them from the Bill raises questions about how important the Government think they are. The Minister may well say it will all turn up in the national procurement policy statement, but that is not the same thing. If something is important, it can easily bear repetition.

Other amendments in this group—Amendments 58, to which the noble Baroness, Lady Worthington, has spoken, and 59—also seek to define public benefit. They reference innovation but both contain rather long lists. One problem with rather long lists is that they tend to raise questions about what is not included in them, which is why drafting a long list is often a dangerous approach to trying to explain what something means in statute.

Procurement Bill [HL]

Baroness Noakes Excerpts

Committee stage
Wednesday 6th July 2022 Grand Committee

[Lord True (Con)]

In answer to an interesting question in the Chamber yesterday, I implied that my noble friend Lady Wheatcroft had not been present in Committee. I had not noticed that she was here and I personally apologised to her afterwards. But, as my remark lies in Hansard, I thought it appropriate to correct the record. My noble friend Lady Wheatcroft graciously said that she did not expect me to do this, but I think that it is the proper thing to do.

In moving Amendment 10, I will speak to this group of government amendments. Monday was difficult and, on behalf of the Government, I candidly acknowledged the contrition and sympathy that we felt about the number of amendments that were put down. I think that we have arrived at a better place. As noble Lords know, we arranged a briefing for noble Lords on today’s amendments and I am grateful to the officials who gave this at short notice. I hope that noble Lords who were not able to be there have had the chance to consider the supplementary information on the government amendments that was circulated. Officials will be available again tomorrow to provide a technical briefing for your Lordships on the remaining government amendments.

The government amendments in this group refer only to Schedule 2, which lists what is an “exempted contract”. The exemptions are not mutually exclusive and a contract can be an exempted contract if it falls under multiple paragraphs of this schedule. If a contract is exempted, its award and management will not be subject to any of the legislation, unless it is an international organisation procurement, where some obligations apply.

Amendment 10 to Schedule 2 would ensure consistency with similar drafting elsewhere in the Bill. For any of the exemptions in this schedule to apply, the subject of a contract must represent the main purpose and cannot reasonably be supplied under a separate contract. The amendment would add “reasonably” to this description and is consistent with drafting elsewhere in the Bill—for example, on mixed procurements, the duty to consider lots and estimating the value of a contract.

Amendment 11 clarifies the exemptions for vertical arrangements, which arise where a contracting authority enters into an arrangement with an organisation that is connected vertically with it—in other words, with an entity under its control, or what is called a “controlled person” in the legislation. A typical example might be a trading company set up by a local authority to fulfil a specific task, such as carrying out waste treatment and collection for the authority. We briefly discussed this on our first day, when I said that the Government would bring forward further facilitating amendments; I know that the Liberal Democrat Front Bench expressed an interest in that.

Amendment 12 deals with a consequential update to clause formatting following Amendment 11. These amendments to the definition of vertical arrangements have been tabled following some helpful feedback from stakeholders, including the Local Government Association, of which I believe I still may be a vice-president, in which case I should declare an interest. The feedback showed that the drafting did not properly provide for the fact that such arrangements may involve control by more than just one contracting authority. The government amendments therefore ensure that this exemption will continue to apply where there is joint control of the controlled person, as it does now.

Amendment 13 has two parts. The first part—the inclusion of new sub-paragraph (5)—is a result of the amendment to provide for joint control. It ensures that joint control may still be achieved where one person is representing multiple contracting authorities on the board—or similar body—of the controlled body. This continues the existing position in Regulation 12(6) of the Public Contracts Regulations 2015. The second part—the inclusion of new sub-paragraph (6)—stems from the updated definition of “contracting authority”, which means that the vertical arrangements exemption would unintentionally have allowed a wider category of organisations to access the exemptions than intended. This amendment ensures that the vertical and horizontal arrangements are available only to the intended public sector contracting authorities and not to public undertakings and private utilities, which have arrangements that reflect their more commercial nature.

Amendment 14 is a mirror of Amendment 13, for the same reasons. In this case, the purpose is to limit the availability of the horizontal arrangement exemptions to the intended public sector contracting authority recipients.

Amendments 15 and 16 remove the term “legal activity”, which is currently defined by reference to the Legal Services Act 2007, and replaces it with the term “legal services”. This is necessary because the definition in the 2007 Act is not appropriately applicable in a Scots law context. Leaving the term undefined allows the exemption flexibility to adapt to different legal systems within the confines of the remainder of the exemption.

I turn now to the final government amendment in this group. Amendment 17 adds a reference to legislation that explains the meanings of “contract of employment” and “worker’s contract” in Northern Ireland. This is a result of the talks with the Northern Ireland authorities. Adding the Northern Ireland reference again allows the exemption flexibility to adapt to different legal systems, provided that the remainder of the exemption is met. I beg to move.

[Baroness Noakes (Con)]

My Lords, I shall speak to Amendment 11A, which is an amendment to government Amendment 11. Amendment 11A is really only a place- holder to discuss some broader concepts about this Bill and about paragraph 2 of Schedule 2 in particular.

I confess that I paid little attention to the government amendments ahead of our first day in Committee. Like other noble Lords, I was completely overwhelmed by the huge groupings and the lack of explanation that arrived before they were tabled—hence, I tabled Amendment 11A only yesterday. I am certainly grateful for the explainer that was circulated yesterday. I have not yet read all 60 pages, but a reasonable summary is something like this: “We are trying to keep the new UK procurement code as close as possible to EU rules.”

This is at the heart of one of my main problems with this Bill: we have not created a UK code at all. The Bill may well have simplified or reduced the number of different sets of rules, but that has not achieved a significant simplification of the rules to any meaningful degree. Furthermore, it uses terms and concepts that are comprehensible only to procurement practitioners and in a way that is often alien to the way in which we do things in other areas. It has few principles and a whole load of pernickety rules, of which this schedule is one. In short, this is the EU way of doing things and not the UK way of doing things. I believe that we have missed an opportunity to create something that would have worked better for UK businesses and, indeed, for the UK public authorities that have to comply with it.

I turn to the specifics of Amendment 11A. The amendment would delete new sub-paragraph (2A) in Schedule 2, which is contained in my noble friend’s Amendment 11. Sub-paragraph (2A) is not new, as it rewrites sub-paragraph (2)(c) of the existing Bill. The effect of sub-paragraph (2A) denies the vertical arrangements exemption that my noble friend has just described if the body concerned has even one share held by other than a public authority. I think that this is nonsense. Holding one share or any other kind of minority holding does not change the nature of control, which is what paragraph 2 purports to base the vertical exemption on. It would restrict the exemption to bodies that are wholly owned by the public sector, in effect, and I can see no economic rationale for that.

I also want to challenge two other aspects of paragraph 2, arising out of new sub-paragraph (2B), which is a rewrite of the existing sub-paragraph (2)(b). There is one material change from the existing sub-paragraph (2)(b). It is similar to the issue that I raised in the context of Amendment 4, which we debated on our first day in Committee. The existing sub-paragraph (2)(b) refers to a person who

“exerts, or can exert, a decisive influence”.

The new version merely talks about a person who “exerts a decisive influence”. I explained on Monday that the conventional UK approach when looking at things such as control is to use a test based on the capacity to control rather than actual control. Curiously, paragraph 2 uses that concept of capacity to control because it uses the basic definition of control via the parent undertaking definition in Section 1162 of the Companies Act 2006. Under that section, control exists if a parent undertaking holds a majority of voting rights or has the right to appoint or remove a majority of the board. That is, control exists for the basic purpose of this clause if there is the ability to control, whether or not the right is used. Can my noble friend explain why the Government are using one approach to control but another for decisive influence, deliberately caused by the amendment that he has just moved?

I now turn to the concept of decisive influence itself. If someone other than a controlling authority exercises decisive influence, the vertical arrangement exemption does not apply, so it is important to find out what it means. I expected to find a definition of the term “decisive influence” in the Bill, because it is not a term that is found in general use related to companies or the control of organisations, but I cannot find a definition.

Interestingly—I say “interestingly” as I find it interesting, but I am a bit of an anorak on these things—Section 1162 of the Companies Act contains the concept of dominant influence, which is an alternative way of establishing whether a parent undertaking exists. A dominant interest is defined in Schedule 7 to that Act and requires a right to give directions to a board of directors that the board of directors has to comply with. The Companies Act does not use “decisive influence”; it uses “dominant interest”.

How then do we establish whether decisive influence exits? Do we assume that because the Bill does not use the Section 1162 definition it means something different? That might imply that it is something below the level of control, but precisely what it is getting at seems unclear. As far as I can tell, decisive influence is not a term used in English law, which comes back to my point that we are still rooting ourselves in EU law. It is found in EU competition law and, in that context, it is used as part of a rebuttable presumption of control, so that if a majority of shares are held the parent undertaking is assumed to exercise decisive influence on the subsidiary undertaking.

If it means a variant of control, we end up saying that vertical arrangements will not be exempt even if a contracting authority can control a body. If another body in fact controls that body, it does not matter if the other body can control it but does not do so; it just looks at whether it exercises control. However, the exemption is denied if a tiny fraction of the shareholding of the undertaking is held outside the public sector. There is another leg, which is if less than 80% of the activity is carried out for the contracting authority. There is a confusing set of thresholds for denying the exemption. It is even more complicated if joint control is involved, but I will not go into that. I submit that logic and common sense have somehow gone missing in paragraph 2 and that it needs a rethink.

--- Later in debate ---

Moved by

[Baroness Noakes]

22: Schedule 3, page 83, line 38, leave out from “contracts” to end of line 39
Member’s explanatory statement
This amendment probes what “good reasons” are acceptable for the purposes of not aggregating contracts.

[Baroness Noakes (Con)]

My Lords, Amendment 22 is in a group of rather different amendments, most of which have more meat in them than my amendment. It is a probing amendment to paragraph 4 of Schedule 3, which contains a provision to ensure that contracts are not fragmented in order to escape the value limits that govern some of the procurement rules. The basic rule in paragraph 4 is that the contracting authority has to add up the value of all the contracts if they could reasonably have been supplied under one contract.

However, paragraph 4(2) allows the contracting authority not to do this if it has “good reasons”. Amendment 22 proposes to remove this in order to find out exactly what the Government intend to allow contracting authorities to do and to probe why they have not been more specific in the Bill. At first sight, paragraph 4(2) is a massive let-out clause, enabling authorities to avoid aggregating contracts. I look forward to my noble friend the Minister’s explanation. I beg to move.

[Lord Wallace of Saltaire (LD)]

My Lords, I rise to speak to Amendment 81, which we on these Benches regard as particularly important. It would put in the Bill one of the most important decisions to take before embarking on the procurement of public goods and services: make or buy? That is the subject of an entire chapter in the Government’s own Sourcing Playbook. This key decision process is missing from the Bill. We seek to put it in as an essential part of the pre-procurement process. The choice of delivery models should be based on careful and impartial consideration of the different forms of delivery available for each type of work, supply or service.

Conservatives in Government have sometimes acted as though outsourcing to for-profit companies—often large outsourcing companies that have been labelled “strategic suppliers”—is the only model worth considering. Unless the Minister wishes to argue that The Sourcing Playbook and other recent publications on procurement guidelines are no longer operable, it seems entirely appropriate to put in the Bill that the choice between in-house and outsource should first be considered. Later, we will move other amendments on the delivery model choices between for-profit and not-for-profit provision.

We have carefully followed the Government’s own language in these publications in drafting the amendment. The Minister may argue that we should leave the Bill a skeleton as far as possible to allow Ministers as much flexibility as possible; we have heard him press the case for flexibility already. We argue the case for clarity, accountability and future-proofing. The principles of the procurement process must be in the Bill, not left for later in the policy statements issued by changing Ministers as they pass through the relevant office.

--- Later in debate ---

[Lord True (Con)]

My Lords, I could not possibly be tempted, particularly at 8.04 pm when the Committee needs to finish shortly and I already have a very long response to a large number of amendments. The Bill does have pipeline notices, which I have discussed: I will engage with the noble Lord on that before Report and I welcome that.

Amendment 141 is about a hugely important issue to which so many noble Lords spoke. The noble Baroness seeks to amend Clause 24 to require contracting authorities to take account of accessibility and design for all principles when drawing up their terms of procurement, except in duly justified circumstances. This is an issue of fundamental importance. It is of concern for disabled people, and I know that your Lordships hold concerns about accessibility very close to their hearts; it comes up in every piece of legislation.

As part of our broader goal of a simpler regulatory framework and increased flexibility to design efficient, commercial and market-focused competitions, the Bill does not dictate how terms of procurement including technical specifications are to be drawn up, which is the issue around Clause 24. It simply contains what is prohibited by international agreements and applies to all “terms of a procurement” as defined in Clause 24(5). We believe that this approach is better than the existing approach, as buyers are forced to truly analyse and develop the content of their specifications to address the needs of all those the public contract should support.

The UK has legal obligations, which we readily own and which will dictate how terms of procurement are drawn up, with accessibility covered by Section 149 of the Equality Act 2010, as mentioned by the noble Lord opposite. We consider that helps deliver the intended outcomes of both the current duties in this area contained in Regulation 42 of the Public Contracts Regulations 2015 and of this amendment.

I have heard the very strong speeches made by noble Lords on all sides, and I have seen the submissions from the RNIB and others. It is very important that we should have constructive discussion to test whether the Bill delivers the accessibility that your Lordships hope for. The Government remain absolutely committed to ensuring that public procurement drives better outcomes for disabled people. In our contention, there is no dilution of the commitment to accessibility under the Bill. The Government are clear that accessibility criteria should always be taken into account in every procurement, and the existing legislation ensures that that is the case.

However, we will engage further on this and on the other themes and points put forward by so many noble Lords in this wide-ranging debate. In those circumstances, I respectfully request that the amendments are withdrawn and not pressed.

[Baroness Noakes (Con)]

My Lords, the only amendment that is going to be withdrawn is my rather small amendment in this group, Amendment 22. My noble friend said that we needed flexibility, and that good reasons were there to allow flexibility. I completely buy the need for flexibility in the procurement rules, but I still wonder whether good reasons without some other constraint around them are sufficient. I was pondering whether the good reasons need to be attached to value for money, or something similar. That may be covered by the interaction with Clause 11, which sets up procurement objectives, but I am probably too tired to work that out in my own mind at the moment. I will consider it further, and my noble friend the Minister, who also said he would consider it further, might like to reflect outside this Committee on how that works out. For this evening, I am sure that everyone will be mightily relieved if I beg leave to withdraw my amendment.

Amendment 22 withdrawn.

Procurement Bill [HL]

Baroness Noakes Excerpts

Committee stage
Monday 4th July 2022 Grand Committee

In the House, the Chief Whip made much about the availability of the Keeling schedule, as did the Minister. As your Lordships know, this is essentially a marked-up or tracked version of the Bill. As far as I am aware, it has not been made available in a printed version and has been circulated by email only to interested parties. I will take correction if it has now been made public.

[Baroness Noakes (Con)]

We have not received it.

[Lord Fox (LD)]

I will correct my speech. It has not even been received by all the interested parties, which makes it worse.

Furthermore, to date, the Cabinet Office has not provided proper explanatory statements for each of the new government amendments. There is nothing in the current Marshalled List. The eighth group, which we had planned to debate today, contains a group of amendments that was wholly absent from the Minister’s original letter and the table that some, if not all, of us received when that letter came. Essentially, we have had no time—hours, at best—to consider these amendments.

More than that, the Minister stressed the value of the external community and the input we get from interested parties in this legislation. Those interested parties have not had a little time to consider these amendments; they have had no time. They are not on the record for those bodies that can feed in and positively reinforce your Lordships’ legislative process. We are missing all that. So never mind the unintended consequences of this legislation—we do not even know what the intended consequences are.

For this reason, I put the Minister on a warning that I will object to each of his amendments. When the Question on Amendment 1 is put, I will be not content. My understanding of the process is that, in Grand Committee, this will mean that the amendment will need to be withdrawn.

--- Later in debate ---

[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.

--- Later in debate ---

[Baroness Noakes (Con)]

I shall finish by offering a comment on another amendment in this group. Amendment 5, in the name of the noble Lords, Lord Wallace of Saltaire and Lord Fox, is a bit like déjà vu all over again.

The Member’s explanatory note says it is probing why ARIA is excluded from the scope of the Bill. The noble Lord, Lord Fox, is well aware from his involvement in the passage of the Advanced Research and Invention Agency Act that it is excluded because Parliament has already decided to exclude ARIA from procurement regulations. I know he did not like it then and he clearly does not like it now, but it is clear government policy that has been approved by Parliament in order that ARIA can be a nimble research body, free to pursue its aims without being shackled by a lot of unnecessary bureaucracy. Nothing has changed since that Act was passed.

[Baroness McIntosh of Pickering (Con)]

I am delighted to follow my noble friend with a few brief remarks. I say at the outset that I regret that I was unable to contribute to Second Reading. I shall limit my remarks today to my arguments probing why Clause 2 and Schedule 2 are part of the Bill. This raises a more general question as to why we actually need the Bill, as I understand that we are already in the GPA. We have had a number of Statements about this and discussions in this regard with the Minister responsible for trade, my noble friend Lord Grimstone. I would be grateful if my noble friend could elaborate on what I am about to put to him.

As I understand it, the purpose of the Bill is twofold: first, to reform the UK’s public procurement regime following our exit from the EU; and, secondly, to create a simpler, more transparent system that better meets the country’s needs rather than being based on transposed EU directives. I understand that we are to have a separate exercise where we go through all the retained EU law, when we come to what is euphemistically known as the Brexit freedoms Bill, to decide which of those retained EU directives we may wish to keep.

My understanding is that much of what is before us today, as my noble friend has explained, is already covered by the World Trade Organization Agreement on Government Procurement—the GPA, as it is called. The aim of that agreement is to mutually open government procurement markets to those party to that agreement. The threshold values are, curiously, almost identical to the thresholds that had to be met through our membership of the European Union, which was roughly €136,000. We are now looking at £138,760 as the threshold for the general agreements for goods; for services, it is the same amount and, for construction, it is £5 million-plus.

As my noble friend Lord Lansley rightly assumed, I am trying to ascertain through this debate the way in which public contracts can be defined. I am assisted in this regard by paragraph 16 of the Explanatory Notes, which sets out that:

“The Public Contracts Regulations 2015 will be repealed and new rules on procurement will be set out in the new regime. Most central government departments, their arms-length bodies and the wider public sector including local government, health authorities and schools will have to follow the procedures set out in the Bill in awarding a contract with a value above set thresholds to suppliers.”


If, for example, there is a public procurement contract for food, for vegetables and meat, for a local school, hospital, prison or some other public body, what is the procedure that will have to be followed after the adoption of the Bill and, more specifically, the regulations that will flow from it?

That is the specific question that I would like my noble friend the Minister to address. How will public procurement for contracts over the threshold be treated? For the purposes of the Act, will they be treated differently from those that already apply under the GPA? How will the contracts apply for those that are under the magic threshold of £138,760? In effect, will the same procedures apply as before we left the European Union? I am particularly interested in food, fruit and vegetables, for the reason that we were all told this was going to be a benefit—a Brexit dividend from leaving the European Union—but I am struggling to see how this dividend will be delivered in this regard. When these contracts are put out for tender, whether they are above or below the threshold, how will that procedure apply? Can those that are under the stated threshold be awarded to local suppliers without being put out for international tender, or could we have Spanish or, indeed, African companies applying to deliver these?

I admit to being confused, because we were told that this was something that would happen after we left the European Union, and I am still struggling to see how these contracts are going to happen. We were told that it would boost local growers in this country to have these contracts put out for tender once we were no longer in the European Union. I look forward, with great anticipation, to my noble friend the Minister’s reply.

Procurement Bill [HL]

Baroness Noakes Excerpts

2nd reading
Wednesday 25th May 2022 Lords Chamber

[Baroness Noakes (Con)]

My Lords, there is a lot to like in this Bill and, like my noble friend Lord Maude of Horsham, I do not think that it will be improved by adding a lot of extra things to it.

My favourite kind of Bills are the ones which repeal EU-derived legislation and replace it with legislation designed for the UK. As such, my favourite clause in this Bill is Clause 107, and my favourite schedule is Schedule 11. Unfortunately, some of the new rules still seem to be written in EU-speak. In particular, I have in mind the description of a “public contract” in Clause 2 which uses the term “for pecuniary interest”, which I have failed to find in any UK-based legal usage in this context. I am sure we can explore that in Committee.

I have one main problem with the Bill: the public procurement rules are still very complicated. Creating the new procurement system requires over 110 pages of primary legislation in this Bill, and who knows how much more in the secondary legislation. I acknowledge that we must remain compliant with the WTO’s Agreement on Government Procurement, and I also pay tribute to the extensive consultation the Government have carried out before bringing this Bill forward. Of course, the Government have made significant changes, reducing seven procurement categories to three, and having a single set of procedures for most public procurement. I will say in passing that I regret that there is a power in the Bill to allow the NHS to go its own way; it would have been very much more satisfactory if a single code had applied across all public procurement. The NHS, in particular, needs to be exposed to more competitive procurement, not protected from it. I would really like to see Clause 108 removed. However, I am a political realist when it comes to the quasi-religion of the NHS, and I accept that I may not achieve that ambition.

My challenge to my noble friend the Minister is whether more simplification could have been achieved. Could the procurement code be even more streamlined and even more principles-based?

My personal knowledge of public procurement is limited to being engaged in a number of public procurements as both a seller and a buyer over the years, and therefore I claim no specialist knowledge of public procurement and I cannot point to a better way to draft it. However, I am aware that there is a whole army of public procurement specialists out there. A number of noble Lords have already referred to the sorts of numbers of people in various parts of the public sector who are handling public procurement. I have a feeling that we should have a way to liberate more of them so that they can be more productively employed in the economy.

My noble friend the Minister will also be aware that the UK’s reputation for gold-plating regulations is well known and that we often went voluntarily much further even than we were required to by the EU. Can my noble friend tell the House how the Government satisfied themselves that gold-plating does not live on in this Bill? It would be terrible if we allowed the UK to be dragged down by the kind of bureaucratic groupthink that we really ought to have left behind.

I said earlier that there is a lot to like about the Bill, and, like other noble Lords, I particularly like the way in which the Government have shaped the basis of contract award, shifting from the “most economically advantageous tender” to the “most advantageous tender”. The previous formulation had a tendency to drive contracts towards lowest-cost tender and left little scope for longer-term strategic considerations or for innovation, which other noble Lords have spoken about. Although it was entirely possible under the EU system not to award contracts to the lowest bidder, the new formulation makes it clear that a narrow economic evaluation is a part of, but not the heart of, public procurement—and that is good.

Turning to SMEs, which other noble Lords have already covered, we know that they have traditionally found the public procurement processes intimidating and inaccessible. With its emphasis on proportionality, the Bill may well help to open up public procurement to more SMEs. The 30-day payment term throughout the supply chain will certainly be welcomed by SMEs if it is actually delivered. The noble Lord, Lord Mendelsohn, who is no longer in his place, made some important points about that.

The Government will be aware that SMEs may still perceive that significant barriers will be associated with engaging with public sector procurement, despite the improvements made in the Bill. What will the Government do to promote SME involvement in public sector procurement and to demystify the new regime and help them to access it?

My final point relates to light-touch contracts, which are allowed under Clause 8. I rather liked the Government’s initial proposal in their consultation to subsume light-touch contracts into the mainstream, especially given the reformulation of contract classifications and the articulation of procurement objectives. However, the Government have given in to pressure to keep the light-touch regime going. I do not challenge that, but I hope that the Government will keep it under review.

The extraordinarily wide power to designate light-touch contracts under Clause 8 has already been mentioned, in particular by the noble Lord, Lord Fox. Although there are matters to which the Government must have regard for specifying services as light-touch, there is no actual restriction on what the Government could put in this category. The regulation-making power is the affirmative procedure, which is of course better than the negative procedure, but not by much in practical terms. I hope that my noble friend can explain why the Government have chosen to make the light-touch regime so open-ended, otherwise we may need to look at that very carefully in Committee.

I look forward to scrutinising the Bill in Committee, but also hope that we can get it on to the statute book as quickly as possible so that its benefits can be realised. That hope may well be unrealistic given the evident enthusiasm from other noble Lords for an extensive Committee stage, but I can but hope.

[Baroness Young of Old Scone (Lab)]

My Lords, I declare my interests, as listed in the register, as a chair, vice-president or commissioner of a range of environmental and conservation NGOs.

I declare today Groundhog Day for two reasons. First, I am following the noble Baroness, Lady Noakes, for the second day in a row. I am pleased to do so; and it proves that the Whips’ Office has a sense of humour since I revealed yesterday that I have disagreed with the noble Baroness consistently for the past 44 years.

[Baroness Noakes (Con)]

I think it is actually 34 years.

[Baroness Young of Old Scone (Lab)]

I take the noble Baroness’s challenge: I will do the maths shortly and pass her a note, although I did look up her CV yesterday to check the date. It was 1988; the rest of your Lordships can now do the maths.

The second Groundhog Day phenomenon is that, yesterday, I and many other noble Lords pressed the Government on the lack of climate change, environment and biodiversity objectives in the UK Infrastructure Bank Bill. We asked why the Government were missing an opportunity to ensure the delivery of their target to halt species decline by 2030 through the mechanisms of that investment vehicle.

Today, we have a similar—even bigger—real opportunity in the Procurement Bill. Many of the opportunities on the environment and climate change were outlined by my noble friend Lady Hayman of Ullock. The Minister told us that public procurement is big: it was worth £357 billion in the past year, makes up a third of all public expenditure, represents 13% of GDP and is estimated to account for 15% of climate-changing emissions. Public procurement on this scale has the capacity to be a huge influencer for good in terms of the climate change and environmental performance of the whole of the public supply chain. This influence could go even further because public procurement shapes the performance not only of the suppliers of goods and services that are publicly procured but of the wider markets to which the same suppliers also sell. Basically, my message is that it can influence a big slug of the economy.

The twin crises of climate change and biodiversity decline are allegedly two of the Government’s highest priorities. We boasted about this on the world stage at COP 26 in Glasgow only a few months ago. Yet when the Minister, the noble Lord, Lord True, signed off the Bill’s formal statement under the Environment Act 2021, he never spoke a truer word—if I can pun—when he said that this Bill cannot be construed as environmental legislation. He was absolutely right because it cannot, although it may talk about “maximising public benefit” as a key objective. The Green Paper on which the Government consulted referred to public benefit as including

“the delivery of strategic national priorities”,

including those relating to the environment, yet we have no formal definition of “public benefit” in the Bill. Your Lordships’ House is being asked to pass the Bill when some key elements of public benefit, climate change and performance in support of targets in the Government’s 25-year environment plan are relegated to the National Procurement Policy Statement and a set of policy notes.

The current version of the National Procurement Policy Statement is pretty flabby. It says:

“All contracting authorities should consider the following national priority outcomes”,


which include climate change, the environment and biodiversity. The phrase “should consider” is a bit weak, is it not? It is not “must deliver” or “must adhere to”; it is just “should consider”. That is not good enough. We are at a “Thelma & Louise” moment; for those noble Lords who are not cinema buffs, let me explain. We in the world are currently living it up beyond our means and driving madly towards a cliff edge. We need action to meet the Government’s urgent environment and climate change targets as an objective of public procurement in the Bill and we need it to be a requirement, not simply a consideration.

Can I also ask the Minister whether we can have sight of whatever upgrade to the national procurement policy statement the Government are planning to issue? It is so important to this Bill—otherwise, we are considering a bit of a pig in a poke. Will the Minister also consider whether the process of changing the NPPS could be improved? Currently, it is subject to a procedure equivalent to the negative procedure. Does the Minister think that this is sufficient parliamentary scrutiny of such an important document?

I turn to two further elements of the Bill. The Government are touting the exclusions section as progressive and praiseworthy. That has some merit. The Bill says that the conviction of an offence involving

“significant harm to the environment”

constitutes discretionary guidance for excluding suppliers from procurement—but only “discretionary”. The exclusion provisions must be much tougher than that, to give a clear signal that only operators who consistently meet high environmental standards will be considered.

Secondly, though the transparency requirements are very welcome, they depend on secondary legislation and do not currently impose requirements for suppliers to report publicly on environmental commitments, either in the NPPS or in individual contracts. The Government’s record on tracking performance is not great. The National Audit Office has repeatedly raised concerns about the lack of data and monitoring of compliance with the current government buying standards. It is interesting to see that the Ministry of Justice, the Department for Transport and the Ministry of Defence simply stopped collecting the data because it was so embarrassing to have to report. The Environmental Audit Committee at the other end concluded that it appears impossible to know whether departments have improved their sustainable procurement performance. So should the Minister not consider including reporting environmental commitments in the transparency framework that the Government are proposing to establish, and saying so in the Bill?

Somebody once told me that football would be a terrible game if you did not keep the score. I actually think that football is a terrible game—but let us at least keep a proper, transparent score on how public procurement is delivering these important public benefits.

Along with many other noble Lords, I look forward to returning to these issues at subsequent stages of the Bill, to make sure that this terrific opportunity to use procurement as a powerful lever for improving the performance of the Government’s climate change and environmental targets is not lost. We are drinking in the last chance saloon, and if we do not use all the levers at our disposal, we will not meet the climate change and biodiversity decline challenges—and I am amazed that the Government have not recognised how much of an own goal this would be.

Elections Bill

Baroness Noakes Excerpts

Report stage
Monday 25th April 2022 Lords Chamber

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I apologise to the noble Lord, Lord Stunell, and to the House, for having pushed him so rudely.

When one sees the way the tide of opinion is flowing strongly, it is very easy to think that it is best to keep one’s head down and not provide a cautionary word about being careful what we wish for in taking these amendments through—should the House so decide. I note and appreciate the concerns expressed in powerful speeches this afternoon. These are replicated in the briefing from the Electoral Commission referred to by the noble Lord, Lord Grocott. Several letters in the correspondence columns of the broadsheets have carried an equivalent message.

I also recognise that the drafting of parts of these clauses can best be described as uncompromising. The noble and learned Lord, Lord Judge, referred to this, though I think he was slightly dismissive about the consultation processes provided for in Clause 15, in new Sections 4C and 4D. He pointed out that the procedures for scrutinising secondary legislation are proving increasingly inadequate and ineffective for modern conditions. He knows that I agree with him. I am pleased to be able to tell him and the House that the Secondary Legislation Scrutiny Committee, which I chair, will publish a further end of term report at the end of this week. This will give grist to his mill—and indeed to mine.

Among the concerns raised is the use of what can be described as tertiary legislation. I spoke to the noble and learned Lord in advance of this debate, so he knows broadly what I shall say about creating bodies over which there is absolutely no parliamentary control but which, none the less, have powers that concern some of the most fundamental aspects of our society. One recent example is the College of Policing, an independent body able to introduce regulations and codes that affect every one of us.

The noble and learned Lord, Lord Judge, and my noble friend Lord Blencathra have made common cause in attacking this. I entirely support them. To come to the point, I am not yet convinced that, if these two amendments were agreed, we would not be creating another body equivalent to the College of Policing, but this time for electoral purposes—an equally important part of our national life.

Am I enthusiastic about Clauses 15 and 16? Not at all, but I recognise that there is some parliamentary involvement and approval in this process. If these amendments were accepted, the Electoral Commission—with all the criticisms that have been made of it, fairly or unfairly—would float free from any even minor scrutiny or accountability. In my view, this would be even less desirable.

[Baroness Noakes (Con)]

My Lords, it is a pleasure to follow my noble friend Lord Hodgson. I wish him a very happy birthday.

[Noble Lords]

Hear, hear.

[Baroness Noakes (Con)]

I wish to make two points about these amendments. I do so in the hope—but not the expectation—that noble Lords who have set their faces against these clauses will look at them in a more favourable light.

First, all public bodies must be accountable, whether they are independent regulators or carrying out other kinds of function. This should not be a controversial statement. The role of the Speaker’s Committee, as set out in PPERA, with its focus on budgets and plans rather than outcomes and actions, provides a weak accountability framework. Indeed, the report on election fraud from my noble friend Lord Pickles, who I am glad to see in his place, found it ineffective. Clauses 15 and 16 beef up the Speaker’s Committee so that it can hold the Electoral Commission to account on the basis of the policy and strategy statement, remembering, of course, that that statement is not just the creature of government and must be consulted on and approved by Parliament. Anyone who opposes Clauses 15 and 16 really should explain how they would ensure that the Electoral Commission will be properly accountable, because the current arrangements are simply not fit for purpose.

Secondly, there is a myth that the strategy and policy statement is a de facto power of direction or involves giving instructions—I think that was the phrase used by the noble Lord, Lord Grocott—to the Electoral Commission. Clause 15 could not be clearer. There is no obligation on the commission to follow the statement. There is no alteration of the core duties and obligations set out in PPERA. The commission’s only duty is to have regard to the statement and report annually on what it has done in consequence of it. That report might, in theory, say that it has done nothing in consequence of the statement, but given the generally bland nature of these policy and strategy statements, I think that would be unlikely.

The opponents of these clauses, however, say that the strategy and policy statements will influence the Electoral Commission, with the implication that influence is always malign. I believe that the independence of the Electoral Commission is founded in the independence of the thought and integrity of the commissioners themselves, and those commissioners are not appointed by the Government. Genuinely independent commissioners will do what they think is necessary in accordance with their statutory obligations, and they will do that whatever the Government tell them to do. The commissioners are the first line of defence against undue influence. Influence can be a positive thing, too. I hope noble Lords would have no problem if, for example, a statement influenced the commission to focus on important issues such as those that arose in relation to Tower Hamlets. I remind noble Lords that the Electoral Commission did not cover itself in glory when first encountering the issues there. I urge noble Lords not to support these amendments.

[Lord Hayward (Con)]

My Lords, I shall cover two or three points. I shall not go into detail about some of my concerns about the Electoral Commission, except to make a limited comment about difficulties I have at the moment. I will start by referring to comments made by the noble Lord, Lord Grocott, earlier in relation to referees. I wear my rugby referee’s tie with pride today because it is an indication of the impartiality one is required to have under all circumstances. No player or spectator ever accused me of not being impartial. They may have accused me of being incompetent, and did so volubly from the touchline, but they did not accuse me of not being impartial.

I must disagree with both my noble friends Lord Hodgson and Lady Noakes. As far as I am concerned, there are ways of dealing with the problems of the Electoral Commission. As I think many Members know, I have had more problems and more dealings with the Electoral Commission over the last 12 months than virtually anybody in this Chamber—and, my godfathers, does it not drive you barmy? I have sympathy with the Government because they are trying to tackle the problem. All I shall say on my latest difficulty, which has been running for four or five days, is: will the Electoral Commission please look at itself rather than passing to others the responsibility for policing matters—administering elections and the like? This problem has run since 2013 to my full knowledge. It keeps saying that other people need to deal with these matters but it does not look at itself.

These clauses are not a way of tackling the problems that I and others have faced with the Electoral Commission. As the noble Lord, Lord Grocott, said, in effect, they tell us that the home team at a rugby match shall have the right to speak to the referee and tell him how he will referee that game. I am sorry, but I disagree with the noble Baroness, Lady Noakes: if you are giving guidance, however softly and subtly you do it, you are influencing the Electoral Commission and not giving others that opportunity to influence it in the same way. We need to look at the way that the commissioners are appointed, and we may need to look at the way that other organisations around it operate, but the one thing we do not need to do is to tie the commission to guidance from the Government.

--- Later in debate ---

Moved by

[Baroness Noakes]

51: Clause 22, page 32, line 14, leave out “party’s assets/liabilities figure does not exceed £500” and insert “assets/liabilities condition is met in relation to the party”
Member’s explanatory statement
The amendments to Clause 22 in the name of Baroness Noakes ensure that the reporting threshold for section 28(3D) of the Political Parties, Elections and Referendums Act 2000 (declaration of assets and liabilities to be provided on application for registration) is expressed in terms that are consistent with accounting practice.

[Baroness Noakes (Con)]

My Lords, in moving Amendment 51 I will also speak to Amendments 52 and 53 in this group, and I can be brief. The amendments are technical and, I hope, non-contentious, especially as my noble friend Lord True has added his name to them.

In Committee, when we were debating what is now Clause 22, I asked the Minister about the wording of the new subsections (3B) and (3C) in Section 28 of PPERA. This exempts small parties from the new requirement to make a declaration of assets and liabilities when they register. The threshold has been set at £500, which is in line with the recommendations of the Electoral Commission, which recommended it be set by reference to assets or liabilities. The Bill added another reference point: assets plus liabilities. Being a very old-fashioned accountant, adding assets and liabilities together did not make any sense to me.

Since Committee, I have had very constructive exchanges with my noble friend the Minister and his officials, and the outcome of that is the three amendments in this group. In effect, the amendments say that the small-parties threshold is now expressed as £500 for either assets or liabilities. It does this by saying that a small political party has to meet an assets/liabilities condition, which is defined in proposed new subsection (3C), in Amendment 53, as being met only if both assets and liabilities do not exceed £500.

I am grateful to the Government for facilitating this small change to the Bill in the interests of good accounting practice. I beg to move.

[Lord Khan of Burnley (Lab)]

My Lords, I welcome the amendments tabled by the noble Baroness, Lady Noakes, to highlight the importance that provisions relating to electoral law are consistent with accounting practice. I know that the noble Baroness speaks with great experience and expertise in this area, having served as the president of the Institute of Chartered Accountants in England and Wales, as well as holding various senior positions in the accounting and finance area.

Specifically, these amendments focus on the registration of parties and the declaration of assets in relation to this process. It is crucial that the individuals and groups participating in elections are fully transparent in their practices—a point which these Benches have consistently raised during debates on amendments in previous stages of the Bill.

I hope the Minister can provide assurances that PPERA and other legislation governing political activities are already consistent with accounting practice, but I would also appreciate if she could use this opportunity to provide a more general update on how the evolving governance of accountancy and reporting will relate to political finances.

Finally, the Minister will be aware that the Financial Reporting Council is preparing to transition to become the audit, reporting and governance authority. Can she confirm whether the Government expect the new authority to play any role in overseeing finances relating to elections? I look forward to assurances from the Minister.

--- Later in debate ---

Moved by

[Baroness Noakes]

52: Clause 22, page 32, line 17, leave out “party’s assets/liabilities figure exceeds £500” and insert “assets/liabilities condition is not met in relation to the party”
Member’s explanatory statement
See the explanatory statement to the amendment in the name of Baroness Noakes at page 32, line 14.

Elections Bill

Baroness Noakes Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 23rd March 2022 Lords Chamber

[Baroness Noakes (Con)]

My Lords, it is a pleasure to follow the noble Lord, Lord Grocott, with whom I completely agree. I will speak mainly on the opposition to Clause 11 standing part, which is in this group, but I do not support any of the amendments in it. I listened very carefully to what the noble Lord, Lord Campbell-Savours, said—he was clearly much too modest to say that he actually invented the supplementary vote system, back in 1989, so what we heard was some rather over- protective parenthood trying to keep that system going.

Our electoral system has had first past the post at its heart for a very long time—and very successfully. The noble Lord, Lord Grocott, referred to the referendum in 2011, when the British people were quite conclusive in their view: they did not want the alternative vote system. I accept that it is not the same as the supplementary vote system, but it showed that the British public had no appetite to change from the first past the post system.

The noble Lord, Lord Kennedy of Southwark, who is unfortunately not in his place, described the supplementary vote system, in 2015, as “one of the worst” electoral systems, and I agree with that. The noble Lord, Lord Wallace of Saltaire, described it in 2014 as the “oddest” electoral system—I thought I was going to find a second thing that I could agree with him on this week, but he may have been using that as a compliment. I do not think anyone has mentioned that, in 2016, the Home Affairs Committee in the other place recommended that it be abandoned for PCC elections.

The supplementary vote system is used hardly anywhere outside England, with very good reason. The noble Lord, Lord Kerslake, helpfully gave the statistics for the 2021 London mayoral and PCC elections. He tried to blame that on the ballot paper, but I just do not buy that: there is a very significant difference between the number of spoilt ballot papers in the—

[Lord Kerslake (CB)]

I was quoting what the Electoral Commission said.

[Baroness Noakes (Con)]

I hear what the noble Lord has said, but the difference between the spoilt ballot papers in the local elections at that time and the PCC and London mayoral elections is too great to be laid wholly at the door of the shape or design of the ballot paper.

The British people understand the first past the post system, which is why they supported it in 2011. It gives a clear result to the candidate with the most votes, and that is the heart of accountability. If that candidate does not perform to the electorate’s will or expectation, they can boot him out; they can vote him out at subsequent elections. That is the key advantage of the first past the post system: it gives a very clear result.

[Lord Scriven (LD)]

Is the logic of what the noble Baroness is saying that electors in Northern Ireland and Scotland who use STV, or people in South Yorkshire who elect their mayor, cannot vote their officeholders out because of the voting system?

[Baroness Noakes (Con)]

They can vote them out, but it is much more obscure—the link is much less direct. The supplementary vote system, which is what we are talking about replacing, clearly allows weaker candidates, with fewer first preference votes, to get through the system because of second preference votes, which have the same value as first preference ones—that does not seem right.

My only regret about the Bill is that it does not get rid of the even more confusing additional member system for the London Assembly. As the noble Lord, Lord Grocott, said, we fortunately no longer have the proportional representation system for the EU elections, which resulted in MEPs being distant and certainly not accountable to electorates. I would personally look again at the systems used in Scotland and Wales, but I shall stick to my normal practice in your Lordships’ House of not getting involved in devolved matters. It is time for our electoral systems in England to return to their roots and for the first past the post system to be the default for national elections and all English elections.

[Lord Moore of Etchingham (Non-Afl)]

My Lords, I have been affected by the debate this evening. I was intending to speak—if I was going to speak at all—in a rather different way, because I have anxieties about the way that the Government introduced this legislation, at the point when they brought in all the material about the form of election. But I have been stirred by the other side of the argument, because something that I feared has definitely now come about: the people arguing against the Bill are really trying to bring back proportional representation, as a much wider piece of argument, into the whole of our public life and our electoral system—

Elections Bill

Baroness Noakes Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 21st March 2022 Lords Chamber

[Lord Sikka (Lab)]

Thank you very much. I certainly have not come across any evidence to suggest that ID cards are an answer to the problem of voter fraud. I would like to broaden the debate a little and think about the consequences. I grew up in east London, where it was not unusual for people of certain backgrounds to be stopped in the street by the police and asked to show ID, when you are not required to carry any ID. What would happen in this brave new world when the police stopped people and said, “By the way, you now have an official ID. Have you not got it? Can you not bring it from home and report to the police station?” What would be the consequences for the young people who are unwilling or unable to produce those officially sanctioned ID cards? Would that drive a wedge between the police and the community? Would that criminalise people? Would that fuel more dissatisfaction with our parliamentary system? Would that fuel social instability? I would like to hear from the Minister where this ID concern will stop. What would be the broader social consequences? It seems to me that we would be opening up American-type social problems. They would be imported here, because people simply do not have or cannot produce officially sanctioned ID cards.

It is minorities who will be targeted. It is well known and well documented that the police target minorities. They would have a new authority to wield to criminalise minorities. I would love to hear the Minister’s views on that.

[Baroness Noakes (Con)]

My Lords, voter ID is not something dreamed up by the Government with the express intention of suppressing voter turnout, as various noble Lords have come perilously close to suggesting in both today’s debate and our debates last week. I am sure that, as parliamentarians, we all share a belief in the centrality of elections to our democracy and a desire to achieve the highest standards of integrity and participation. I believe that it would be a unworthy slur to suggest that my party believes anything else. The plain fact is that the Electoral Commission has recommended voter ID, as have international election observers. Most European countries require it; Northern Ireland has had it for nearly 40 years.

[Lord Scriven (LD)]

Can the noble Baroness explain where the Electoral Commission by itself said that voter ID was required? Or was it responding to options that were put before it in terms of what it saw as the best form of voter ID? Does the noble Baroness have the evidence to say that the Electoral Commission has said of its own volition that voter ID is required?

[Baroness Noakes (Con)]

I am sorry that I do not have chapter and verse with me, but the Electoral Commission has called for voter ID since 2014. As I said, Northern Ireland has used it for nearly 40 years.

I find it quite extraordinary that polling station procedures in Great Britain are virtually the same today as they were when I started voting 50 years ago. It is quite remarkable.

[Lord Adonis (Lab)]

If the system works well, why change it? I thought it was a good Conservative principle that, when it is not necessary to change, it is necessary not to change.

[Baroness Noakes (Con)]

The world has changed very considerably in the past half a century.

[Baroness Bennett of Manor Castle (GP)]

Would the noble Baroness concede that this House and the other place have changed very little in the 100 years since women got the vote in the way we operate at Westminster?

[Baroness Noakes (Con)]

That is an entirely irrelevant observation, if I may say so.

I have heard many noble Lords say that this is a solution to a problem that does not exist, but I believe that that is looking at this through the wrong end of the telescope. I invite noble Lords to read my noble friend Lord Pickles’s report on election fraud, which was published after the disgraceful events at Tower Hamlets. He found that there were risks of electoral fraud in our current system. The fact that relatively few people have been convicted of election fraud is not the point. It is clear that there are real risks; we owe it to the electorate to minimise those risks.

I am astonished that noble Lords can oppose the simple concept of voter ID. As my noble friend Lord Hayward said, voter ID is required if you go to a Royal Mail depot, or indeed the Post Office, to collect a parcel. Let me give a more mundane example: last Friday, I collected a birthday cake from a supermarket and was required to show some ID. It is just part of the way we carry on our lives now. We require ID for all kinds of things. From my perspective, requiring voter ID is a reform that is long overdue.

It is also obvious that, if you go down the route of voter ID, the most secure way of proving identity is photo ID. That is why the Labour Party has required it at some of its conferences—unless the noble Lord, Lord Collins of Highbury, is going to countermand that, that is what I believe to be the case. If we go to a meeting at the MoD or the Bank of England, we have to show photo ID, because it is part of the way we live our lives now.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Baroness for giving way, because it is worth addressing this point. It came up earlier with her noble friend Lord Hayward, who said to me, “You collect your parcel”, et cetera, and I suddenly looked down and saw myself, of course, wearing a badge around my neck, as I and most noble Lords do. I notice that my noble and rebellious friend Lord Grocott is currently not wearing his, but that is presumably for the TV cameras, and he will put it on later. Are noble Lords suggesting that, by complying with sensible security practices within this Palace and wearing this thing around my neck as I walk around every day, I am conceding that I should be prepared to wear such a thing on the street and in my life for other purposes?

Surely that concession is not made, because we are not comparing like with like. If anything, when I leave the Estate, if I still have this badge around my neck, a police officer will say to me, “Please take that off”, because it is not appropriate. Something that is of security value in here becomes a security risk out there. We are, therefore, not necessarily comparing like with like. The most sensitive and valuable ID that I possess is probably the card that gives me access to taking cash out of the wall, and it has no photographic evidence on it whatever. These are different purposes, different levels of risk and different levels of ID or not. Is that not the case?

[Baroness Noakes (Con)]

My Lords, the noble Baroness says we are not comparing like with like, and I completely agree. I drew no parallels with the wearing of identity badges in this building or, indeed, many other buildings; many corporate organisations require this for their own internal security purposes. That is completely different from engaging in certain acts, whether it be going into certain buildings as an outsider or carrying out daily tasks such as collecting parcels. I am suggesting that it is perfectly ordinary to propose using it when going to election polling stations to cast one’s vote.

Northern Ireland has used photo ID for more than 20 years with no problems. Indeed, Northern Ireland electors are happier with their elections than the rest of the UK. To the noble Baroness, Lady Chakrabarti, I say that there has been no harm done in using voter ID in photo form in Northern Ireland at all—no recorded harm whatever. The issue that we should focus on is how to facilitate voting by those who do not already possess the kinds of photo ID that are allowed for in the Bill. The Government’s latest estimate—there are higher estimates from earlier studies—is that this applies to 2% of the population. That is roughly a million electors, which is a lot of people, but the Government have already successfully piloted a scheme of voter cards.

There is no evidence from the pilots of an impact on different communities, although there has been a lot of speculation throughout today and our previous Committee days on which particular groups will be affected. I am sure that there will be local issues in local areas, which is why—

[Lord Scriven (LD)]

The Electoral Commission’s analysis of the 2019 pilots showed that people in the compulsory voter ID pilot, after the ballot, had a 69% satisfaction rate with the poll, compared to 77% of those outside the photo ID pilot. Why, if it did not cause a problem, does the noble Baroness think that satisfaction was less in the pilot area than in the non-pilot areas?

[Baroness Noakes (Con)]

I cannot answer that question, but the purpose of pilots is to find out what practical problems there are with major policies, and it was good practice on the Government’s part to have various different pilots to find out the sorts of issues that might arise.

[Lord Scriven (LD)]

But if the basis of this, as the Government keep saying, is to increase the public’s satisfaction and the ballot integrity, why is it that 69% versus 77% think that that did not happen?

[Baroness Noakes (Con)]

I do not think the only metric is how satisfied people were. The most important thing is how comfortable people are with the integrity of the voting system. Just being satisfied with the first rollout of something is not going to give you the final answer. It is right to let local authorities, who know about their local electorates, work out how to reach these hard-to-reach communities. It is right to enlist civil society groups to do the same, as well as political parties, which should know their local areas and know how best to do it.

We know there will be some teething problems, and some voters may not bring the right voter ID with them the first time they come. But according to both the Electoral Commission and the Association of Electoral Administrators, this happened to a very small degree during the pilots. As I said earlier, pilots are there to find problems so that they can be overcome. I hope that noble Lords will stand back and look at these reforms—

[Baroness Fox of Buckley (Non-Afl)]

My Lords—

[Baroness Noakes (Con)]

I am just about to finish, if the noble Baroness does not mind. I hope that noble Lords will stand back and look at these reforms through 21st-century eyes and see them as sensible and proportionate, and as a reflection of how we live our lives on a daily basis.

Elections Bill

Baroness Noakes Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 17th March 2022 Lords Chamber

[Baroness Meacher (CB)]

My Lords, I am not going to take anything but a tiny bit of your Lordships’ time. The noble Baroness, Lady Hayman, has given us a very comprehensive and clear introduction to this group. I have been worried for a long time about local authority funding and the squeeze on it for the past 10 years or so and I have just one question for the Minister: has he consulted with a selected group of local authorities about whether they regard this as a good use of their resources and their money? If not, will he set in motion a consultation with local authorities about whether they really feel they can take on this added cost and use of their resources?

[Baroness Noakes (Con)]

My Lords, the noble Baroness made some interesting points about the issues that will face local government in implementing these proposals. She referred to the cost estimates, which are of course included in the impact statement, and seemed to say that these were extraordinarily large numbers. There are 45 million electors. At £180 million, the top end of the range, that is only about £3 per elector: we have to get this into perspective. We are talking about proposals that will improve the integrity of our electoral system. This is a very modest cost; can we just get it into perspective?

[Lord Woolley of Woodford (CB)]

My Lords, waiting five hours to speak, you can get a bit anxious. I am not quite sure how you do this on a regular basis. I would have preferred not to be here today; I would have preferred to be in Cambridge, at Homerton College with my students. We have a big event on, and I would have liked to be there with them, but I told them I need to be here discussing the Bill, because of its immense importance, not least to them and their generation. We are making laws that, if we are not careful, lock people out rather than encouraging people in.

I thank the noble Lord, Lord True—I reached out to him to have a conversation and he said, “By all means”. We had a good conversation, and it was a respectful one. I am not sure I persuaded him on some of the fundamental points that I am going to put now, but he said, “Lord Woolley, you need to persuade the House as well”, not least those on the Government side. He said to make sure I have my facts and to make sure I have evidence. We talked about a number of things, two of which I would say the noble Lord, Lord True, violently agreed with. One was the need for comprehensive citizenship in our schools. He said, “What’s not to like about that? We need to empower, to inform, to educate the next generation to understand what happens in this Chamber. Because, if they do not have that, they do not engage in politics.” It is the truth.

I was struck, as the Minister may have been, that a year or so ago hundreds of thousands of young people, black, brown and white, protested with Black Lives Matter up and down the country, demanding justice and race equality. However, many of those hundreds of thousands of people who took to the streets do not vote because they do not see the correlation between their protest and what happens in these Chambers. Having citizenship education, giving them that knowledge, would help their protests to translate into voting. We agreed on that.

We also agreed on the need for the Government and local authorities to ensure that people are encouraged to register to vote. We know that in my community, the black community, particularly among young Africans, 50% are not even registered. So these were the two issues that the Minister and I violently agreed on, yet—think about this for a second—in the Elections Bill there is nothing about citizenship, nothing about how we get people to the polling booths and nothing about ensuring that local authorities and communities engage in voter registration. You could not make it up. What we are presented with is not how we get people to the voting booth, enhance our democracy or inspire a generation to play their part, which this Bill should be campaigning for; instead we are spending hours upon hours ensuring that people do not fall off the register. Many of us today are not trying to ensure that people can get on but trying to save people from falling off. That is the truth. This is putting the cart before the horse.

The Minister said to me, “Make sure you get your facts”—and rightly so, because we are moved by evidence. I am here to tell the House that the last time I spoke here I inadvertently misled the House. When talking about voter fraud, I said in front of your Lordships that five individuals had been convicted of that offence. I was wrong: there was one, and one caution, out of 47 million people. So when we are looking at facts and justifications, are we telling these young people and our society that we are spending £180 million and are on the verge of losing—how many people might we lose through this legislation?—10, 20, 40, 100, 1,000 or potentially even millions of people because we are saying that there is a problem with voter fraud? How can I go to schools and colleges and tell young people to engage in politics when they see how we are doing politics, and when they see that we are spending millions of pounds but the effect is to take people off the register?

Evidence was asked for. The noble Baroness mentioned the local elections in 2019 and the pilot schemes. In its evaluation, the Electoral Commission noted that between 3% and 7% of those who engaged with those elections were turned away because they did not have the right voter ID, including non-photographic ID. We have to extrapolate what that might mean in a general election, because that is the evidence we are presented with. The Electoral Commission and others suggest that between 50,000 and 400,000 people could show up at a general election, be turned away and not come back—that is against one conviction of fraud. Is it me? Am I missing something here about how bonkers that sounds?

--- Later in debate ---

[Lord Eatwell (Lab)]

As I was saying to the noble Lord, an accurate study to achieve a careful assessment of the impact of any measure would have to take into account all the circumstances of the time. Over time, there will be a change in circumstances, and therefore the gross figures may appear as if there has been no impediment. However, if you disaggregate the components of the motivations to vote, it is difficult to believe that the introduction of a new requirement or impediment has a zero effect.

[Baroness Noakes (Con)]

Does the noble Lord believe that this will be a permanent or a temporary effect? As my noble friend Lord Hayward said, voter ID has existed in Northern Ireland for a very long time, introduced by the Labour Government. There has been no evidence of a reduction in voter turnout and, importantly, there is a higher degree of satisfaction with the integrity of elections in Northern Ireland than in England and Wales. I think we ought to ground ourselves in facts—not pilots or the studies by the Rowntree Foundation, but facts.

[Lord Eatwell (Lab)]

I think the noble Baroness would agree that the electoral issues in Northern Ireland are rather different from those in the rest of the United Kingdom.

As I have just said, studying a phenomenon over time requires a careful disaggregation of the effects. Looking at the gross numbers does not tell you anything. Specific studies which carefully disaggregate the impact of particular measures are necessary. I find it difficult to see how one can sustain the argument that introducing a particular impediment to vote will have a zero effect.

As I was about to say, at Second Reading the noble Lord, Lord True, in what I call precautionary mode, referred to locking your door to prevent burglaries even though your house has not been burgled. However, it is striking that if you go to the Isle of Sark, where there are no burglaries, no one locks the door. It is the presence of burglars that encourages people to lock their door. If the incidence of fraud is one, as the noble Lord, Lord Woolley, told us, and the cost now is £180 million, or whatever the number is, to prevent one occurrence, is that value for money?

Elections Bill

Baroness Noakes Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 15th March 2022 Lords Chamber

[Baroness Hayman of Ullock (Lab)]

My Lords, we have now come to the seventh group of amendments, where there are two amendments, Amendment 30C, in the name of my noble friend Lord Collins, and Amendment 31, in my name. Both amendments are probing amendments to Clause 21, which concerns the registration of parties and considers the declaration of assets and liabilities to be provided on application for registration.

One thing that the clause does is introduce the requirement that new political party registrations will have to be accompanied by a declaration that the new party does not have assets over £500 on registration. If it does have assets of over £500, it will be required to produce a record of those assets and liabilities. The amendment looks at the figure of £500 and suggests that it should be changed to £450. The purpose is simply to probe the reasoning behind the figure of £500 and to ask for some information about how that figure was arrived at, whether there was a precedent, and so on.

One thing that I am aware at in looking at the figure of £500 is that the Electoral Commission’s 2018 report, Digital Campaigning: Increasing Transparency for Voters, which I am sure we will debate later on when we get to the digital campaigning part of the Bill, recommended that all new parties should submit a declaration of assets and liabilities over £500 on registration. I wondered whether perhaps that was where the figure came from; it would be useful to understand. Obviously, those recommendations were intended to increase the transparency of digital campaigns and help prevent foreign funding of elections and referendum campaigns. So this is really to probe government thinking: did it come from this group and will be looked at and discussed when we get to the digital campaigning part of the Bill? It would be helpful at this stage to know that.

My Amendment 31 is, again, a probing amendment, looking at the proposals amending Section 28(8) of PPERA about the length of time that the copy of the record of assets and liabilities provided by the party should be kept available for public inspection. The Bill says that this should be for

“such period as the Commission think fit”.

My amendment suggests replacing that with 20 years, as we felt that that seemed like a reasonable amount of time and gave more clarity and detail as to how long a record would be kept available for public inspection. Again, I would be interested to hear from the Minister how that wording came to be decided on and what the criteria are that the Electoral Commission will use to determine a fit amount of time. I do not know whether there is a precedent anywhere else in legislation that has guidance for a fit amount of time. Will the Government be providing guidance on that issue? Are we out of the ball park with 20 years, or are we in the right place? Are there any other areas of electoral law—or similar law, if not specifically electoral law—that the commission would use as some kind of comparison when looking at decisions on that?

I read the Explanatory Notes to see whether there is anything further on this, but there did not seem to be any more information than what is already in the Bill. It would be helpful to get a better understanding of the Government’s thinking on these points, how they intend to take that forward, how they will work with the Electoral Commission and what kind of guidance there might be.

[Baroness Noakes (Con)]

My Lords, I have one further question to add to the questions that have been put to the Minister. New subsection (3C), which will be introduced by Clause 21, refers to calculation of assets and liabilities. Noble Lords will be aware that, as an accountant, I get interested in how assets and liabilities are measured. I understand the concept of net assets, which is assets minus liabilities, and the concepts of gross assets and gross liabilities. What I do not understand is the concept in new subsection (3C)(c) of assets plus liabilities. Under this, if a party had assets of £255 and liabilities of £250—that is, they had net assets of £5—adding the assets and liabilities together would give a figure of over £500, which would bring it within the scope of the new subsection, which, frankly, I do not understand.

[Lord Stunell (LD)]

My Lords, I will comment on Amendment 31, which is about record-keeping. I return to the point I made a few minutes ago: it is about not just keeping the records but access to the records that have been kept. There are plenty of “publicly available” records that are not actually publicly available in real life. Election expenses are a case in point: GDPR has added an extra layer of complexity because they often contain personal details, bank details, addresses et cetera that ought not to be transmitted to other persons. Clearly, these records might well come within the same purview. I do not seek a detailed reply from the noble Baroness as that would be quite unfair, but I hope that, as we proceed, the Government will be able to illustrate that they have considered carefully issues of record-keeping, and, indeed, how the transparency that goes with record-keeping will be maintained in the current and projected circumstances.

Elections Bill

Baroness Noakes Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 10th March 2022 Lords Chamber

[Lord Collins of Highbury (Lab)]

My Lords, on behalf of my noble friend Lady Hayman, I will speak to this amendment while she searches for her glasses.

These are classic Committee amendments in which we try to probe exactly what lies behind these clauses and in particular the clause that we do not agree with that we debated earlier. It is important to address the question that the noble Lord, Lord Butler, asked: what is the question to which this clause gives an answer? It is not clear, and I hope that we can address that with this amendment and the series in the following group to try to elicit some answers.

I was intrigued by the explanation of the noble Baroness, Lady Noakes, that the statement is about the political environment that the commission operates in. That can change rapidly, not least the closer we get to a general election. Now that we do not have fixed-term Parliaments—not that that really determined when a general election could be held—it is not clear what timetable would be involved in this requirement to produce a statement, which the commission “must” take cognisance of. Let us have some answers from the Minister.

I will repeat the question asked by the noble Lord, Lord Butler: what are we trying to solve here? What is the commission not doing that the Government think it should be doing at the moment? It is not clear. I have not heard a single criticism about the failure of the commission to carry out its statutory functions. I have heard political criticisms. The noble Baroness, Lady Fox, is fortunately not in her place so I will say what I want to say. I am prepared to accept that Parliament agreed to a referendum, and Parliament will abide by the result of that referendum and the Government do so, but I am not in favour of referendums. I am in favour of parliamentary democracy. I know who used referendums a lot: Hitler used referendums to store up his power, and so does Putin. It is important to understand what we are talking about here, which is a body that oversees statutory functions in the conduct of elections.

Therefore, with these probing amendments we are seeking to know—despite the detail of what the clause says—how frequently the Minister thinks these statements will be issued. When will the first be issued? Will it be six months before the next general election? Could it disrupt the way that people, political parties and civil society react to the general election? Let us hear it. How often does the Minister think this should be reviewed? The Bill says that this is something we should expect every five years and that it will fall into the cycle of elections, but our political environment is not as stable as that, so there may be other issues that prompt this. I would like some answers to those questions.

Also, what is the Minister’s expectation for how long it will take to produce the statement and the requirement for consultation? What does he expect between the start of the process and its end? What does he think the implications will be not only for the Electoral Commission but for the political process itself and the way political parties operate? It is really important that we get some answers to those questions.

I turn back to the point the noble Baroness, Lady Noakes, raised. I have been intimately involved with the Electoral Commission, certainly for the three-year period I was general secretary of the Labour Party. One of the innovations I thought was really good was that the Electoral Commission has the experience of people with quite detailed knowledge of the electoral process. It has members who are aware of the way political parties operate. It is not working in isolation; it has that experience.

One of my roles was to nominate somebody to the commission. It has a Member of this House, the noble Lord, Lord Gilbert, who is a friend of mine. Even though we are in opposite parties, we have collaborated in better understanding the rules and regulations that operate on political parties. Sadly, the noble Lord, Lord Gilbert, cannot be here this afternoon but I think all members of the Electoral Commission, even though they are nominated—some of them by political parties—take their responsibilities and independence very seriously. I think if he were here the noble Lord, Lord Gilbert, would explain that that was why he did not sign the letter from the Electoral Commission; he is a Member of this House, and it would perhaps have been inappropriate. But that does not stop him taking his responsibilities on the Electoral Commission seriously.

I do not get it; I really do not get what this is all about. What are the Government trying to correct or do? There are mechanisms now, as we heard in the previous debate, about accountability, the Speaker’s Conference and representations. Of course, just as importantly, political parties nominate to the commission—not just the Conservative Party or the Labour Party, but the Lib Dems and the Scottish nationalists have representation on that body. It is independent representation, but they take their statutory responsibilities seriously.

Let us get some answers if we can, not only to the question of the noble Lord, Lord Butler, but also to when the first statement will be produced. How long will it take? How close will it be to the next general election? What impact will such a statement have on the conduct of that general election? These are vital questions, irrespective of a future debate on whether the clause stands part. We need answers to these questions because they will determine our attitude to whole aspects of this Bill. I beg to move.

[Baroness Noakes (Con)]

My Lords, the noble Lord, Lord Collins of Highbury, has ranged rather more widely than the contents of the two amendments in this group, but I respect that Committee is an opportunity for probing detailed aspects. I want to speak only to the second amendment about the length of time you would normally expect a statement to exist.

We have to see these as strategic statements; they are about strategies and policies. Too short a timeframe simply would not work. The presumption in the Bill is five years, which is a reasonable medium-term timeframe for giving some stability, with the option for reviews earlier on various grounds listed in the Bill. I support the general concept of five years being a good starting point, recognising that there can be occasions when this has to be revised. But they should not be picked up and looked at every year or in the run-up to an election, because they should be dealing with issues that have a longer duration.

[Lord Collins of Highbury (Lab)]

Can I just ask the noble Baroness a question? If she looks back over the last 20 years, or even over the period of the Electoral Commission’s existence, what have the gaps between general elections been?

[Baroness Noakes (Con)]

I do not think that is a relevant question because I do not believe the statement is going to be used to try to fine-tune what is done in relation to any particular election. It will be about more strategic things like getting more participation from certain groups in the democratic process and those sorts of issues.

[Lord Collins of Highbury (Lab)]

I am sorry to interrupt but I think this is an important dialogue to have. We bandy around the words, “strategy” and “long-term strategy” but what we have not had from the Government—though the noble Baroness has attempted to give us an answer—is the answer to: what is behind this clause on this statement? Why do we need this statement?

I agree with the noble Baroness that one of the important things, and what this Bill should be about, is how we increase participation. The noble Lord, Lord Hodgson, is unfortunately not here, but this Bill should be about what we do to increase participation in our democratic process. How do we ensure that more people are able to participate and what do we do to take down the barriers that inhibit participation? If the noble Baroness is saying that this statement will be about that, why are those things not in the Bill?

[Baroness Noakes (Con)]

I am going to let my noble friend the Minister answer all this in detail because I am not a government spokesman on this. I was merely offering my opinion on the timeframe. When we get to the stand part debate, I am going to offer some other opinions about why these statements are useful in the context of regulators.

My concern is to see that these statements are strategic in nature and that means not short term in nature. They should be seen in that context. The timeframe of five years is fine for that, but I am going to leave my noble friend the Minister to respond in more detail to the broader questions that the noble Lord has asked.

[Lord Rennard (LD)]

My Lords, these amendments may lead to some mitigation of the effects of the Government taking control of the strategy and policy of the Electoral Commission if the Bill is passed in its present form. If Clauses 14 and 15 are not taken out of the Bill, as they should be, we can still limit some of the damage by preventing the party in power continually changing the statement in accordance with its own interests.

Amendment 3 would not allow a new statement 12 months after the Act is passed, while Amendment 13 tests how often the Government might seek to change such a statement. As the noble Lord, Lord Collins, pointed out, the amendments probe the Government’s intention in relation to the timings and processes of the proposed strategy and policy statement to which the Electoral Commission will be subject. The governing party appears to want to emasculate the role of the independent watchdog.

--- Later in debate ---

[Lord Scriven (LD)]

My Lords, it is interesting to follow the comments of the noble Baroness, Lady Noakes, who says that this is a strategic statement that is there for five years and not for revision. If we look at page 24 of the Bill, new Section 4E says that there is a power to revise the statement and that the Secretary of State may revise the statement at any time. It goes on further to say that:

“The power under subsection (1) may be exercised … on the Secretary of State’s own initiative”.


If this is a strategic statement, it then goes on to say about revision on page 25 under new Section 4E(4):

“The Secretary of State may determine in a particular case that section 4C(2) (consultation requirements) does not apply in relation to the revised statement.”


The view of the noble Baroness, Lady Noakes, is that this is a five-year strategy where the Secretary of State does not want to intervene because it is about the long-term view of the commission. But the Secretary of State can solely decide that not only are they going to revise but that no consultation is needed. May I ask the Minister under what circumstances and for what purpose would the Secretary of State wish to revise the strategy and policy statement? Under what circumstances would the Secretary of State deem it inappropriate to consult on the new statement, particularly if we follow the view of the noble Baroness, Lady Noakes, that this is a strategic view where the Secretary of State does not need to get involved on day-to-day issues because the strategic direction is set for five years? Why have the revision policy and, particularly, why can the Secretary of State determine alone to change the statement without consultation?

[Baroness Noakes (Con)]

My Lords, if I may respond to that, I was careful to say that it a broad presumption of five years and that the Bill allows for other opportunities, which I am sure my noble friend the Minister will explain. The noble Lord failed to deal with the fact that the revision can be considered at the request of the commission as well—it is not just a one-way street—and that is provided for in new Section 4E.

[Lord Scriven (LD)]

If noble Lords will allow me, the point I was raising was the basis on which the noble Baroness said that it was a strategic five-year statement and therefore the noble Lord, Lord Collins, had got the concept wrong. If it is a five-year statement that gives a long-term vision for the commission, the Secretary of State should not have sole power to revise without consultation. That is the point that I was making. It is in the Bill.

--- Later in debate ---

[Lord Collins of Highbury (Lab)]

It is me again. Here, we are trying to better understand what the Minister means when he repeats reassuring paragraphs, not least, “This is not the Government imposing on the Electoral Commission; this statement will be subject to Parliament, and there will be consultation”—although, there will be circumstances where there will not be consultation, which is even more worrying.

We are trying to probe exactly how engagement and approval of both Houses of Parliament will work. This is important, because in the other place the majority rules, which means there is sometimes a lack of scrutiny and attention to detail. The Government have a majority and the Executive, if they take an opinion, try to force their view through the House of Commons, naturally, by the function of the majority party. So, scrutiny gets squeezed. This was one of the interesting things about the scrutiny the Commons did on this Bill in Committee. It was done in two and half hours. There were some really important clauses on funding that got no consideration at all, which is why the role of this unelected House—again, the noble Baroness, Lady Fox, is not in her place—is so vital. Our job is to scrutinise, to ensure that when legislation is passed by the majority in the other place, it is fit for purpose, does what it is intended to do and does not have other implications.

These probing amendments try to push the Government into giving clearer answers about how Parliament is going to engage in the process of this statement. We are also seeking a clear position on the role of this House in scrutinising and ensuring that the majority party of the Executive is not able to force things through, which can have huge implications. I was going to say it can have huge implications for the Opposition parties, but of course, it may also do so for the majority of the votes cast in our democratic process.

I come back to the fundamental point that many noble Lords have mentioned. Changes to our electoral system should be made by consent and in a way that all political parties can accept—these are the rules, and we are all going to follow them and abide by them. As soon as an Executive start pushing things through that favour their party and cause damage to the other parties, that is a very dangerous road to go down. We are trying to ensure through these amendments that changes in statements are not just written and approved by the Executive and forced through by the Whips of their party, but are subject to proper involvement, engagement, consultation and approval by Parliament, because we are a parliamentary democracy. I beg to move.

[Baroness Noakes (Con)]

My Lords, I am going to start by banking an agreement with the noble Lord, Lord Collins of Highbury. I completely agree, as I think the whole House does, that the quality of scrutiny in the other place underlines the importance of what happens in your Lordships’ House. Having banked that, I could not understand why these amendments have been tabled. Amendment 4 asks for the strategic and policy statement to be approved in draft by each House—but that is exactly what proposed new Section 4C calls for. It calls for the Secretary of State to lay a draft before Parliament that cannot be designated until it has been approved by each House of Parliament. These are standard procedures in each House, including, importantly, your Lordships’ House. I understand why the noble Lord might want to seek a way of saying that we want more than the normal procedures that apply to secondary legislation, but these amendments do not get any closer to that. They simply duplicate in a different place what is already in the Bill, both for the initial statement and for the revised statements.

[Lord Collins of Highbury (Lab)]

I accept the point the noble Baroness is making, but I think everyone in the House is always concerned about the way in which secondary legislation is implemented. Even though we have the opportunity to scrutinise it, it is extremely difficult ever to change it; and although we have certain powers in secondary legislation, it is not clear that they will apply to this statement. I am not very keen on using fatal motions, for example. Is that going to be an opportunity for this House? That is why we are asking these questions. These are probing amendments that do not simply say that this is the position we want to see. However, the principle of proper parliamentary engagement is one we want to ensure, and doing so might mitigate some of the aspects of this proposal.

[Baroness Noakes (Con)]

I completely understand that point, but the noble Lord is raising something much broader, which goes beyond the existing procedures we have for handling secondary legislation. I agree with the noble Lord that we should have a full and proper debate about whether there should be alternatives to the nuclear option. However, that is not a debate for this Bill.

--- Later in debate ---

[Baroness Noakes (Con)]

My Lords, I hesitate to rise to speak, given the entrenched views already expressed, both in this debate and in earlier debates this afternoon, but I think the reaction to Clause 14 has been disproportionate. Strategy and policy statements for regulators are not new. They are now an established part of the regulatory landscape, although it is still a relatively new concept and noble Lords may not have been following this development. As has been said, strategy and policy statements already exist for other regulators. There is absolutely no evidence that they have in any way impaired the independence of those regulators from government. If there had been a problem with them, it would be well known by now, as all regulators have multiple routes for making their views known. There is no significant difference between the functions of the Electoral Commission and the other regulators, as the noble Lord, Lord Kerslake, sought to say. There is no significant difference to make them exempt from what is a development in the regulatory practice in this country.

I was deputy chairman of Ofcom when the Government announced that they would legislate for a strategy and policy statement for Ofcom. That was eventually included in the Digital Economy Act 2017. Like all regulators, Ofcom was extremely protective, and somewhat precious, about its independence. It is fair to say that, within Ofcom, the reaction was of considerable suspicion of the Government’s motives. I had left the board before the final statement was eventually published in 2019, so I have no insights into the final process. However, having read that statement, it is difficult to see that there is anything in it that would cause any concern about the independence of Ofcom. I have not heard of anything to that effect. In fact, the statement itself looks rather anodyne to me, as do the statements in relation to the other regulators. I have not had an opportunity to look at the draft statement for the Electoral Commission, but even the noble Lord, Lord Butler of Brockwell, found nothing disobliging to say about it when he spoke earlier.

[Lord Beith (LD)]

I am sure that the noble Baroness believes firmly that the Government she so strongly supports would not issue a statement that would challenge the independence of the commission. However, there is absolutely nothing about the illustrative statement—or, indeed, in comparison with statements made for other regulators—that in any way circumscribes the ability of this Government or future Governments to go much further than that, unless they are restrained by things that we put into the legislation.

[Baroness Noakes (Con)]

At the end of the day, there is a requirement for Parliament to agree. That is an important part of the framework. It is not something the Executive can do alone. It would need to become a parliamentary approved statement and, as we discussed earlier, it must be approved by both Houses of Parliament.

My second point is that we should be absolutely clear that strategy and policy statements are not directions. No power of direction exists for the Electoral Commission, and Clause 14 does not create one. Noble Lords would be rightly concerned if Clause 14 created a power of direction in relation to the Electoral Commission. I think that the Electoral Commission was just plain wrong, in its written briefing, to claim that it would be subject to government direction as a result of Clause 14.

I regret to say that the noble Lord, Lord Butler of Brockwell, for whom I have the highest regard, was also wrong, when he spoke on the first group of amendments, to assert that this statement amounts to a direction. It does not. Directions are very clear in what they can force public bodies to do. This does not force anything. The only requirement, as we have heard, is in new Section 4B for the Government to “have regard to” the statement. We discussed that in the first group of amendments, and the noble and learned Lord, Lord Judge, has made some comments on the ineffectiveness of that, because it does not refer to other things which it could “have regard to”. It does not trump the commission’s statutory objectives; it does not compel the commission to do anything at all, or to take account of anything else.

We must keep all this in proportion. It is an additional thing for the Electoral Commission to take into account; it does not replace all the existing law relating to the commission. This is the formulation used for all existing regulators, and I believe it is the right approach to protect regulatory independence. As I said, no concerns have been expressed to date about the independence of any of the regulators subject to statements.

The important thing is that the commission has to report on what it has done in consequence of the statement. In practice, as we will see from the way in which the statements tend to align with what the independent regulators are doing, statements generally reinforce what those bodies are doing, and relatively new information beyond what would be included in the annual report comes as a result of those statements.

However, it is important that the independent regulator explain any divergence from the Government’s priorities as approved by Parliament. For example, if the Government said that their priority was to improve democratic participation, not just generally but for particular groups, we would want to know what the commission had done about that and whether it had had any impact. That really does not threaten independence.

I believe that transparency and accountability are what the strategic and policy statements are really all about, and why they are useful. One element is for the Government to be transparent about their policies and priorities, because they have to set them down, get them consulted on and then have them approved by both Houses of Parliament. The regulators then have to be transparent in reporting on what they have done in respect of those priorities—or whether they have done nothing at all. That allows them to be held to account by Parliament—in the case of the Electoral Commission, through the Speaker’s Committee. I hope noble Lords will see that this legislation is not the monster they have created in their own minds. In fact, it can be seen as a very positive development for improving transparency and accountability. I hope we will allow these clauses to stand part of the Bill.

[Lord Eatwell (Lab)]

My Lords, I regret that, like the noble Baroness, Lady Noakes, I was unable to attend the Second Reading debate. At the time I was on an aeroplane returning from work in the United States. However, I have read the full proceedings in Hansard with great care and I feel appropriately informed.

Moreover, some time spent in the United States has also given an added perspective on some of the measures in the Bill, for there is about it a definite odour of the Donald J Trump playbook. There is the whiff of voter suppression in the extra requirements being added for access to the franchise. There is a distinct stench of the politically partisan in the measures that undermine the independence of the Electoral Commission. But perhaps the strongest stink arises from changes in the franchise being imposed by the current majority party, without pre-legislative scrutiny or a Speaker’s Conference. This strikes at the foundations of our constitution, written and unwritten.

I predict that in due course, much as the late Enoch Powell predicted, Mr Johnson will be defeated in an election—and then there will be a, perhaps minor but none the less significant, online campaign claiming that the election was stolen or rigged. While it would be unfair to claim that the noble Lord, Lord True, had planted the seeds of such a threat to our democracy, he will have added a little natural fertiliser. In his speech introducing the Bill at Second Reading, he made much of the precautionary principle, and of taking steps to protect the integrity of elections from potential, if as yet hypothetical, threats. He did not, however, extend his precautionary principle to the measures in Clauses 14 and 15 that, as the Public Administration and Constitutional Affairs Committee stated, risk undermining public confidence in electoral outcomes by diminishing the independence of the Electoral Commission, both in perception and in reality.

As the late Lord Hailsham famously observed, this country is governed by an elected dictatorship. A Government with a substantial majority in the other place can do virtually what they please. That is why this House, with its, let us say, peculiar composition, has a particular responsibility to protect the constitution, written and unwritten, against partisan proposals by the governing party. Here, the discussion by the noble Baroness, Lady Noakes, of statements for regulators gives us a valuable insight, because, in this case, the statement is made by the regulated entity. It is as if one of the broadcasters could have a statement telling Ofcom to what it should have regard. The Secretary of State is a political figure. In the electoral arena, he is a regulated entity. He should not be in a position to provide advice of any sort to the regulator.

As the noble and learned Lord, Lord Judge, said at Second Reading,

“there is a constitutional necessity, in a system of democracy based on universal suffrage, that any electoral commission should be wholly and totally independent”.—[Official Report, 23/2/22; col. 239.]

By rejecting these clauses and affirming the independence of the Electoral Commission, this House will make a vital commitment to free and fair elections.