House of Lords: Regional Representativeness

Lord True Excerpts

Wednesday 22nd March 2023 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords—

[The Lord Privy Seal (Lord True) (Con)]

My Lords, there is plenty of time; I think we can hear from the noble Baroness from the Greens, and then from the Labour Party.

[Baroness Jones of Moulsecoomb (GP)]

Greens are very good at geographical representation, and when we have 13% in the polls—as apparently we do this week —perhaps we ought to have more representation here in your Lordships’ House. Obviously, if there were more Greens, your Lordships would hear less from the two Greens that you have already. Is that not a win-win?

House of Lords Appointments Commission

Lord True Excerpts

Thursday 21st July 2022 Lords Chamber

[Baroness D'Souza]

To ask Her Majesty’s Government, in the light of recent press comments, what plans they have to alter the role or composition of the House of Lords Appointments Commission.

[The Minister of State, Cabinet Office (Lord True) (Con)]

None, my Lords.

[Baroness D’Souza (CB)]

My Lords, I thank the minister for his Answer.

The Burns report, commissioned by the noble Lord, Lord Fowler, was warmly received in this House and by the Government of that time. Its recommendations included a limit to the number of Peers appointed to the House of Lords and changes to the authority of the House of Lords Appointments Commission. Will the Government now undertake to be guided by these recommendations, or are they to be abandoned?

[Lord True (Con)]

My Lords, I have answered on a number of occasions in relation to the Burns committee. On the specific question of whether the Government have plans to alter the role or composition of HOLAC, I repeat: we have none.

[Baroness Smith of Basildon (Lab)]

My Lords, we are no better informed than we were previously. Debates in this House have strongly endorsed the Burns committee and the calls of the noble Lord, Lord Norton, for the House of Lords Appointments Commission to be on a statutory footing. The reason for this is the scale and controversial nature of appointments made by this Prime Minister. For this House to work at its best, it needs to be smaller and to be assured of the integrity of all appointments. Anything else undermines those who take on their positions to contribute in the national interest.

I have two points for the Minister, which I hope he will take back to Downing Street, whoever happens to be in occupation at the time. First, this House needs assurance that the Prime Minister will not make appointments that do not have the approval of the House of Lords Appointments Commission. Secondly, is not this the first time in history where the House of Lords, instead of resisting government reform, is leading the calls for a smaller house and the end of hereditary Peer by-elections, and for HOLAC to be listened to, while it is the Government who are resisting reform?

[Lord True (Con)]

My Lords, the role of the House of Lords Appointments Commission is greatly valued. It is advisory and one of its primary purposes is to vet nominations to the House of Lords. Your Lordships’ House is in need of being refreshed constantly. We have had the pleasure today of welcoming a new Member, just as yesterday we heard the valedictory speech of one of our most beloved and long-serving Members, my noble and learned friend Lord Mackay. There is a difference, although it is unchivalrous to point it out, of 37 years between those two Members. Refreshment is part of that and any Prime Minister will always seek to do it. My observation is that there is a need for an urgent refreshment of the Front Bench opposite, whose work is outstanding and presses hard on them. I have long advocated, and hope it will happen, that there should be a refreshment of the Front Bench opposite. I hope that will not be resisted by your Lordships.

[Lord Forsyth of Drumlean (Con)]

Perhaps my noble friend might suggest to the Prime Minister that, in making appointments, he adopt the policy pursued for Cross-Benchers who come here via HOLAC of getting assurance that those who are appointed will take this place seriously and do the work.

[Lord True (Con)]

I can certainly agree with my noble friend and the implication of the question put earlier by the noble Baroness, Lady Smith. To be a Member of your Lordships’ House is one of the highest privileges that any person can ever receive. I have always tried to attend and do my duty here. I would hope that those who are appointed would behave in the same way.

[Lord Newby (LD)]

My Lords, is it the Minister’s view that, to protect the integrity of your Lordships’ House, the Prime Minister should always follow the advice of the Appointments Commission?

[Lord True (Con)]

My Lords, any Prime Minister would normally pay heed to the advice, as this Prime Minister has made clear. There is a particular case to which your Lordships continually return, where the Prime Minister made an appointment on his own judgment. I defend that particular person; he plays a valuable role in our House.

[Lord Burns (CB)]

Since the establishment of the Lord Speaker’s committee, some three-quarters of political appointments have been made to the Conservative Benches. There are now 89 more Conservative Members than Labour Members and there are more Conservative Members than Labour and Liberal Democrat Members combined. If there were to be a change of Government at the next election and similar partisan behaviour were to continue, would the Minister be comfortable with a House of 900 or more Members?

[Lord True (Con)]

My Lords, the reality of this House is who comes here and who works. Sometimes, those who do not come here very often make enormous contributions; I can think of a very distinguished scientist who comes on occasion. The Prime Minister has appointed—I should say recommended; Prime Ministers do not appoint—91 Peers since he became Prime Minister. That is not out of order with numbers in the past.

[Lord Cormack (Con)]

Would my noble friend accept that, at the moment we are in a—to use the word correctly—unique situation? We have a Prime Minister who we know is going. Can my noble friend assure the House that, whatever the Prime Minister does with a resignation honours list, to which Prime Ministers are entitled by tradition, he will not issue another list while he is the caretaker of No. 10 Downing Street?

[Lord True (Con)]

My Lords, the Prime Minister is the Prime Minister and the Queen’s principal adviser. It is for the Prime Minister of the day to advise the sovereign on appointments to your Lordships’ House. I observe that, were there to be a resignation honours list—these things are all speculative—it is highly unlikely that people in other parties would be on it.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I follow what the noble Lord, Lord Burns, has said about the numbers, given that the Conservatives already outnumber the joint Opposition. There is a likelihood that Labour will form the next Government. That would offer two choice: either we have to do exactly the same and stuff this place to get the business through—which is not in the interests of this House—or there would be a major and rather dramatic cull of the sort that might not support the work of this House or our democratic function. Can the Minister take back the very serious implications of what will happen if the continuing dominance of the present Government outweighs the Opposition to the extent that they do at the moment?

[Lord True (Con)]

My Lords, I did not notice that dominance in the massive number of defeats suffered by the Government in your Lordships’ House in the last Session. However, the noble Baroness, whose wisdom and experience I always heed, makes an important point: your Lordships’ House is a House that advises and has the capacity to ask the other House to think again; its conduct must be based on restraint and, above all, a good understanding across the Front Benches between Her Majesty’s loyal Opposition and the Government of the time. Historically, this was founded in the arrangement known as the Salisbury/Addison convention. I hope that we will continue to heed that doctrine, whoever is in office.

[Lord Balfe (Con)]

My Lords, when I came into this House, I was told by the Conservative Chief Whip that the difference between this House and the Commons was that in the Lords you had to win arguments to win votes. It seems that we are moving towards an untenable situation where one party in this House is trying to get a majority.

Will the incoming Prime Minister commit to working with this House to achieve the aim of the Burns report? That aim was to have a responsible second House that can challenge the Government; although, as my noble friend Lord Cormack and I both know, in the final event we accept the primacy of the elected Chamber. All we are asking for is balance. When I am told the Labour Benches are going to be strengthened by eight new Peers when we get 20, I am not sure that is balance.

[Lord True (Con)]

My Lords, I am not certain it is the role of your Lordships’ House to challenge the other place, although I agreed with the later points made by my noble friend. I believe your Lordships’ House worries at this question too much. I repeat that I do not believe fundamentally—as I have said many times from this Dispatch Box—that your Lordships’ House, which is unelected, can aspire to dictate who and how many Members are in it.

[Lord Winston (Lab)]

My Lords, the Minister referred to the numbers of government defeats in recent Sessions. Would that not be a case for refreshing the Government Front Bench, rather than the Opposition Front Bench?

[Lord True (Con)]

My Lords, there is an instant when you are thinking, then you have to stand up and give a reply to your Lordships’ always-penetrating questions. I was going to say in response to my noble friend Lord Balfe that I must have been pretty awful at putting arguments from this Dispatch Box because I have lost quite a few. I think the phrase is: “them’s the breaks”. We listen to the arguments put forward by your Lordships. I have had the privilege of taking—and am currently taking—legislation through your Lordships’ House, and have gained very much from the engagement and events with Peers on all sides, and indeed in Her Majesty’s Opposition.

[Lord Wallace of Saltaire (LD)]

My Lords, the Minister makes the best of sometimes rather weak cases when putting them forward. He knows the Prime Minister much better than I do. Does he occasionally wonder whether the Prime Minister—a declared disruptor of our institutions—wants to undermine the current constitution of our second Chamber by flooding us with more and more appointments, and whether that will push us towards the next stage of much-needed reform?

[Lord True (Con)]

My Lords, disruption is in the eye of the beholder. The historical policy of the Liberal Democrats is to replace your Lordships’ House with an elected Chamber.

[Lord Randall of Uxbridge (Con)]

My Lords, if he has the figures, or if he knows, can my noble friend say how many Peers previous Prime Ministers appointed? How many Peers were appointed by Tony Blair, for example?

[Lord True (Con)]

My Lords, it was 374.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, further to the excellent question from the noble Lord, Lord Forsyth, will the Minister admit that there is a genuine problem with a perception of a Peerage as merely an honour one above a knighthood? The reality is that we need people who will be working Peers and who will scrutinise legislation and question the Government. Surely it is right to ask anyone who is nominated to membership of this place for a guarantee that they will attend at least a minimum number of sittings and, as far as is possible, play a proper and full part in our work.

[Lord True (Con)]

My Lords, I know that many of your Lordships feel that way, and I have intimated what I think about that in one of my earlier answers. Having been an observer of your Lordships’ House for a long time before I had the honour of becoming a Member, I can put the point that, while it is true that there are some noble Lords who come here infrequently, they none the less make very major contributions to specific and specialised debates. In addressing the challenge put forward by the noble Lord opposite, I beg your Lordships to recognise that quantity of speech is not necessarily consonant with value or quality of contribution.

[Baroness Jenkin of Kennington (Con)]

My Lords, only a matter of months ago, the Prime Minister said:

“There is one ‘first’ that is still long overdue and that is the moment when—for the first time—we finally achieve 50:50 … in our Parliament.”


The only place in which the Prime Minister has the power and opportunity to make progress towards this ambition is here in your Lordships’ House. Like other noble Lords, I hope he will show restraint but, if there are more Members to come, it is worth noting that he has so far appointed seven women and 29 men to the Conservative Benches. It is not too late to put this right. Does my noble friend the Minister agree that a new list is an opportunity to redress this balance?

[Lord True (Con)]

My Lords, my noble friend makes a very good point, to which every past, present and future Prime Minister should pay heed: this House is enriched by all manner of diversity. I strongly agree with what she said about the great importance of a full contribution by women in your Lordships’ House.

Heatwave Response

Lord True Excerpts

Thursday 21st July 2022 Lords Chamber

[The Minister of State, Cabinet Office (Lord True) (Con)]

I am very grateful to the noble Baroness. I entirely endorse what she said about the horrific nature of some of the pictures and films we saw, behind each of which is a person whose life has been affected; our hearts go out to all those people. I also wholly agree with what she said about the role of fire services in this particular instance, as well as all the other emergency and response services, which have worked so hard during those events.

I take the point the noble Baroness made about needing to learn lessons, and hopefully this will be one of the things that feeds into the new resilience strategy under preparation at the moment. I can certainly assure her that, in both the national security risk assessment and our work on resilience, the lessons of the last few days will be taken into account. I am grateful for what she said about those who have worked so hard.

[Lord Wallace of Saltaire (LD)]

My Lords, the response to this extraordinary event has been extremely good. I hope the Minister will agree with me that the local responses were as important as the national effort. This reinforces the argument that we need to pay more attention to ensuring that our local authorities, their public health officers and others play a larger role and have the resources necessary to help their communities, because not everything can be done from London or Whitehall.

I hope that the events of the last two or three days have finally killed off the views of climate change deniers and those in the Minister’s own party who say that climate change adaptation is better than attempts to stop the transition in its tracks. While a more active Government would mean a larger state, that is less disastrous, they would argue, than climate change. I hope that he would also agree that the active interventions needed to stop climate change will involve a good deal of long-term public investment and that this may need to take priority over tax cuts. Those who insist that tax cuts are what come first under any circumstance—which seems to be the major theme of the current Conservative leadership contest—should take account of what we need to do if we are to adapt to climate change. This includes water storage—which the east of England in particular needs to invest in more—and ways of changing the built environment, particularly by greening our cities and providing houses and flats built not just for keeping warm but for keeping cool in the summer by, for example, reducing the amount of glass. In the longer term, a whole range of measures will be needed to ensure that we cope with the international transition. Can the Minister tell us a little more about the national resilience strategy: how do the Government plan to present that, and how will it engage a national conversation on the very substantial transition we need to make over the next five to 10 years?

[Lord True (Con)]

My Lords, I am grateful to the noble Lord for his questions, and he knows that I share his deep and profound respect and affection for local government and the astonishing public service given by local government officers and councillors up and down this country. The local resilience forums referred to by the noble Baroness, Lady Smith of Basildon, yesterday have performed admirably—I endorse what was said—during this response and are mitigating almost all the problems before escalation. DLUHC and partners held four resilience co-ordination group meetings, some of which were attended by the Secretary of State, and strategic co-ordination groups have overseen the local response. We have also welcomed co-operation with the devolved Administrations.

On the noble Lord’s broader points, I speak for Her Majesty’s Government, not for who one might want to lead a future Government. This Government, under the leadership of my right honourable friend Mr Johnson, have been, as I said earlier in the week, absolutely at the forefront of progress towards net zero. Our objective is that, by 2030, 95% of British electricity will be low-carbon. We are looking for 40,000 more jobs in the clean industries—a figure that we think will reach almost half a million by 2030. COP 26 shows the deep commitment of this Government to that battle. The resilience strategy is nearing completion and will be published after the Recess. I cannot advise your Lordships on the actual timing and date of its publication, but work is well advanced.

[Viscount Stansgate (Lab)]

My Lords, we have all seen the dramatic pictures of this week’s extreme heatwave, and I pay tribute to all those involved in trying to deal with it, but perhaps I might bring to the House’s attention other aspects that have not been seen. For example, I do not know whether your Lordships know this but a major London hospital this week lost all its computing power, and all the back-up servers went down. By any standards, that is a failure of real importance. It is not just the dramatic television pictures that we need to worry about. As a member of the Joint Committee on the National Security Strategy, I can say that we are examining the issues of resilience in great detail, and I dare say that the House will have other opportunities to debate it, but will the Minister take back from this exchange the fact that some really important things can go wrong that you do not see?

[Lord True (Con)]

As ever, the noble Viscount speaks wise words. I shall take back what he said. The reality is that, despite the pressures that there were in various places, the NHS emergency call handlers dealt with record numbers of calls to 999. All those public servants involved have done an outstanding job. One thing that helped was that the advance warning process worked very well, and people were able to prepare. Indeed, the weather forecasters take a bit of a pasting in this country—it is a favourite pub conversation—but I think that they did pretty well on this occasion, enabling everyone to be put on the right footing. However, I agree with the noble Viscount that there are issues that do not necessarily always come to the forefront, and all of them must be swept in and considered as we prepare for future similar events. I have no doubt about that.

[Lord Krebs (CB)]

My Lords, according to climate change risk assessment evidence produced by the Climate Change Committee every five years, up to 90% of hospital wards in this country are at risk of overheating, because they are not designed for the kind of weather that we are going to get in future. Could the Minister tell us how many of the 40 new hospitals that the Government have committed to build by 2030 will be built in a way that is resilient to extreme heat?

[Lord True (Con)]

My Lords, I can hear some chuckling about the 40 new hospitals, but I have no doubt that those facilities will be built and must be built. Setting the chuckling aside, the serious question put by the noble Lord is one that I shall take away and seek advice on. Obviously, it is not my department that is supervising that, but the noble Lord makes an important point, and I shall report back to him on it.

We must be responsive to the challenge of climate change. However, we must not forget that there are other challenges at the other end of the spectrum. We also need to continue to protect elderly people against the effects of cold in winter. It is very easy to obsess about extreme heat now, and rightly so, but other dangers also lurk in the natural world that we inhabit.

[Lord Trefgarne (Con)]

My Lords, we read that a comparatively small number of people had their houses either completely destroyed or very seriously damaged. Should not special provisions be made for such people in the circumstances that my noble friend has described?

[Lord True (Con)]

My Lords, the reports were certainly shocking. At the moment, the data is provisional, but we expect there to be up to 100 damaged properties, with at least 41 damaged and destroyed in London alone. In the wildfire in Wennington, Essex, 88 properties were evacuated and 15 damaged and destroyed. Data is provisional at the moment, and we will have to watch that as it comes in.

As for what is done in individual cases, every one of those cases will vary, and I do not think that it is for me at the Dispatch Box to say what might or might not happen in the individual circumstances of a particular family whose house has been destroyed or damaged. I hope that all the authorities concerned will approach those families with the utmost sensitivity and understanding.

[The Lord Bishop of St Albans]

My Lords, it is right that we think about the effect on human beings, but these high temperatures have a huge effect on our agricultural sector, particularly on livestock. Extreme heat reduces milk yields from cattle, for example, and reduces fertility and increases the number of miscarriages. What work is being done by government scientists to prepare our agriculture industry if this continues, and what advice is being given in the short term to help our first-class British agriculture sector adapt and continue to provide the food as it does so well?

[Lord True (Con)]

The right reverend Prelate makes an important point, as did the noble Lord, Lord Krebs, earlier. I regret that I am not in possession of advice on that point at the moment, but I shall certainly pass on his comments to my colleagues in Defra, and will do so with some urgency, because he makes an extremely important point. The countryside suffers as well as the urban areas, and we need to be prudent and thoughtful custodians wherever we live.

[Lord Harris of Haringey (Lab)]

My Lords, I refer to my interests in the register. The Minister has several times referred to the importance of local resilience forums. He has been asked in the past what their current level of funding is, and whether it has been maintained. Could he also tell us whether that funding is going to be properly ring-fenced? The other day I asked him about the Civil Contingencies Secretariat. Can he tell us whether that still exists, or whether it is continuing but on a basis of a 30% vacancy factor?

[Lord True (Con)]

My Lords, I very much regret that, although I wrote to the noble Baroness opposite about the resilience forums and funding, which is embedded and due to continue, I did not reply on the question that the noble Lord has asked and has asked again. That is a deep fault within me; I apologise to him and to the House, and I shall come back with an answer on the point that he asked about. I hope that he will pardon me for a day or two, until I get that information to him.

[Baroness McIntosh of Pickering (Con)]

My Lords, I support entirely what the right reverend Prelate said with regard to farming and livestock, given the extreme conditions this week. The last time we had a drought and appointed a Drought Minister, it was followed by significant floods. Will my noble friend support the idea of considering a national grid for water, like the regional grid set up by Yorkshire Water in the whole Yorkshire region, which is able to feed water through pumps and pipes to those areas where there is water stress or shortage? That would enable areas of the UK which suffer water stress, such as East Anglia and the south-east of England, to benefit in this way in future years, if this is going to be a regular occurrence.

[Lord True (Con)]

My Lords, again, I am tempted to speak outside my brief. Perhaps I could express a personal response: the water that

“droppeth as the gentle rain from heaven”

is a precious resource given to us and to people in every nation, and we have the duty to do the best that we conceivably can to preserve that precious resource in our own nation, as well as an enormous responsibility to bring the gift of clean water to every person and nation of the world.

[Baroness Neville-Rolfe (Con)]

Could the lessons learned, or the resilience strategy, study the weather this week in detail and the local impacts and assess the likely frequency of future heatwaves? Has the Gulf Stream changed; is hot weather more likely to be pushed up from Europe than before? We need to invest in the right things and not the wrong things and I think a proper assessment of the weather, rather than ex cathedra statements about climate change, are really needed if we are to do the right thing.

[Lord True (Con)]

My Lords, my noble friend has just made a point, as did so many noble Lords who have contributed, that should not be characterised as a sceptical point, or whatever, as so often those kinds of responses are. Our response should certainly be scientific and based on information and I am not going to talk at this Dispatch Box, as a member of this Government, about what might be the meteorological reasons for this particular invasion of Sahara air. Obviously, the jet stream this year is deflected in an unusual way, but I agree that we should study these things carefully and I hope that my colleagues and the Government’s scientific and meteorological advisers will continue to do so.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, the Minister said, quite rightly, that this crisis was well predicted in advance. In the event of any major crises in the future that are either predicted or predictable, what arrangements could there be for this House to return to hybrid operation, so that people who are not able to make it to London could fully participate? There has been some concern over the last couple of days that some people were unable to make it here.

[Lord True (Con)]

My Lords, again, I think that is a matter not for the Executive but for the parliamentary authorities. I am sure they will have heard the noble Lord, who is a most assiduous attender—nobody will have thought of him when people who do not attend very much were spoken about earlier. I think people have heard what he said. Obviously, these things have to be held in balance. Overall, as a parliamentarian and someone who loves your Lordships’ House, I prefer to be able to look somebody in the eye, hear what they say and accept the challenge. I think that is the proper role of Parliament, but I am sure the authorities will consider what the noble Lord has said.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, first, there was a comment earlier that some noble Lords derided concerns about extreme weather. I actually heard those comments and saw them as balanced and proportionate. Will the Minister comment on another danger, which is scaremongering and sensationalism that can create a climate of fear? I watched the news with pictures that were described as, “We are witnessing Armageddon.” Many elderly people, children and so on must have been very frightened when they saw that, so is that a different kind of danger?

Secondly, on infrastructure, it was certainly shown up to be a bit creaky. On Sunday, before the heatwave, the trains I was trying to get were not running because of the weather, and neither were they running yesterday, after the heatwave. Could there be an opportunity for the Government to use their levelling-up initiative to improve infrastructure so that it can cope with weather challenges?

[Lord True (Con)]

My Lords, there were number of points there, and I could quite easily be tempted to go rather further than I should. I said when we were discussing this earlier in the week that I do not really care for project fear in any form. My mother used to tell me the tale of the boy who cried wolf. There is a wolf, actually—there is climate change—but I think it is very important that this be tempered. People can be easily frightened and should not be frightened, because the response that needs to be made is a collective, international response and individuals should not be subjected to unreasonable stress by exaggerated and alarmist reports; there is a balance there.

As for trains on Sunday, it would be a fine thing to be able to get to Stansted Airport on a Sunday, would it not? UK rails are stressed to withstand temperatures of 27 degrees, which is the mean summer rail temperature in this country. Obviously, other countries, where the kind of weather we had earlier this week is normal, stress their rails to higher degrees, but obviously if you stress your rails to too high a temperature, you have problems at the lower level and we are told that there is the wrong kind of snow on the line. Network Rail needs to consider, and I am sure is considering, these matters. Three-quarters of UK track is modern and set into concrete sleepers, which helps prevent rails buckling in the hot temperatures, but I am sure the good railway people will have heard what the noble Baroness said.

[Baroness Healy of Primrose Hill (Lab)]

My Lords, I declare an interest as my husband represents a part of east London where there were two devastating fires. I have seen film footage by the fire brigade of the two communities and it is complete devastation. I hope the Government can manage to provide some extra funding, because it looks like a complete war zone. People would have lost their lives had the local community not managed to help evacuate them just in time. It was literally just in time and it is complete devastation—they have lost everything. If the Government could see their way to providing some extra funds to the local authorities, I think it would be appropriate.

[Lord True (Con)]

My Lords, I greatly welcome what the noble Baroness has said, and I tried to make the same point earlier: 45 members of the public at Wennington had to self-evacuate; 10 members of the public were evacuated to a rest centre; and 10 firefighters were affected by heat exhaustion, two of whom went to hospital. It was a horrific and shocking event for those involved. I hear what the noble Baroness said but I can only repeat what I said earlier: that I hope all the authorities involved—some of those will be private as well as public—will address with sensitivity the cases she referred to.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the Minister referred to difficulties getting to Stansted Airport on Sunday. That is, of course, contributing to the problem, whether you travel by rail or road. He may be aware of the report this morning from UCL and LSE academics and Carbon Tracker showing that the oil and gas industry has delivered profits of £2.3 billion a day over the last 50 years to multinational companies and petrostates: that is a total of $52 trillion. Should that industry not be paying a lot more in tax instead of, in the UK, just since the Paris agreement was signed, the Government subsidising it to the tune of £13.6 billion?

Drawing on the point made by the noble Baroness, will not the people of Wennington and the other parts of east London and the other parts of the country so affected by these events, by wildfires that are entirely outside the British general experience, be thinking that those oil and gas companies should be paying into our long-awaited national resilience strategy and making a contribution for the conditions of the Anthropocene that they played a huge part in creating?

--- Later in debate ---

[Lord True (Con)]

My Lords, the noble Baroness comes from an extremely radical anti-capital stance, which she has exemplified. I will not be an advocate for any particular company, but I think many of the companies in the industry concerned are bending many tens of millions of pounds towards investment in renewable and positive energy developments. It was incautious of me to mention Stansted Airport—it was a remark that was made to me this morning when I was coming to the office—but I sincerely hope that the Just Stop Oil protesters who blocked the M25 arrived either on foot or by bicycle.

Extreme Heat Preparedness

Lord True Excerpts

Tuesday 19th July 2022 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, every season brings new weather challenges. We have had homes without power because of strong winds, devastation from floods and, this week, the chaos from extreme temperatures. But the Statement, which the Minister must be grateful he does not have to read out, is so complacent: we are “showing the way”, “forging ahead” of other countries and have “taken the lead”. That kind of complacency does not give confidence that the Government recognise the scale of what is needed, particularly when the Prime Minister does not even attend COBRA meetings. The noble Baroness, Lady Brown, the deputy chair of the Committee on Climate Change, said:

“We’ve been telling the government for over 10 years that we are nothing like well enough prepared … for the really hot weather we are seeing now”.


I have one question for the Minister. In the unread Answer, there is a reference to the importance of the local resilience forums and the work they do. What has been the increase, or otherwise, in funding and support from central government in the last five years? If he does not have that information, will he place it in the Library?

[The Minister of State, Cabinet Office (Lord True) (Con)]

I will certainly place it in the Library, because I regret to say that I do not have it in my folder.

[Lord Harris of Haringey (Lab)]

My Lords, I refer to my interests in the register. Can the Minister confirm that the Civil Contingencies Secretariat in the Cabinet Office has been operating 30% under strength for a number of months and that, in addition, it was wound up last week? Who is minding the shop?

[Lord True (Con)]

My Lords, so far as the management of the response to the heatwave is concerned, that is my right honourable friend the Chancellor of the Duchy of Lancaster. Overall responsibility for the longer-term net-zero objectives of this Government, which are greater than those of any Government before, is carried forward by Defra. The implication of the noble Lord’s question is that there might be some failure. I pay tribute to all those involved in planning for this heatwave. The forward warnings and information for the public have been very clear, and the emergency services have responded extraordinarily well. I express my thanks to them.

[Lord Forsyth of Drumlean (Con)]

My Lords, at the risk of making myself unpopular, does my noble friend not think that there is something of an overreaction to two days of extreme temperatures? I remember the summer of 1976 because that is when I proposed to my wife, who I have been married to for 45 years. We had two months of very extreme temperatures and somehow, we did not have people going out painting the rails white, people not turning up for work and airlines not operating, so should we not get a sense of proportion here and recognise that the people being held up at airports are all trying to get to countries where it is even hotter?

[Lord True (Con)]

One of my neighbours said that to me only yesterday; he was just off to a hotter place. Of course, I remember the bloom of youth, and the summer of 1976 was wonderful and memorable in many ways. Let us not forget that many people, if they behave sensibly and reasonably, can enjoy those warm summer days that they dreamt of in the cold winter nights of November and December—but many people are vulnerable and need care, support and protection. That is the responsibility of the Government so, although I accept what my noble friend says, we should all be mindful that there is danger in excessive and exceptional heat. The Government, with the emergency services and others, are seeking to respond to it.

[Baroness Pinnock (LD)]

My Lords, surely the issue is that the current heatwave is yet another example of climate change; I am sure the Minister will agree on that. But the Government seem to be acting Janus-like to net zero. One face is the leadership of COP 26. The other is, for example, the Prime Minister’s positive support for a new coal mine in Cumbria and extending oil and gas licences in the North Sea. The International Energy Agency says that no new fossil fuel developments can proceed if net zero by 2050 is to be achieved. Which face of Janus will it be for the Government?

[Lord True (Con)]

My Lords, there are several strands tied up in that question. We have some exceptional hot days in July. We must respond to that and are doing the immediate response. Then there is a separate strand when the noble Baroness talks about the longer-term threat of climate change. The party opposite was among those beating the tam-tam to remove from office my right honourable friend the Prime Minister, who has pushed through the strongest commitments and the most specific and active support for COP 26 by any Government in history. As for what the noble Baroness says about a coal mine, the Government remain absolutely committed to net zero. Does the noble Baroness not understand that we must balance the issues across the energy sector and the global economy caused by the illegal invasion of Ukraine? We must ensure that in the immediate future we have a diverse and resilient energy supply chain to withstand broader impact.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, can the Minister indicate the exact work done with the devolved Administrations and Whitehall on meeting net-zero targets? My noble friend Lady Smith referred to all the serious extreme weather events that have taken place over the last year. Can the Minister outline the exact work being done to complement what happened in Glasgow last November?

--- Later in debate ---

[Lord True (Con)]

My Lords, I know that information on the specific number of meetings that have taken place between Ministers and the devolved Administrations has been given to the House on a number of occasions. I can absolutely assure the noble Baroness that in these circumstances we are and have been working closely with the devolved Administrations, and we will continue to do so.

[Lord Robathan (Con)]

My Lords, I have been banging on and boring on about climate change for 30 years—at first it was considered a rather eccentric obsession—but the Government’s reaction to this is extraordinary. This is not a nanny state. Does my noble friend think there is anybody who does not understand that if you are getting dehydrated you drink water and if you are hot in the sun you get into the shade? Everybody knows that. We do not need an industry pursuing it. I agree entirely with my noble friend Lord Forsyth. Does the Minister agree?

[Lord True (Con)]

My Lords, I agree with the common-sense advice that my noble friend gives. The British people are a wise people, just as they are a generous people, and I think they are perfectly capable of taking common-sense measures. But there is no harm in those in positions to advise, whether in the health service or elsewhere, giving health advice. For example, heat can be specifically dangerous for those with particular cardiovascular conditions. There needs to be a mix but ultimately, we rely on the common sense and good sense of the British people.

[Lord Winston (Lab)]

My Lords, do the Government not consider that we should look at the other side of the coin? Over the last month we have seen a huge amount of energy wasted that we have not been able to secure or store. Should the Government not be doing much more to try to protect our storage and encourage investment and research in this very area? This energy is being completely wasted, to the detriment of humanity.

[Lord True (Con)]

My Lords, the noble Lord takes me into a wider area of policy outside my responsibilities. In principle, obviously, I agree with the point that he makes. The conservation of good is something that every Government and person across the world should aspire to. I will certainly make sure that my colleagues in the appropriate department are made aware of his observations.

[Baroness O’Loan (CB)]

My Lords, many of us in your Lordships’ House are of a significant age. The message that has been given in the media and generally is one of serious danger to the elderly and excessive deaths. Could the Minister ensure that the message is reframed to put the emphasis on the simple things you can do, rather than frightening people into being unable to continue with their normal lives?

[Lord True (Con)]

I strongly agree with that. I deplore “Project Fear” in any form when it comes up. The noble Baroness is right that we need simple measures that we do not necessarily need to be told about by the Government, such as walking in the shade and drinking plenty of water. These are the things that one can do to make things better for the individual. Ultimately, it comes down to the individual and how they cope, and older people do have difficulties.

I am conscious that, standing here as the Minister for heat, I am a successor to Mr Denis Howell, who was Minister for Drought not long ago, so I confidently hope that there may be some water tomorrow falling from the skies.

Carer’s Leave: Government Departments

Lord True Excerpts

Tuesday 19th July 2022 Lords Chamber

[Baroness Pitkeathley]

To ask Her Majesty’s Government how many government departments offer (1) paid, or (2) unpaid, leave to their staff who have caring responsibilities.

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, the statistics are not centrally collected but all government departments have policies on special leave. These enable managers to give paid and unpaid special leave to support employees in a variety of circumstances, including where they have caring responsibilities.

[Baroness Pitkeathley (Lab)]

My Lords, I am glad to hear that many government departments make special arrangements for carers, as do many private sector organisations, but the situation is still far too patchy, discretionary and dependent on employers’ good will rather than the rights of the carers concerned. When will the Government fulfil the promise that they made in their 2019 manifesto to introduce rights to unpaid leave for carers, and recognise that there are sound economic reasons for doing this in terms of retaining carers who would otherwise have to give up paid work—something that the nation can ill afford at this time of severe staff shortages?

[Lord True (Con)]

My Lords, we remain committed to legislation to deliver on our commitments on employment, including on carer’s leave, as parliamentary time allows. We are aware in this context of the Private Member’s Bill on carer’s leave in another place; we will look closely at whether we can support it in this Session.

[Baroness Jolly (LD)]

My Lords, every day, many of us walk past a poster asking if we are a carer on our way into the House. ParliCare offers support to those staff who work in both Houses. Can the Minister tell the House how many carers are supported on this scheme and what form that support takes?

[Lord True (Con)]

My Lords, if the question is about arrangements in Parliament, I remind the noble Baroness that I am answering for the Executive here. As I have told the House, there are supportive arrangements in the Civil Service, but I am afraid I cannot answer specifically on the numbers in the parliamentary system.

[Baroness Smith of Basildon (Lab)]

My Lords, after looking at today’s Question, I looked up the Conservative Party’s 2019 manifesto. Page 12 is full of ambitious pledges for carers but the one referred to by my noble friend Lady Pitkeathley is a modest proposal:

“We will also extend the entitlement to leave for unpaid carers, the majority of whom are women, to one week.”


I wonder how much parliamentary time it would take to get legislation through to give one week of unpaid leave to carers. May I let the Minister know that, on this side of the House, we will offer our support to give a fair wind to such a Bill? We have seen the online harms Bill delayed but surely, with a new Prime Minister in place, there will plenty of parliamentary time as the legislative programme gets juggled around.

[Lord True (Con)]

My Lords, I have indicated that the Government will look at the Private Member’s Bill on carer’s leave, which relates to five days. The original Question was about government departments. Obviously, managers in government departments have case-by-case discretion to give as much leave as they deem necessary within the special leave limits.

[The Lord Bishop of Carlisle]

My Lords, we are all aware of the huge contribution to the nation’s health and economy made by unpaid carers, including those who combine caring responsibilities with other paid employment. This issue is currently being explored by both the Select Committee of your Lordships’ House and an Archbishops’ Commission. Does the Minister agree that, whenever possible, as well as paid or unpaid leave, flexible working arrangements for those with caring responsibilities are in everybody’s best interests?

[Lord True (Con)]

My Lords, I agree with the right reverend Prelate. Flexible working is widespread in the Civil Service. Civil Service carers are able to discuss their needs for flexible working and have them recorded in a carer’s passport. Like all employees with 26 weeks’ continuous service, they have the statutory right to request a change to the hours, timing or location of their work. The Government recently consulted on measures to reform the right to request flexible working; we will publish a response to it in due course. I assure the right reverend Prelate that we take this matter seriously.

[Baroness Warwick of Undercliffe (Lab)]

My Lords, in evidence to your Lordships’ Adult Social Care Select Committee, we have heard that carers are exhausted, unable to get any respite, face poverty and struggle to juggle care and working. Yet these carers take a huge weight off the National Health Service and provide care that would otherwise have to be paid for at taxpayers’ expense. Some good employers, including some of the Civil Service, recognise the pressures on them but many do not. Carers are forced either to reduce their working hours or to leave work altogether. Will the Minister acknowledge the urgency of this and introduce legislation as soon as possible to at least begin to sort this out?

[Lord True (Con)]

My Lords, as I indicated, we are looking at the Private Member’s Bill in the other place. I agree with all noble Lords who pay tribute to the extraordinary work done by carers—those in employment and those not in employment. I remember my beloved mother in those circumstances and what she did for my father. We in government are human. We understand the immense sacrifices made by carers and will do the best that we conceivably can.

[The Lord Speaker (Lord McFall of Alcluith)]

The noble Lord, Lord Jones of Cheltenham, is contributing remotely.

--- Later in debate ---

[Baroness Meacher (CB)]

My Lords, when the Government consider the Private Member’s Bill on this issue, will they take full account of the huge savings to the taxpayer enabled by unpaid carers? If they will, does the Minister agree that they are bound to agree to the proposal of the noble Baroness, Lady Pitkeathley?

[Lord True (Con)]

My Lords, I am responsible for the Civil Service, but obviously I hear the sentiment of the House. I have indicated the way forward. Some of the things that the great legion of carers does you cannot place a monetary value on. You cannot cost love. However, I take very firmly the points that the noble Baroness has made.

[Baroness Lister of Burtersett (Lab)]

My Lords, I was heartened by what the Minister said about the Private Member’s Bill, but what criteria will the Government use to decide whether to support it? Carer’s leave should not be thought of as special leave. Caring is fundamental to human life, particularly the lives of many women. Under what circumstances would the Government not support the Bill?

[Lord True (Con)]

My Lords, that is a matter for colleagues across the Government. I have reported to the House the current situation. It may be no accident that the Bill has come forward but I undertake, as far as I can on behalf of my colleagues, that we will be as accommodating as we can be to that Bill.

[Lord Forsyth of Drumlean (Con)]

My Lords, does my noble friend accept that the reason we see ambulances stacked outside hospitals and people unable to get ambulances is that there is inadequate provision of care for people at home, whether from their family or from elsewhere? Would it not be a good idea for the Cabinet Office to look at how we resolve this problem, which is resulting in people not being treated, blocking beds and not being able to access emergency services?

[Lord True (Con)]

My Lords, I think the Government should give attention to that. Regarding my being responsible for the Civil Service in this respect, it is a collective responsibility. The problem my noble friend refers to is one of which too many people are all too aware.

[Lord Hunt of Kings Heath (Lab)]

My Lords, does the noble Lord agree that one of the problems with the national insurance hike, which was allegedly to pay for social care, is that most of that money in the first few years will go to the National Health Service and very little, if any, will support carers, who are doing such a great job?

[Lord True (Con)]

My Lords, it remains to be seen how that policy goes forward. Obviously, as the noble Lord said, the Government are implementing a comprehensive reform programme and investing £5.4 billion over three years from April 2022. He has expressed a certain cynicism about it, but I hope it will lead to improvements in social care more broadly.

[Lord Flight (Con)]

My Lords, there is one particularly difficult issue. If people are working and take time off, they expect their remuneration to be reduced accordingly. However, equally, if they were unable to be part-time carers, someone else would have to do the work. Care, particularly mothers’ care, should be provided and not rationed according to the jobs that people do.

[Lord True (Con)]

My Lords, I am not responsible for the degree of enlightenment or otherwise of employers, but I am sure that many people will have heard the words of my noble friend. The Government, in all humility, want to be a good employer and act as a model to other employers. That is why providing paid special leave for carers is part of a wider suite of employee benefits which helps us attract—and, more importantly, retain—good people in our great Civil Service.

Procurement Bill [HL]

Lord True Excerpts

Committee stage
Monday 18th July 2022 Grand Committee

Moved by

[Lord True]

89: Clause 15, page 11, line 30, leave out from “must” to end of line 31 and insert “in relation to the award—
(a) treat the supplier as an excluded supplier for the purpose of—(i) assessing tenders under section 18 (competitive award), or(ii) awarding a contract under section 40 or 42 (direct award), and(b) exclude the supplier from participating in, or progressing as part of, any competitive tendering procedure.”

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, this group seeks to deal with amendments relating to the process for excluding suppliers and with the debarment list. I recognise that there is considerable interest in this topic. Amendments relating to the grounds for the exclusion of suppliers will be dealt with separately in a later group. I look forward with interest to submissions from noble Lords, but there are a number of government amendments in this group.

Amendment 89 ensures that suppliers which gained an unavoidable unfair advantage through involvement in preliminary market engagement are excluded from the procurement in question.

Amendment 148 is consequential on Amendment 93, which was debated last week. Amendment 93 clarifies that the authority’s requirements and award criteria are two separate concepts.

Amendment 154 broadens the concept of an entity associated with the supplier for the purpose of the exclusion grounds. This concept covers entities which are being relied on to meet the conditions of participation and is expanded by this amendment to also cover entities which may not be involved in the delivery of the contract. An example would be a consortium member providing financial backing to the supplier in order to meet conditions of participation relating to financial capacity. This aligns the concept of associated entities with the existing concept in Clause 21. An exception is made in respect of exclusions for guarantors such as banks, where it would be inappropriate to consider the exclusion grounds.

Amendment 150 is the lead of 21 amendments which all serve to change the term “associated supplier” to “associated person” for the purposes of the exclusions regime. This is consequential on Amendment 154 because the entities being relied upon to meet the conditions of participation may not be involved in the actual delivery of the contract. It is therefore accurate to refer to them as “persons” rather than “suppliers”.

Amendments 151, 159 and 166 require contracting authorities to notify suppliers when they are considered to be excluded or excludable by virtue of an exclusion ground applying to an associated person or subcontractor. These amendments are linked to Amendments 168 and 171, which require ministerial consideration before a supplier is notified and given the opportunity to replace an associated supplier or subcontractor when they are considered by the contracting authority to be a threat to national security.

Amendment 162 requires contracting authorities to ask for details of intended subcontractors and to check whether any intended subcontractors are on the debarment list, as part of determining whether the supplier is excluded or excludable. Amendments 163, 164, 165 and 398 are consequential.

Amendment 169 corrects a drafting error which incorrectly described suppliers subject to the exclusion ground on national security as being “excluded” when they are in fact “excludable”. Amendment 170 is also a technical amendment.

Amendments 175, 182, and 414 clarify what it means to treat a supplier as an excluded supplier in relation to the award of a public contract. They make it clear that contracting authorities are required to disregard tenders from such suppliers and prevent such suppliers from participating in, or progressing as part of, any competitive tendering procedure.

Amendments 176 and 178 provide for the list of improper behaviour at subsection (4) of Clause 30 to be an exhaustive list. It is important to be clear on the circumstances in which a supplier has acted improperly, given that the consequences are exclusion. Amendment 339 removes financial and other resources of suppliers from the list of the matters that contracting authorities may have regard to in setting proportionate requirements for suppliers to provide particular evidence or information as to whether exclusion grounds apply and whether the circumstances giving rise to any application are likely to occur again. Proportionality is sufficiently and more appropriately achieved by having regard to the nature and complexity of the matters being assessed, which is also listed. This amendment aligns with the matters that contracting authorities must have regard to in considering whether a condition of participation is proportionate, as specified in Clause 21.

Amendment 349 is made at the request of Northern Ireland and provides that transferred Northern Ireland authorities should make notification of exclusion to a department in the Northern Ireland Executive that the authority considers most appropriate, rather than a Minister of the Crown. This is necessary to provide information to the relevant department, for example to consider a potential investigation of suppliers under Clause 57. Amendment 352 requires that a Minister of the Crown must consult with the Northern Ireland department that the Minister considers most appropriate —rather than any Northern Ireland department—before entering a supplier’s name on the debarment list or removing an entry from the debarment list following an application for removal under Clause 60.

Amendment 399 extends the circumstances in which there is an implied right for a contracting authority to terminate a contract where a subcontractor—which the supplier did not rely on to meet the conditions of participation—is an excluded or excludable supplier. The amendment includes circumstances where the authority checked the debarment list or asked for information about the subcontractor but did not know that the subcontractor was excluded or excludable prior to award.

Finally, Amendment 402 requires contracting authorities to seek the approval of a Minister of the Crown before terminating a contract on the basis of the discretionary exclusion ground of national security. This is necessary to align with the other circumstances in which ministerial approval must be sought before relying on this particular ground. I beg to move.

[Lord Coaker (Lab)]

In keeping with the obvious mood of the Committee, I actually do not want to say very much either on this particular group. The interest I had was in the amendment from the noble Lords, Lord Wallace and Lord Fox, in this group, on how excluded suppliers demonstrate their reliability following the application of an exclusion order, and the process of self-cleansing. I was particularly interested in what this process of self-cleansing means. I am presuming—from the Minister’s helpful introduction—that the company is excluded for X reason, and is told that in the notice that goes to an excludable supplier, and then it goes back to the Government and says, “We’ve undertaken the process of self-cleansing and therefore the problems that you highlighted with us are no longer applicable”. So, I wondered whether the Minister could say a little bit more about the process of self-cleansing, which was the element that I found a little bit vague, if I am honest, and goes with many of the problems we have: the Minister talks about a “proportionate response” from the Government, and those sorts of phrases, and again we get into the problem of definition.

The other point I will make concerns what the Minister rightly pointed out: Schedules 6 and 7 outline the grounds rather than the process. There are the mandatory grounds in Schedule 6 and the discretionary grounds in Schedule 7, both of which a contracting authority might think applies to it. On the grounds in these schedules, can the Minister give us an example of what the process or timescale will be and an example of how it would work? Presumably the Minister sends this to the contracting authority and says, for example, “We think you should be excluded because of this in Schedule 6”, and if the company says, “No, this isn’t the case”, a discussion takes place. It would be helpful for the Committee to understand this process.

Finally, can the Minister confirm that, as I read it, there is also an appeals process? If the Government decided that a firm or supplier should be excluded, am I right in saying that this decision could be appealed? If it is appealed, who is it appealed to—presumably not the same person who made the decision to exclude them in the first place? I am querying the independence of that appeal process and the amount of time that this would take. A little more detail would be useful on the matter of an “excluded supplier” and an “excludable supplier”.

I do not want to keep the Committee any longer on this group of amendments, because the Minister’s helpful outline clarified some of the points I would have made about why “person” changes to “supplier”. I look forward to the Minister’s response to my questions.

[Lord True (Con)]

My Lords, I think that in a test match that is called putting the spinner on early when the batsman is better at fending off fast bowling.

The noble Lord asked a number of questions, which I am not in a position to answer at this juncture. We believe that self-cleansing is an important process because exclusion is a risk-based measure as perceived; it is not a punishment. As such, suppliers should be encouraged to clean up their act and given the right to make the case that they addressed the risk of misconduct, or the other issues, occurring again. It is for contracting authorities to decide whether the evidence they have seen is sufficient to reassure themselves that the issues in question are unlikely to occur again. The noble Lord asked a further question about what happens should there be a difference of judgment. The formal position is that it is for the contracting authorities to decide whether self-cleansing has occurred.

It is not our intention to make the exclusion of suppliers more difficult for contracting authorities, because many noble Lords, on a number of subjects, have asked for the opportunity to exclude suppliers. The Bill seeks to ensure that all the relevant issues can be considered. We believe that suppliers will thereby be encouraged to take as much comprehensive action as possible to avoid recurrence if they seem to fall foul of these risks. I repeat: the decision must be made by the contracting authority, and the burden to present remedial evidence to avoid exclusion is on the supplier. The lack of remedial evidence—or if the remedial evidence is inadequate—may give the contracting authorities sufficient reason to conclude that the issues in question are likely to occur again. However, I will look very carefully at this flighted ball that the noble Lord has sent. We accept the need for guidance on self-cleansing to accompany the legislation, and can assure the noble Lord opposite that this will be published as part of the implementation package for the Bill.

I cannot ask the noble Lord, Lord Wallace, not to move his amendments, as he is not here, but I hope that is something of an answer to the noble Lord, who has amendments in this group.

[Lord Coaker (Lab)]

That is quite helpful. Further to that and to make sure I have understood, would an excluded or excludable supplier be put on a debarment list? I refer to Clause 61, which is titled “Debarment decisions: appeals”. Am I reading this right or have I got it wrong?

[Lord True (Con)]

We will come on to the details of debarment on a later group—on Clause 61, I believe. A supplier may certainly appeal against the decision of a Minister, who ultimately places the debarment list. On the process of self-cleansing, which we were talking about, the contracting authority, not the Government, undertakes exclusion. It will notify the supplier that a ground for exclusion applies; the supplier may then make representations and submit self-cleansing evidence, as I previously discussed. The contracting authority then weighs it up and decides on exclusion.

This is the further wrinkle that I had not answered in saying rather more words than the succinct selection I have been given, but it confirms what I was saying: the supplier may challenge, but through the courts under the remedies regime, if it disputes the contracting authority’s judgment on self-cleansing.

We will come on to debarment decisions and permanent exclusion on amendments after Clause 61, but certainly a supplier may appeal against a ministerial decision.

In moving government Amendment 89 in my name, I request that the other amendments are not moved.

Amendment 89 agreed.

--- Later in debate ---

Moved by

[Lord True]

90: Clause 16, page 11, line 33, leave out subsection (1) and insert—
“(1) If a contracting authority carries out preliminary market engagement, the authority must—(a) publish a preliminary market engagement notice before publishing a tender notice, or(b) provide reasons for not doing so in the tender notice.”

--- Later in debate ---

[Lord True (Con)]

My Lords, here I pay the penalty for the discussion we had before the Committee started: there are more government amendments that I must move in this group. I will beg to move a range of amendments today.

Government Amendments 90 and 91 make improvements to preliminary market engagement notices. Together they ensure that, where a contracting authority chooses not to publish a preliminary market engagement notice, a justification must be set out in any subsequent tender notice. I know this will be welcomed, particularly by small businesses, which often rely on early market engagement.

Government Amendment 277 makes provision for contract details notices. It removes a superfluous reference to contracts awarded under this part, which is unnecessary as the definition of a public contract in Clause 2 covers that which needs to be covered.

Government Amendments 278 to 281 correct a timing error in relation to the publication of a contract details notice for a light-touch contract. This will ensure that the contract details notice is published first, within 120 days of entering into the contract. The publication of the contract is required within 180 days of entering into it, allowing time for the contracting authority to make any necessary redactions before publication.

Government Amendments 282 to 286 are at the request of Northern Ireland and exclude transferred Northern Ireland authorities from the obligation to publish contracts above £2 million.

Government Amendment 287 is a minor drafting change, which better reflects the operation of the provisions.

Amendments 355, 356, 357 and 359 make changes to the requirements in Clauses 64 and 65 for contracting authorities to publish information about, respectively, compliance with the prompt payment obligation in Clause 63 and payments made under public contracts. Northern Ireland has chosen to derogate from both those requirements, so these amendments reflect that policy.

Government Amendment 358 makes it clear that the exemption for utilities in Clause 65(4)(a) applies to private utilities only. Government Amendment 403 clarifies that user-choice contracts which are directly awarded are not subject to the requirement to publish a contract termination notice.

Government Amendments 429 and 430 are technical amendments to Clause 79 to reflect consistent drafting practice and the fact that Northern Ireland has chosen to derogate from the below-threshold rules in Part 6 and so does not require the threshold-altering power in subsection (7).

Government Amendments 446 and 447 to Clause 84 also relate to Northern Ireland. Northern Ireland has chosen to derogate from the requirement for its contracting authorities to publish pipeline notices.

Government Amendment 457 inserts a new clause entitled “Data protection” after Clause 88. This is a now standard legislative provision that reiterates the need for those processing personal data under this Bill to comply with existing data protection legislation. As we discussed on an earlier group, I look forward to engagement with noble Lords opposite on issues of particular concern relating to processing and holding data. I beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have Amendment 445 in this group. This amendment is concerned with the challenge facing charities seeking to obtain contracts from public authorities. The Bill is ambitious in its aim to simplify procurement rules, which is very welcome, but it is important that it is done in a way which does not make it more difficult for small businesses and particularly charities successfully to bid for contracts.

We know from past experience with current contracting rules and law that charities experience some barriers here. I hope that in our discussions on the Procurement Bill it will be recognised that a large proportion of the voluntary sector is pretty fundamental to the delivery of public services—indeed, in some cases the voluntary sector is the leading provider of such services. For example, according to research commissioned by DCMS, voluntary and charitable organisations and social enterprises won 69% of the total value of contracts awarded for homeless services between April 2016 and March 2020, and 66% of the total value of contracts to support victims of domestic violence and sexual abuse.

We know that the voluntary sector can produce outstanding results; we know about its ability to build trusting and long-term relationships with communities that are often excluded, its focus on prevention, its versatility and its agility. So I welcome the requirement for contracting authorities to publish pipeline notices—the Minister referred to this in relation to one of his amendments today—but, given the utility of such notices for smaller providers and the market diversity and improved services that could be cultivated by giving smaller providers a chance to prepare the bid, we want transparency to be prioritised in the requirements to publish pipeline notices; hence my amendment.

My Amendment 449 is slightly different but it none the less raises issues in relation to the way in which public authorities engage with the private sector—or the independent sector, depending on how you look at it. This amendment arises from concerns that public bodies are failing to act within the spirit if not the letter of the freedom of information legislation in relation to procurement contracts.

I just want to refer the Minister to an openDemocracy report, published last year, which looked at the operation of the Freedom of Information Act in 2020. It found that

“2020 was the worst year on record for Freedom of Information Act transparency … Official statistics published by the Cabinet Office show that just 41% of FOI requests to central government departments and agencies were granted in full in 2020—the lowest proportion since records began in 2005 … The Cabinet Office is blocking requests from MPs about its use of public money to conduct political research … Stonewalling, a brutally effective tactic for evading FOI, is increasingly prevalent … Government departments are cynically exploiting a legal loophole to deny timely access to information in the name of the ‘public interest’ … Government departments are failing to comply with a legal requirement to work constructively with requesters”.

The FoI Act was meant to be a safety net for members of the public so that there would be as much openness as possible. However, there are two obstacles to that happening. The first is the operational aspect of policing the Act through the Information Commissioner. The commissioner has been seriously affected by huge cost-cutting. Last November, Elizabeth Denham, the former commissioner, told the House of Commons Public Administration and Constitutional Affairs Committee that the ICO’s resources were “40% less” than in 2010 while, at the same time, the number of requests had increased by one-third. In its most recent annual report, published in July 2021, the ICO noted that there had been a build-up of the caseload over the financial year.

The other obstacle to the public being able to find out what is going on is the subject of my amendment. One exemption in FoI legislation relates to commercial interests in Section 43(2). This is a qualified exemption subject to the public interest test. Its application ought to be straightforward but, unfortunately, it is used regularly to refuse information in often the most absurd situations. The outgoing commissioner said:

“The reality of the delivery of Government services involves so much of the private sector now. The scope of the Act does not … cover private sector businesses that are delivering public services. I think that is a huge challenge. I have seen statistics that say up to 30% of public services are delivered under private sector contracts, but those bodies are not subject to”


FoI legislation.

I am afraid that the NHS is a frequent offender when it comes to this. We know that, over the years, the Government and the NHS have looked to expand private sector involvement. There is a long-established trend of trying to outsource some NHS functions to private contractors and a recent trend to set up what I can only describe as tax-dodging subcos, as they are called, to avoid VAT payments and reduce staff’s terms and conditions. This is where public health bodies set up their own subsidiary companies and transfer staff over. Basically, they do it to get around VAT payments, but we have also seen them use it to reduce the terms and conditions of the staff who are so employed.

What is so objectionable is that trusts frequently refuse to disclose information about what they are doing. Decisions are made in secret. In one example, an FoI request went in for the business case. In the decision-making record, the request was turned down on the basis of commercial confidentiality. This happens up and down the country. Section 42(2) is also used to refuse to disclose information long after any commercial considerations have gone.

This is a serious issue. As members of the public, we have a right to know when the NHS outsources services. The FoI legislation was never envisaged as getting in the way of transparency in those cases. When you combine it with the enforcement problem that we have, in essence we are seeing the FoI legislation not being effective. I am not sure how hopeful I am, but I am ever hopeful that the Government will see the error of their ways in relation to FoI. It was set up with the best of intentions and its principles still stand today in terms of transparency, but the more we see the public sector using the private sector, the more FoI considerations ought to come into play.

--- Later in debate ---

[Lord Clement-Jones (LD)]

Thank you. My Lords, if noble Lords thought that my previous speech took a long time, they will not be happy with the second half of it, which concerns the technical parts. These relate to Amendments 452A, 452B, 519A and 519B, which are technical amendments from the Local Government Association designed to ensure that all notices come within the new digital platform.

Amendments 452A and 452B relate to Clause 86(1) of the Bill, which sets out that appropriate authorities may by regulations make provision about

“the form and content of notices, documents or other information to be published or provided under this Act”

and

“how such notices or documents are, or information is, to be published, provided or revised.”

The amendments would help ensure that future regulations do not contravene the purpose of the single digital platform wherever possible and support the move to progressively streamline the many different publication requirements for procurement information and contract-spend data placed on local government and the public sector as a whole through different pieces of legislation.

Amendment 519A would omit Section 89(4)(b) and 89(5) of the Transport Act 1985. This would remove the requirement for local authorities to issue notices of tender individually to all persons who have given to that authority a written notice indicating that they wish to receive invitations to tender for the provision of local services for that authority’s area. This would bring the requirements to advertise tenders for transport services into line with those set out in the Bill and facilitate the ambition to create a single digital platform where all public tenders are advertised in one place.

Finally, Amendment 519B would amend the Service Subsidy Agreements (Tendering) (England) Regulations 2002 by removing Regulations 4 and 5. Regulation 4 requires local authorities to publish information relating to tender invitations in accordance with Part 1 of Schedule 1 to the same regulations. Regulation 5 requires local authorities to publish tender information to the general public at times, in places and in a form which are convenient to the public, and to publish notices of tenders in local newspapers. Removing the two regulations would ensure that information about contract pipelines and contract awards for service subsidies will in future be published in the same place and format as information about any other public contract, to improve consistency and accessibility. A service subsidy in this context is where councils subsidise companies operating public passenger transport services to run services on routes which may not otherwise be economically viable, for example bus services in rural areas. I hope that has explained these rather technical amendments and very much hope that the Minister understands the motive behind them.

[Lord True (Con)]

My Lords, I apologise for not rising sooner; I never know how many spokesmen are going to rise from the various Benches. This has been another interesting and informative debate. It has also been extremely wide-ranging, as has become our custom in this Committee. I will try to answer as many points as possible, but there are things coming from various areas that we will look at carefully. This is your Lordships’ Committee and therefore it is perfectly reasonable for points to be made. My aspiration is to answer, but I may not be able to answer them all.

Before I get on to the main amendments, I will address various things I was asked about. The noble Baroness, Lady Boycott, asked about the Palantir contract. I am advised that this is a DHSC NHS contract. I am not informed in my department of the details she asked for, but I will ask my officials to follow up and respond to her later.

The noble Lord, Lord Berkeley, asked about a Written Ministerial Statement made last week. The timing of the publication of the participation in government commercial activity guidelines for Ministers referred to in that Statement is not connected to this Bill. The guidance sets out how Ministers can be appropriately involved in commercial activity, including procurements, under the current procurement rules.

I was anticipating in a later group—indeed, there are some relevant amendments—a debate about Hikvision. I am grateful for what the noble Lord, Lord Alton, said, as well as for the opportunity to speak to him about this matter, which, as he said, has some security considerations. So far as the actuality of what might or could happen is concerned—that is a potential rather than a loaded spin on it—it is ultimately up to contracting authorities to apply the grounds for exclusion under this Bill on a contract-by-contract basis. The national security ground is discretionary, meaning that authorities can take into account a range of factors, including the nature of the contract being tendered. However, the debarment regime will allow for the central consideration of suppliers on the grounds of national security. As the noble Lord knows, the Government’s security group is working with the National Technical Authority and the Government Commercial Function on the government security aspects of this issue.

I appreciate the noble Lord’s impatience, given the sensitivities of the issue. Policy options are being worked out for how to mitigate the security risks posed by this type of equipment; they range from primary legislation to ban certain companies from the government supply chain to issuing more advice and guidance for contracting authorities. The Cabinet Office has also published guidance setting out the steps that all government departments must take to identify and mitigate modern slavery and labour abuse risks throughout the commercial lifecycle, focusing on the areas of highest risk. We may well return to this issue in debate on a later group, but I can assure the noble Lord that the matters he raised are ones that the Government are not minimising but currently considering.

[Lord Alton of Liverpool (CB)]

I am grateful to the Minister. Without pre-empting our debate later in the Committee’s proceedings, is he in a position now to respond to the letter to the Cabinet Secretary from Professor Sampson, which I referred to in my remarks earlier? If not, could that correspondence be made available to your Lordships between now and Report?

Also, has the Minister had a chance to look at the Foreign Affairs Select Committee’s report, which called for a total prohibition of Hikvision, and the decision not just of the United States Administration but of the European Parliament to ban Hikvision from their public procurement policies? Given the national security implications, as he said—earlier, I referred specifically to the suggestion that HS2 might procure and use Hikvision cameras on the whole of its new network—does the noble Lord not agree that this is something on which we should shine more light rather more urgently?

[Lord True (Con)]

Perish the thought that I might comment on the shelf life of HS2, but I do take what the noble Lord says very seriously. The fact is that some of the factors he mentions are taken into consideration. This issue is live. I accept his chiding. I will look carefully at his words and at what he has asked to be published or not published, but I hope that we may get a resolution of this matter, because I understand the demand, the request and the desire for a clear and public solution to the points put forward by the noble Lord. We will see what we can do, if not before the next group then certainly before we come back to this issue on Report.

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[Lord Alton of Liverpool (CB)]

My Lords, before the noble Lord continues, I hope he will go back to the original statement to reflect further on whether this information could be published. This was an open letter from Professor Sampson that was published—it appeared in the national newspapers that the letter had been sent to the Cabinet Secretary—and I would have thought that most of the issues raised in that letter are things to which Members of your Lordships’ House should certainly be privy.

[Lord True (Con)]

My Lords, I have given further information. The noble Lord referred to a whole range of factors which he asked to be considered and asked me to respond to the Foreign Affairs Select Committee report and so on. I said I would reflect on all he has said and come back, but I gather there has been some reflection on this aspect of his menu. We will no doubt maintain this dialogue.

The amendments we were talking about—Amendments 448, 449 and 449A—all relate to freedom of information and seek to bring external suppliers into the scope of the Act. In practice, the Government do not believe that the amendment would add much and could impose burdens on businesses that would make public contracts unattractive. The public authority will already hold all the details of the tendering process and the resulting contracts, and that information can already be requested under the FoI Act. The desire has been expressed in some quarters to reform the FoI Act, but we are looking at the proposals before us.

Furthermore, information held by a supplier or subcontractor on behalf of a contracting authority is already within scope of the Act. The amendments also introduce unhelpful limitations on the ability of contracting authorities to withhold commercially confidential information. This is a point of debate, but the FoI Act sets out the duties on public bodies when they receive requests for information under the Act. Restating the operation of that legislation is not necessary in this Bill. The Bill sets out in detail what information is required to be published and the triggers for publication, as well as requiring contracting authorities to explain why they are withholding any data.

Amendment 449A also seeks to extend the enforcement powers of the Information Commissioner to suppliers and subcontractors and open them up to criminal prosecution. The Information Commissioner already has enforcement powers in relation to public authorities and therefore in relation to the information held by others on their behalf. We believe that transparency is a sanction for authorities that fail to fulfil their obligations to publish as the failure will be obvious to the public. Failure to publish information required by the Act could be subject to judicial review, and there is also potential for a civil claim for breach of statutory duty pursuant to Clause 89 if the supplier can demonstrate that it suffered loss or damage arising from a breach of a publication obligation. Additionally, an appropriate authority has a power under Clauses 96 to 98 to investigate a contracting authority’s compliance with the Act, make recommendations and, if appropriate, provide statutory guidance to share lessons learned as a result of the investigation. Recommendations issued under Clause 97 come with a duty on the contracting authority to have regard to those recommendations when considering how to comply with the Act, and failure to do so would also leave the contracting authority open to judicial review.

Where a contracting authority is required to publish something that includes sensitive commercial information, it may withhold or redact that information only if there is an “overriding public interest” in doing so. Where the commercial confidentiality exemption is used to withhold or redact information, this must be publicly recorded. As such, there will be full transparency about what has been withheld and why, and interested parties can always challenge such decisions by requesting the withheld information under FoI law. This process is subject to the oversight of the Information Commissioner. Interested parties can also complain to the procurement review unit, which we discussed the other day.

Amendments 450 and 451 are from the noble Lords, Lord Wallace and Lord Fox. They are absent, and I send them best wishes for their respective aliments. Expertus dico: I have just had an aliment as noble Lords saw in the last Session, and I very much feel for all noble Lords. These amendments would make it harder for contracting authorities to withhold information in instances where there is sensitive commercial content. The overall result could be the inappropriate disclosure of sensitive information or fear of such disclosure, both of which are likely to have a chilling effect on suppliers bidding if they cannot be confident that their commercial secrets will be respected by contracting authorities. This could lead to a reduction in choice, quality and value.

Amendment 452, tabled by the noble Baronesses, Lady Worthington and Lady Boycott, and Amendment 455, tabled by the noble Baroness, Lady Hayman of Ullock—which I think is intended to address the central digital platform, not the data on the supplier registration system—propose to introduce various requirements about the accessibility of published information and how it is licensed. The Government have already committed to a publicly available digital platform which will allow citizens to understand authorities’ procurement decisions. This data will be freely available. It will remain subject to data protection law and redaction under the exemptions set out in Clause 85.

However, not all information should be published on the central digital platform. For example, some associated tender documents produced under Clause 20 in certain procurement exercises may need to be circulated to only a limited group of suppliers, for instance, where that information is sensitive. As set out in the Green Paper, we will apply the open contracting data standard, and specify this in more detail in secondary legislation. Published data will be covered by open government licence where possible; personal data contained on the platform will be available without any licence.

Amendments 452A and 452B, tabled by the noble Lord, Lord Clement-Jones, would amend Clause 86 to ensure that regulations require publication on a single digital platform. These amendments are unnecessary as the Government have already committed to providing this platform.

The noble Lord, Lord Clement-Jones, has tabled Amendment 456, which imposes obligations on an appropriate authority in relation to standards and quality of data on the platform. Clause 86(1)(a) already makes specific provision for regulations to set out both the form and the content of information to be published under the various notices required by the Bill. This power is there to ensure that regulations can establish the very standards and formats that I believe the noble Lord is seeking.

On the noble Lord’s proposed new paragraph (b), a notice is usually a snapshot of a moment in time. Most notices should not be updated after the initial publication and it is the legal responsibility of the contracting authority publishing the information to ensure that it is timely, accurate and complete. The appropriate authority—a Minister of the Crown, a Welsh Minister or a Northern Ireland department—will not be in a position to verify all that information, which is why it is the responsibility of the contracting authority.

[Lord Clement-Jones (LD)]

My Lords, I apologise for interrupting, but can the Minister therefore explain why these time limits are so regularly and hugely overridden? The research shows, as I mentioned, that the Cabinet Office itself has a delay of 2.7 months compared with its legal obligation of 30 days. How does the Minister explain that, and why is no further action needed in terms of compliance?

[Lord True (Con)]

My Lords, if the Cabinet Office is sinning, I will take the matter away and look into it. I heard what the noble Lord said about time limits, but I do not have a specific response in this area at the moment, and nor can I either confirm or deny the figure he gave. We have undertaken to engage on these issues, and we will find the answers and will look very carefully at what the noble Lord said in his speech—or rather, his two speeches.

Amendment 458, tabled by the noble Baroness, Lady Hayman of Ullock, relates to the creation of a digital registration system for suppliers. The register of suppliers described in the Green Paper remains a priority, and provision for this register is set out in Clause 88.

Amendment 459, tabled by the noble Baroness, the noble Lord, Lord Coaker, and others seeks to introduce a requirement for government departments to produce reports on carbon emissions relating to procured goods, services and works. I made the Government’s position clear previously that such matters should not be included in the Bill and that remains our position.

I thank the noble Baroness and the noble Lords, Lord Coaker and Lord Clement-Jones, for their Amendment 459A. However, the Government are opposed to this amendment as well. It would create an obligation to have the central digital platform operational within six months of passing the Act. Just to be clear, Clause 86 creates the powers that the Government will use to require publication on the single digital platform. Clause 88 is the basis of the supplier registration system, which is the “tell us once” system through which suppliers will communicate information about themselves to contracting authorities.

I understand from his helpful explanatory statement that the noble Lord, Lord Coaker, was referring to the former—the single digital platform. We do not wish to commit to such a timetable now, as it might not be necessary or possible to deliver the whole functionality of that platform to that timetable. As the noble Lord knows, there is already a six-month period of pre-implementation built in, but I hear what he says and I think there is broad agreement in the Committee that this development is desirable. I welcome the positive response from the Liberal Democrats and Her Majesty’s Opposition, having had discussions about it, and I will take away what they say.

[Lord Coaker (Lab)]

Can I just say—because sometimes these things pass by and they should be noted—that we are very pleased with that commitment from the Minister and thank him for it?

[Lord True (Con)]

Right. Unfortunately, the noble Lord will be disappointed by my response to the second part of the amendment, because I have already explained that contracting authorities will not be required to publish all information to the central platform.

I turn finally to Amendments 519A and 519B from the noble Lord, Lord Clement-Jones. The Bill exempts contracts for public passenger transport services under paragraph 17 of Schedule 2, as their award is regulated by Department for Transport legislation. We believe that it is more appropriate that the transparency provisions governing these arrangements are kept within their existing legal regime, and local authorities are therefore not placed under an unnecessary burden of trying to comply with two separate regimes simultaneously when placing such contracts. I have, however, asked my officials to engage with the Department for Transport to better understand how we can ensure that both regimes are aligned—I think that was one of the points behind the noble Lord’s remarks.

I thank the noble Lord for his generous remarks. Having been a bit flinty on a number of the others, I will none the less, as ever, study carefully Hansard and your Lordships’ very well-informed submissions. Against that background, I commend the government amendments in my name and respectfully request that other amendments in the group not be pressed.

Amendment 90 agreed.

Moved by

[Lord True]

91: Clause 16, page 11, line 36, after “conduct” insert “, or has conducted,”

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Moved by

[Lord True]

93: Clause 18, page 12, line 17, after “considers” insert—
“(a) satisfies the contracting authority’s requirements, and(b) ”

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Moved by

[Lord True]

98: Clause 18, page 12, line 29, leave out “must” and insert “may”

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Moved by

[Lord True]

102: Clause 18, page 12, line 34, at end insert—
“(4A) In this Act, a reference to a contracting authority’s requirements is a reference to requirements described in the tender notice or associated tender documents (see section 20(5) and (6)).”

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Moved by

[Lord True]

106: Clause 19, page 13, line 14, at end insert “(a “competitive flexible procedure”)”

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Moved by

[Lord True]

108: Clause 19, page 13, line 18, leave out “tendering procedure other than an open” and insert “flexible”

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Moved by

[Lord True]

115: Clause 20, page 14, line 8, leave out “procedure other than an open” and insert “flexible”

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Moved by

[Lord True]

117: Clause 20, page 14, line 21, at end insert—
“(5) A tender notice or associated tender document must detail the goods, services or works required by the contracting authority.(6) In detailing its requirements, a contracting authority must be satisfied that they—(a) are sufficiently clear and specific, and(b) do not break the rules on technical specifications in section 24.”

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Moved by

[Lord True]

122: Clause 22, page 15, line 15, after “competitive” insert “tendering”

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Moved by

[Lord True]

126: Clause 22, page 15, line 26, at beginning insert “if there is more than one criterion,”

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Moved by

[Lord True]

132: Clause 23, page 16, line 14, leave out “tendering procedure other than an open” and insert “flexible”

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Moved by

[Lord True]

134: Clause 24, page 16, line 29, at end insert—
“(A1) This section applies in relation to—(a) a competitive tendering procedure;(b) an award of a public contract in accordance with a framework;(c) a process to become a member of a dynamic market.”

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Moved by

[Lord True]

142: Clause 24, page 17, line 5, leave out “terms of a procurement” and insert “procurement documents”

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Moved by

[Lord True]

146: Clause 25, page 17, line 19, after “competitive” insert “tendering”

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Moved by

[Lord True]

148: Clause 26, page 17, line 24, leave out from “assessing” to end of line and insert “tenders under”

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Moved by

[Lord True]

150: Clause 26, page 17, line 32, leave out first “supplier” and insert “person”

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Moved by

[Lord True]

155: Clause 27, page 17, line 38, leave out “tendering procedure other than an open” and insert “flexible”

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Moved by

[Lord True]

162: Clause 28, page 18, line 13, at end insert—
“(A1) A contracting authority must as part of a competitive tendering procedure—(a) request information about whether a supplier intends to sub-contract the performance of all or part of the public contract, and(b) seek to determine whether any intended sub-contractor is on the debarment list.”

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Moved by

[Lord True]

168: Clause 29, page 19, line 3, leave out “or exclude the supplier” and insert “, exclude the supplier or notify the supplier of its intention”

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[Lord Coaker (Lab)]

That is a point well made. Indeed, the whole issue of the increase in the use of regulations by the Government is something that various Select Committees and other committees have commented on. It is a real difficulty because you do not know what the regulations will be. The legislation just gives the power to the Secretary of State to make regulations; you then wonder what they will be.

If I understood her amendment right, the noble Baroness, Lady Noakes, asked why some provisions in the schedules, perhaps really important ones, do not apply if a supplier contravenes them before the Bill becomes an Act. It strikes me that the self-cleansing we talked about earlier would have to be pretty dramatic if, on 26 February 2023, a firm was found guilty of breaking some of the mandatory conditions laid out in Schedule 6 then, on 3 March, it said it had dealt with those but you could not take into account the five days before when it had broken a lot of the conditions because it was before the Bill become an Act. Is that really what the Government intend? I am not sure because, when I read it, I could not quite make this out. I think that the point of the amendment from the noble Baroness, Lady Noakes, is to try to understand exactly what the Government are getting at. What does “before” mean? There are a range of things in that.

The central point I want to make in speaking to our various amendments is that, if all these things are unnecessary around all these things that are really important, how are the Government going to achieve these objectives, many of which are part of their own policies? Many of us wish to see the Procurement Bill used as the vehicle to achieve that but the Government are resisting, and will resist, that. How will they be achieved if not through this Bill?

[Lord True (Con)]

My Lords, there is a wide gamut of public policy that enables a Government to achieve the objectives on which they stood for office; that is a broader philosophical argument. I am not certain whether the noble Lord opposite wishes to have more in Schedules 6 and 7—he has certainly mentioned one aspect—or whether he makes a plea that something should be taken out. If the Labour Party wants to make a submission to change things and excise individual aspects of Schedules 6 and 7, no doubt we will look at that as our discussion advances in Committee.

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[Baroness Neville-Rolfe (Con)]

As it is still Committee, can I just ask a question about tax and competition offences? I am not clear whether those are forward-looking or backward-looking, so if you are a company that, for example, has had a competition or a cartel offence—a minor offence in a subsidiary—are you saying that those groups will be on a debarment list and can no longer be engaged? Similarly, if somebody has had a tax argument, which people have had in the past, and that has been settled—I think there have been some big brands in the past, not that I have been involved, that have had such settlements—are we somehow now saying that those are pariahs, and they are not allowed to engage in procurement for the future? I would just like to be clear about this because my worry is about the perverse effects of this debarment list you are going to have.

[Lord True (Con)]

My noble friend makes an important point. There are elements in here which are looking back and there are elements which are about the present. Legal issues are raised here, and it is important that I come to my noble friend and the Committee with a very specific definition and response to her question in relation to tax and finances.

Amendments 174 and 317 proposed by the noble Lord, Lord Mendelsohn, and Amendment 179 from the noble Baroness, Lady Hayman, seek to bring matters related to prompt payment performance into scope of the supplier exclusion regime. Prompt payment is important; it is lifeblood, in many cases, to small enterprises. The Government are committed to ensuring prompt payment of suppliers, and there are a number of ways in which the Bill does this. For example, 30-day payment terms will apply throughout the public sector supply chain, regardless of whether they are expressly written into the contract. In addition, payment performance can be assessed as part of the award criteria, providing it is proportionate and relevant to the contract.

The Government encourage suppliers to sign up to the Prompt Payment Code. However, we submit that requiring every potential bidder to become a signatory to the Prompt Payment Code is too onerous on some suppliers and would discourage them from bidding, undermining the ability of contracting authorities to achieve value for money.

The noble Lord, Lord Hain, with support from others, proposed Amendments 184 and 187, which seek powers for Ministers to exclude suppliers which have acted in any way unlawfully or unethically. The noble Lord was abundantly clear about what he had in mind when he spoke to his amendments, although he did not stop there; he made broader points about multinational behaviour which I also listened to and took in. We believe that, in the way the proposal is drafted, the threshold is too low for such a serious measure of acting in any way unlawfully or unethically. Exclusion should be reserved for suppliers which pose a serious risk to contracting authorities or the public. We believe that it is also appropriate that the decision to exclude suppliers falls in general to the contracting authority running a procurement.

However, the exclusion grounds cover unethical conduct. Any serious breach of ethical or professional standards applicable to a supplier is deemed to be professional misconduct, whether or not those standards are mandatory. The noble Lord will be pleased to know that professional misconduct is a ground where a debarment case could be made, as drafted in Schedule 7, paragraph 12(1), although I make it clear that I am not commenting on any individual case. As the noble Lord, Lord Hain, told the Committee, I understand that he is meeting my right honourable friend the Minister to discuss this issue. The review led by Cabinet Office officials into the case that he asked for—and indeed the Prime Minister instructed to be done—is now complete and is currently being considered by the Minister. Unfortunately, I cannot say any more at this stage.

[Lord Hain (Lab)]

I am grateful to the Minister. I will not detain the Committee, except to say that I find it hard to understand that a company that has clearly acted unlawfully, let alone unethically, in another country simply lines up with the rest for government tenders. I do not understand how that is consistent with honest business practice, let alone honest government practice.

[Lord True (Con)]

My Lords, the noble Lord made a strong case on this before. He has repeated it in a shorter version. I have told the Committee that the review has been conducted, as he—and the Prime Minister—asked. That is now complete, so let us see what happens. I cannot give any more detail because I simply do not know it as I stand here. The new debarment list will allow Ministers to debar suppliers in the most serious cases and therefore there is no need to make the additional provision.

Amendments 310, 318 and 322 tabled by the noble Baronesses, Lady Boycott and Lady Young, seek to add conviction of any environmental offence as a ground for mandatory exclusion. The mandatory grounds for exclusion are by nature a blunt instrument. They require the supplier to face exclusion from every public contract for five years, as my noble friend Lady Neville-Rolfe pointed out, unless and until the risk of the issues reoccurring has been addressed. For this reason, they are reserved for the most serious forms of misconduct.

The inclusion of environmental offences in the discretionary ground reflects the fact that, for offences where a range of misconduct may be involved, it may be appropriate to take into account factors such as the nature of the contract being tendered or the level of environmental harm caused, before deciding to exclude a supplier. There is guidance from the Environment Agency on what constitutes environmental harm.

The noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Coaker, proposed Amendment 329, which seeks to introduce a discretionary exclusion ground where a supplier’s tender violates applicable obligations in the fields of environmental, social and labour law. I have already explained why we elected to narrow the exclusion ground relating to breaches of such law.

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[Lord Scriven (LD)]

I have listened very carefully to the description the noble Lord has given. Exactly the same kind of provisions exist in states which do torture, where there are no laws or treaties that those states uphold. So, what is the difference between modern slavery and torture when they take place in a state where the laws and the regime that rules that state do not protect its citizens from either?

[Lord True (Con)]

My Lords, I referred to the position where there may be no relevant national laws. The Government’s submission is that this Bill greatly strengthens the defences we have against modern slavery and the vile abuse of individuals in these circumstances. As I said, this will apply whether or not there has been a conviction or a breach of an international treaty.

[Baroness Neville-Rolfe (Con)]

On modern slavery, the Minister is surely saying that there has to have been a conviction for somebody to be on the debarred list. The first person prosecuted under the Modern Slavery Act—I almost hesitate to say this—was Sainsbury, so they had a case against them. Sorry, I am just trying to understand this; is the Minister saying that they would therefore be on the debarment list? I do not think that is the intention.

[Lord True (Con)]

No: I said that the current rules are too weak. They do require the supplier to have been convicted. I am saying that we are moving beyond that to a different evidential base and test. I recognise the strength of feeling among noble Lords on this issue. I commit to engaging further with my noble friend and other Members of the Committee on this prior to Report. On that basis, I respectfully request that these amendments are not pursued.

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Moved by

[Lord True]

175: Clause 30, page 19, line 17, leave out from “must” to end of line 18 and insert “in relation to the award—
(a) treat the supplier as an excluded supplier for the purpose of assessing tenders under section 18, and(b) exclude the supplier from participating in, or progressing as part of, any competitive tendering procedure.”

Her Majesty The Queen: “The Faithful”

Lord True Excerpts

Monday 18th July 2022 Lords Chamber

[Lord Farmer]

To ask Her Majesty’s Government what consideration they have given to advising Her Majesty The Queen to add “The Faithful” to her title; and what legislation, if any, would be required before such a title was adopted.

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, I am grateful to my noble friend for his thoughtful suggestion and for his kind words in the Motion on the humble Address about Her Majesty the Queen’s long and successful—and, I submit, happy and glorious—reign. There are no plans for the Government to advise Her Majesty to change her title, which was set out by proclamation made under the provisions of the Royal Titles Act 1953.

[Lord Farmer (Con)]

I thank my noble friend the Minister for that Answer, which I was expecting. Does he agree that the unprecedented occasion of a Platinum Jubilee demands marking for future generations and centuries the uniqueness of this reign? Adding “the Faithful” to the Queen’s title, as in “Alfred the Great”, would make her stand out in the sweep of history. This permanent and indisputable marker would acknowledge her constancy and outworked sense of duty. It has a double meaning, as it is directed both to God and to her fellow man. Can my noble friend the Minister suggest a constructive way forward?

[Lord True (Con)]

My Lords, I agree with every sentiment that my noble friend has expressed about Her Majesty. The position is that the titles are proclaimed by the Accession Council and embraced in the Royal Titles Act. The Platinum Jubilee demonstrated the affection this country has for Her Majesty; it may be left to history to accord titles to past monarchs, but the Government have no plans to make a change.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, as the Minister mentions history in this context, would he not agree that such additions to the titles of our sovereigns, and indeed sovereigns in other states, have tended to be post hoc rather than during the lifetime of the person in question?

[Lord True (Con)]

My Lords, that is true, and I think I alluded to that. I believe that the unfortunate title of King Ethelred the Unready, who died in 1016, was brought in only in the 1180s. The fact remains that the characteristic that my noble friend alluded to of the Queen’s sense of duty and commitment to her people, which was set out while she was still Princess Elizabeth, shines forth, as it has done on every day in her reign, and I am sure will shine on long after her passing.

[The Lord Bishop of Carlisle]

My Lords, I am grateful to the noble Lord, Lord Farmer. I declare my interest as Clerk of the Closet, an office of service to the Crown dating back to the 15th century. At her coronation, the Queen first gave her allegiance to God before anyone came forward to give their allegiance to her. Does the Minister agree that the generous, hospitable and open interpretation by Her Majesty of that duty to people of all faiths and none, over so many years, is not only a foundation stone of our constitution but a reason to feel all the more thankful for the lifelong service Her Majesty has given?

[Lord True (Con)]

Of course I agree with the right reverend Prelate. It is obviously not the custom of this place to comment on Her Majesty’s opinion or that of any other member of the Royal Family. I think the objective facts we have observed from that time prove that everything the right reverend Prelate has said is true.

[Lord West of Spithead (Lab)]

My Lords, does the Minister not agree that, in terms of recognition, building a national flagship is not actually what we should be doing? As far as I am aware, there has been no bid from the Royal Family, despite the fact that they loved the old royal yacht—and its removal was a disgrace. Focusing on building this national flagship in advance of some things that are crucial for our defence is not a clever thing to do.

[Lord True (Con)]

My Lords, I think that was mildly away from the subject of the Question, but I always note when a former Sea Lord is against the building of a ship.

[Lord Lexden (Con)]

My Lords, does my noble friend agree that as people in the years to come look back on this extraordinary and glorious reign, they are likely to subscribe to it all manner of suitable loving and respectful epithets, and it might perhaps be wrong to single out any one term?

[Lord True (Con)]

I agree. Is it possible to agree with what both my noble friends said? I believe it is. The Queen’s reign provokes so many positive reflections, and I hope they will last. Her illustrious great-grandfather, King Edward VII, was known as “the Peacemaker” for his efforts to prevent war in Europe. Sadly, four years after his death, the Great War broke out.

Procurement Bill [HL]

Lord True Excerpts

Committee stage
Wednesday 13th July 2022 Grand Committee

[Baroness Hayman of Ullock (Lab)]

Oh, the noble Baroness is there; I was looking for her in the place in which she sat on Monday. She moved, just to confuse me. This is the trouble with picking things up later.

The noble Baroness rightly said that meeting net zero is a government-stated objective and we believe, as she does, that this should also be an objective within the Procurement Bill. It could make a genuine difference, should that be something that needs to be taken account of. We also support those noble Lords who said in the debate that this helps to meet the levelling-up agenda as well as achieving net zero.

We know that social value is included in the NPPS—the national procurement policy statement—so I ask the Minister: if it is in the policy statement, why is it not referenced in the Bill? It concerns me that the policy statement can be changed at any point, so not having it in the Bill and just having it in the statement means that it is not absolutely embedded within the legislation. I will briefly mention that, between 2012 and 2020, there was no statutory guidance on social value. This inhibits its development, so we need to ensure that this does not happen in future.

I express strong support for Amendments 49 and 58 in the name of the noble Baroness, Lady Worthington, which are about climate and environmental matters and the importance of having these based within the Bill. She also said that “public benefit” needs further clarity, so I must ask again: does “public benefit” include environmental outcomes? It would be helpful to have further information on this. The noble Baroness, Lady Parminter, spoke importantly about the fact that using procurement in this way is an opportunity to drive behaviour change, because we are not going to achieve the Government’s net-zero objectives without behaviour change.

Amendment 45 in the name of the noble Lord, Lord Wallace of Saltaire, specifies a number of overarching requirements that a contracting authority must take due regard of when carrying out procurement. We support the main points that he made—particularly, as well as the carbon account, the ethical and human rights record of the supplier, as he said. I know that we will talk about this in a later debate, but that is important.

Amendment 53 in the name of the noble Lord, Lord Lansley, which the noble Baroness, Lady Noakes, introduced, again talked about defining “public benefit”. I think that the Minister can see that this is not party political: right across the Committee there is concern about what “public benefit” means and what it is going to deliver as part of the Procurement Bill. The noble Lords, Lord Wallace of Saltaire and Lord Purvis, also tabled amendments on this issue.

I finish by briefly mentioning an interesting briefing that I had from UKCloud. I do not know if other noble Lords have received it, but it is about the importance of maximising social value through procurement in the world that UKCloud works in—the cloud providers—and how doing so would be consistent with wider net-zero policy aspirations. UKCloud feels that it is important to support businesses in this country that are providing those kinds of platforms and support and that the sector can lead in the provision of clean, green technologies, which can help to digitise and decarbonise users of its services. It also believes that, if the sector got that kind of support from government, UK businesses would have the opportunity to really innovate and become leaders in this field. I found that an interesting briefing. If the Minister has not seen it, I would be happy to share it with him, because it had some interesting thoughts in it. The briefing also said that UKCloud feels that weighting should be given to make sure that cloud providers for the UK Government are paying their taxes in full on all earned income in the UK—that is an important point—and that they should have a clear and measurable track record of investing in local jobs and skills. The briefing has some interesting points about how procurement could help its particular type of business. I finish there and I look forward to the Minister’s response.

[The Minister of State, Cabinet Office (Lord True) (Con)]

I thank the noble Baroness and all those who spoke on this group on our previous day in Committee. It was obviously unfortunate that we could not finish this group then, but I am grateful to all noble Lords, including those who were here on Monday who are not able to be here today. It has been an interesting debate and I think that we will wrestle with the philosophy of this as we go forward. I have been interested in the contributions made.

I am constantly asked to define “public benefit”. One of the reasons why we have different political parties in this country and why politics has evolved is that, at different times, different people define it in different ways. The search for a total, accurate, 100% agreed definition that covers every possible eventuality may be an illusion. However, I understand that noble Lords are saying that they feel that there needs to be more clarity. No doubt we will continue this conversation on other amendments to come.

I was interested in this debate. As he knows, I have very considerable affection and enormous respect for the noble Lord, Lord Hunt of Kings Heath—it is very easy to say in this House that you have very considerable affection for somebody, because we are such a nice lot; I think generally we do mean it—and his experience. He said something very interesting. Having argued for his amendment, he said that this Bill would finish with something akin to what he wanted in it and that it would do that because it was a Lords starter.

The only way to interpret that is that the noble Lord would advocate using the power of the House of Lords to force the elected Government to include something in a Bill that they did not wish to include, in their judgment and in the judgment of the House of Commons. That is a perfectly legitimate point of view, but I was interested to see that the noble Baroness from the Labour Front Bench had signed that, as she just reminded us, and expressed her support for what the noble Lord, Lord Hunt, had said. Perhaps I should take this away and tell my friends that if ever there is a Labour Government, it would be reasonable for the unelected House to hold up Labour legislation indefinitely on a Lords starter in order to force change.

[Lord Hunt of Kings Heath (Lab)]

My Lords, he really cannot get away with that. There are huge numbers of different amendments, which all have the same intention of trying to implement the Government’s policies on climate change and sustainability, which, as the Committee on Climate Change has said, are absolutely fine. The Government’s problem is that they do not have the policies to implement their own strategy. All I am trying to do is to help them implement their strategy. I do not think that that is a great constitutional abrogation by your Lordships’ House. This is a Lords starter, the Government chose to bring it to the House of Lords, the Parliament Act does not apply and it is quite reasonable for this Committee—of course, I cannot speak for my Front Bench; I am speaking entirely as a lowly Back-Bencher—who is seeking to encourage the Government to recognise that they will lose this in this Committee and that the leverage they have to respond is less than it might be.

[Lord True (Con)]

My Lords, I think that was the noble Lord trying to wriggle off the hook but impaling himself back on it at the end of his remarks. We have to make this House work via the usual channels, and it is reasonable for an elected Government in another place to listen respectfully to the other House, which it should—it is our duty to ask the other House to think again on certain things—but there is a point where we do not say that it should be taken to the wire. However, if I am ever a Back-Bencher and there is something from a Labour Government that I do not like, perhaps I will take away the Hunt dictum—one of the advantages of continuing on Wednesday what you did on Monday is that you can read Hansard, and I read carefully what the noble Lord said—and practise what he preaches. Anyway, let us get on with the business at hand. It is an important issue on which the Front Bench opposite might wish to reflect.

Amendment 45, tabled by the noble Lord, Lord Wallace, and the noble Baroness, Lady Bennett, seeks to ensure that contracting authorities consider a number of additional requirements when carrying out procurements, including reducing net carbon budgets, supplier human rights records, data security in the platform, and transparency. In our view, as I have argued before in Committee, contracting authorities are able to deal with these matters as things stand, and in a way that is more targeted and effective than through inclusion in a broad obligation to “have regard”. In a sense, that is the difference between us. Although the noble Lord, Lord Wallace, said that his were modest demands, and deliberately did not include net zero, for example, that is brought in by the analogous amendment tabled by the noble Baroness, Lady Worthington.

Contracting authorities will be able to take account of suppliers’ carbon-reduction plans and other environmental objectives where they are relevant to the subject matter of the contract. It is unnecessary and potentially unhelpful to contracting authorities to attempt to impose on them all an obligation to have regard to a range of other factors, including net zero—as mentioned in the amendment tabled by the noble Baroness, Lady Worthington—in and throughout all of their procurement activities.

In particular, it places unnecessary burdens on them in relation to areas where this is of limited relevance and would open up smaller contractors unnecessarily to the risk of legal challenge. After all, these matters are also covered in another legislation. Contracting authorities will need—this is in the Bill—to consider the ethical and human rights record of the supplier, in some respects, when considering whether a supplier is eligible to participate in the procurement. We will discuss this issue later. The Bill contains effective provision on the exclusion and debarment of those who do not.

--- Later in debate ---

[Baroness Thornton (Lab)]

Can the Minister please explain why the term social value is not in the Bill?

[Lord True (Con)]

My Lords, as I have just said, we believe that the additional objective of maximising social value would be a duplicate, as it is embraced in “public benefit”.

[Baroness Thornton (Lab)]

I am sorry, but the Minister has said that there is no definition of public benefit, and that is quite right. However, there is a legal definition of social value. It exists and is on the statute book, so why are the Government not using “social value” in the Bill?

[Lord True (Con)]

My Lords, again, I have set out the argument. The noble Baroness disagrees but I am not going to repeat a third time the reason why we think maximising social value is unnecessary and would be a duplicative addition. Each procurement is different and what is appropriate, for example, for a large-scale infrastructure project is not for smaller transactional procurements.

Furthermore, procurement policy should be aligned with wider government policy and, as such, the publication of a national procurement policy statement is based on the strategic policy priorities relevant at the time. It would not be appropriate, in our submission, to include in the Bill priorities which can and probably will change —we have heard that they will—based on an Administration’s objectives. It is always important that policy priorities are included in individual procurements only where they are relevant to the subject of the contract.

On Monday, for example, noble Lords on all sides gave those of us on the Front Bench, I freely confess, a hard time in discussing the importance of minimising bureaucracy to facilitate SME participation in procurement. I took that away as a powerful call, which I have said we will discuss. As I think I have already indicated outside the Chamber, the Government are keen to meet and consider these points.

The paradox is that seeking to include extraneous requirements, which this and other amendments in the group risk, could make it harder for small businesses to bid for public contracts. One cannot talk the small business game, which noble Lords did strongly and fairly, while adding compliance requirements that make things harder for small businesses and help larger organisations to corner the market.

We think that Amendments 48 and 52 in the names of the noble Lords, Lord Hunt and Lord Coaker, and the noble Baroness, Lady Hayman, are unnecessary and potentially unhelpful to contracting authorities in attempting to impose on them an obligation to have regard to improving the economic, social, environmental and cultural well-being of the relevant area in and throughout all their procurement activities. In particular, they would place unnecessary burdens on them in relation to areas where this is of limited relevance and, again, open them up unnecessarily to the risk of legal challenge.

I wonder whether we would all agree—in fact, I do not have to wonder; I know that we would not all agree—on what carrying out procurement in a “socially responsible way” means. In a sense, that is implicit in the challenge from the noble Baroness opposite. We all might have rather different understandings of what that requires. Imposing a legal obligation of such potential breadth on contracting authorities is, we submit, exposing contracting authorities to unnecessary risk and complexity. Contracting authorities will be able to take account of measures that improve the economic, social and environmental well-being of the relevant area—this may differ from local authority to local authority, for example—where it is relevant to the subject matter of the contract. The Bill already allows this, which is absolutely in line with the Government’s levelling-up agenda.

On Amendments 53 and 58 in the names of my noble friend Lord Lansley and the noble Baroness, Lady Worthington, as I said in our debate on an earlier group, the term “public benefit” is deliberately undefined; consequently, it is intended to be a flexible concept that gives contracting authorities a degree of discretion. Again, local authorities may have different views from place to place on what the most urgent benefit in their area is. Although all the proposed economic, environmental and social additions, including creating new businesses, jobs and skills, and reducing geographic disparities in the United Kingdom, might be facets of public benefit in different circumstances—I do not challenge that—we do not believe that it would be helpful to elaborate them in the Bill.

It might also be unfair to small contracting authorities to impose an obligation to consider the reduction of geographic disparities in the United Kingdom; they might be more concerned about disparities up the road. Doing so risks excluding other matters that might be more valid in specific circumstances. The Government consider that contracting authorities are better placed to make that decision in the individual circumstances at hand. We want contracting authorities to think about the extent to which public money spent on their specific contracts can deliver greater benefit than it otherwise would. I think that there is agreement in the Committee on that point. As I have said, each procurement is different; for example, what is appropriate in delivering a giant infrastructure project is not appropriate for smaller procurements.

I turn to Amendments 59 and 59A from the noble Lord, Lord Wallace—

[Lord Wallace of Saltaire (LD)]

My Lords, I have listened carefully to what the Minister said but I am still puzzled. We are trying to craft a Bill that will have quite a long shelf life over a period when we may have a change of Government or some change in government. The Minister is saying that the catch-all public benefit is the only thing that we should have in the Bill in terms of principles and objectives. I would have thought that the consensus across all our democratic parties on public benefit and social value is a little wider than that and that it would help to provide guidance if that were spelled out rather more in the Bill. Otherwise, the principles and objectives will simply swing from one side to the other when different Governments come.

Everything cannot be left to each changing Minister to define. Surely the concept of public benefit is one that we share, as is the concept of social value. We also share the view that £300 billion-worth of public procurement sets a culture, the core of which I hope that all Conservatives, Labour, Liberal Democrats and Greens share, because that is what we are attempting to get. The Minister is saying that we cannot agree on that. I am aware of some people—the Chicago school of economists and those who follow them—who deny the concept of public benefit altogether and believe that private benefit is the only thing that drives the economy, prosperity and society. I hope that we are not there and are not starting from there.

[Lord True (Con)]

The noble Lord always slightly loses me when he rides off in his speeches. I have a vision of him lying awake, trying to get to sleep, thinking of these terrible right-wing Conservatives whom he always cites and seeing the worst in everything. I thought that the great tradition of the Liberal party and liberal values, which I was brought up with and adhere to, is to give space to variety and not uniformity; there should be flexibility, with opportunities for local judgments and for contracting authorities to make them. The concept of public benefit is wide and flexible and should be so to give contracting authorities a degree of discretion to consider whether their specific contracts can deliver greater benefits than they otherwise would.

For example, contracting authorities are already able to make it clear in their technical specifications that fair trade options can be included in the products provided to meet the requirements of the contracts, provided that they do not discriminate against other products of other suppliers. The noble Lord objected to the mention of the terrible word “money”, but public procurement needs to have a focus on achieving value for money. The two things are not contradistinctions.

While I would expect contracting authorities to consider these matters where appropriate, it would not be helpful to elaborate them in the Bill, for the reasons that the Government have submitted, as they would not apply to all contracts. The course that the other side is proposing will lead to a uniformity imposed on a diversity, which is the antithesis of local values. I respectfully request that these amendments be withdrawn.

[Baroness Hayman of Ullock (Lab)]

Just before the Minister sits down, I really do not think that that is what we are trying to achieve. It is just to try to bring in a definition of something. If you have an objective laid out, without proper understanding of what the phrase is trying to achieve or what it means, it could be quite confusing. All we are trying to get is some clarity on what is meant by “public benefit” and what the Government are trying to achieve by having it as an objective. I have no problem with there being flexibility around this—that is important in procurement—but, as the noble Lord, Lord Wallace, said, we need some sort of guidance. If the Government do not want to put a definition in the Bill, some guidance underpinning it, on what this is looking at and what the Government are trying to achieve, would be extremely helpful.

[Lord True (Con)]

My Lords, in a sense, it depends where the straitjacket applies and where flexibility is enabled. We will come on shortly to debate the national procurement policy strategy and I gleefully anticipate that that will be another zone of contention in our Committee, to which many of your Lordships will want to add more and more things. The noble Lord, Lord Coaker, was enthusiastic about the national procurement strategy at the opening of our proceedings and it is something that an incoming Government would be able to change and mould. Maximising public benefit is an important objective of the Bill.

--- Later in debate ---

[Lord Scriven (LD)]

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

[Lord True (Con)]

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

[Lord Wallace of Saltaire (LD)]

I beg leave to withdraw the amendment.

--- Later in debate ---

I believe that the Minister himself thinks that much of this is important; no one is for the degradation of the environment. We are all trying to say to the Government that they need to go further to ensure that the agreed procurement strategy will achieve the effect that the Government want. The Government have a net-zero by 2050 policy, so the procurement policy is an essential way for the Government to deliver their own policy. Why would it be controversial for the procurement policy statement to require businesses, contractors and contracting authorities to adhere to that policy, thereby enabling the Government to achieve their own objective? That is the question many of us want answered: why is it not mandatory? Why is it not subject to an affirmative process so that all the other amendments before us become relevant for inclusion in what would be a progressive statement that would excite and inspire people and help the Government deliver something that we all want them to achieve?

[Lord True (Con)]

I agree with the noble Lord, Lord Coaker. This has been an extremely interesting and thought-provoking debate, and I thank noble Lords for it.

There have been various strands in this debate, one of which is the last one alluded to by the noble Lord. There appears to be a suspicion in some minds about whether this lies in the may/must thing and whether there will be a national procurement policy statement. We have published a draft statement, which I will come back to later in my speech. I will not read any of it out, because the noble Lord, Lord Hunt of Kings Heath, was kind enough to read out some of it—although I do not think that he quoted this specific bit—about

“contributing to the UK Government’s legally-binding target to reduce greenhouse gas emissions to net zero by 2050”.

I know that noble Lords are saying, “Oh well, yes, but, et cetera”—

[Lord Davies of Brixton (Lab)]

The Minister referred to that document as a “draft statement”. My understanding is that it is a non-statutory document, which is something slightly different. Is it a draft of what we are going to get later this year?

--- Later in debate ---

[Lord True (Con)]

This document was produced at one stage of the process of working towards this procurement legislation to illustrate what the national policy statement might look like. I will come on to the question of consultation because that was a second theme and ask in the debate. It was clear in the speech by the noble Baroness, Lady Parminter, about how Parliament will be involved in the process and the hope that Parliament will be able to influence the process in an effective way. I have heard that call and will reflect on it.

The third strand takes us back to where we were before. Noble Lords are seeking to put in primary legislation constraints on what a procurement strategy might and should contain. Having been taken to task by the noble Lord, Lord Scriven, in the debate on the previous group about being diffident about amendments that say “must have regard to”, all the amendments in this group, bar those that are applying the thing, are “must” amendments. They are a tighter straitjacket on the potential procurement statement than what we had before in terms of what is proposed to go into primary legislation, so I am instinctively less likely to be attracted to them.

For the reasons that we have debated at length—that there is a difference between insight and knowledge, that some people want to tie a lot down in primary legislation and that the Government are arguing for flexibility—we sadly cannot accept any of the amendments in this group. Amendment 60, tabled by my noble friend Lord Lansley—the may/must amendment—would require the Government to publish a national policy procurement strategy. We have shown, in earnest, what we might move towards, and we have drafted Clause 12.

However, any procurement policy should be aligned with wider government objectives and, as such, the publication of an NPPS is a decision based on the strategic policy priorities relevant to the Government at that time. Our feeling is that we should not seek to bind a future Government—that may be of a very different complexion to ours—to publish a specific document. Therefore, we think that changing the drafting of Clause 12 from “may” to “must” and mandating the statement in this manner would not be appropriate. However, I have listened carefully to what has been said, and it goes into the box of satisfying Parliament that it will have an opportunity to have influence because we are a parliamentary democracy, and Parliament should have influence. That is a fundamental faith that I hope is shared by all of us who have the honour of being Members of Parliament.

The noble Lord, Lord Davies, raised a point about statutory versus non-statutory. I believe that I said—but somebody behind me said that perhaps I did not—that it was not necessarily statutory but the paving, if you like, was included in statute. The current NPPS is non-statutory. If I gave the opposite impression, that was not my intention, but obviously we are talking about the future here. It is there to show what a statutory NPPS might look like in the eyes of the Government. I hope that I have clarified that.

Similarly, Amendment 546, tabled by the noble Baronesses, Lady Worthington, Lady Young and Lady Parminter, and my noble friend Lady Verma, provides for Clause 12 to be brought into force immediately upon the Act being passed. Again, this amendment seeks to ensure that, in one sense, the things that people want to happen will happen quickly. I hear strongly what my noble friend says about small businesses and the need to reach out and help innovators and the creatives and, on the other hand, to get an NPPS before the public and into operation.

As my noble friend Lady Verma and others will know, it is currently envisaged that there should be a period of six months after the Act is passed before it comes into force, which will allow for consideration and discussion, and for training and learning about implementation. In that light, there are certain difficulties in the proposal to bring the NPPS in on the very first day. I can assure her that the contracting authorities will be required to have regard to the NPPS and embed it in their own organisations. If it is mandated to be on the day the Act is passed, the process may not work as we currently envisage it, but I have heard what has been said in the Committee about the concerns people have on the process and will take that away to colleagues. At the passing of the Act—the point mandated in this amendment—the new regime would be yet to be fully implemented, and we are allowing this period for familiarisation.

The other strand in the debate, as I have alluded to, goes back to our previous group on setting specified strategic priorities in primary legislation. The range of topics we have heard has been very wide—the Government profoundly agree on many of them—and some were very detailed. I know of the passion of the noble Baroness, Lady Boycott, on food matters and am frankly horrified to hear that Coca-Cola is paying for its product. You would have to pay me to have a tin of Coca-Cola, I can tell you. However, the set of details in the proposal could potentially be quite onerous, and the noble Baroness’s objectives are secured or sought in other legislation and activities. I will come back to this later in my remarks.

The range of amendments in this group shows that there are many different priorities. It is precisely for that reason that we believe the contracting authorities should have a range of flexibility and that some of these matters are potentially better detailed in the NPPS than in primary legislation. But I understand why, through these amendments, noble Lords are trying to express their concern on the matters that they wish to have put in. For example, Amendments 61, 65, 69, 70, 70A and 79, in the names of a number of noble Lords, refer to the climate change proposals and net zero. As I have said, these are in the current non-statutory document. While I recognise the importance of this, it is absolutely correct in our view that public procurement needs to be focused on achieving value for money.

The noble Lord, Lord Hunt, read out parts of the current draft and said that there is a dichotomy and a balance here. Yes, we admit that there is a dichotomy and a balance to be reached but we maintain that it would not be appropriate to include wider policy objectives in primary legislation. Each procurement is different and, as I have said before, what is appropriate for a large one is not necessarily appropriate for a small one. It is always important that policy priorities are included in individual procurements only where they are relevant to the subject of the contract, in our submission. That is to avoid making procurements unduly complex and difficult, particularly for smaller or new entrants and innovators, to comply with.

--- Later in debate ---

[Lord Wallace of Saltaire (LD)]

I have just one more question. It is about periodicity. From the point of view of a contractor, it would be unwelcome to have too frequent changes in the public policy statement or too long periods in which the statement is not revisited. If I were a contractor, I would want to know when a new statement might be coming.

We have a relatively strong convention that strategic reviews of foreign policy and defence take place every two to four years or at the beginning of each Parliament. Would the Minister consider whether there needs to be something in the Bill to prevent new Ministers, when they come into their department, nine months after their predecessor took office, having their statement instead, which would be quite chaotic; or a Minister who had been there for seven years deciding that he did not want to have anything to do with it? Some encouragement for a regular period of ministerial statements might be a positive aspect for the Bill.

[Lord True (Con)]

As so often, the noble Lord makes an important point. I was charmed by one aspect of his arguments on continuity, when he complained that the Conservative Party kept changing Prime Ministers. I thought he was one of the main cheerleaders for a change in Prime Minister, so he cannot, in the immortal phrase, have his cake and eat it.

There is a duty in the Bill as drafted for a Minister of the Crown to keep the national procurement policy statement under review. It is not in the Bill—noble Lords have not been particularly receptive to the argument I put forward, although the noble Lord, Lord Coaker, has shown his eagerness to get his hands on the levers of power and use them—but the Government’s intention, with great generosity, is that it should be possible for a review of the NPPS to be undertaken in each Parliament. If one made a period of eight years or whatever statutory, then a new or different Government coming in would have to task primary legislation to make that change. That is the kind of structure we have been trying to operate in. Part of the reason the Bill has been framed in the way it has is to leave flexibilities, some of which your Lordships do not like and some of which at least one of your Lordships does.

I turn to Amendment—

[Lord Hunt of Kings Heath (Lab)]

The Government have put some objectives into legislation, such as the climate change targets. What we are saying is, for goodness’ sake, where that happens, link this Bill to the other pieces of legislation. Surely it all fits together then.

[Lord Davies of Brixton (Lab)]

On a serious note, I add the example of pension schemes. The Government have laid a series of responsibilities on pension schemes to have regard to matters such as climate targets. The Government have accepted the principle of doing it this way and the Minister seems to be ignoring that.

[Lord True (Con)]

In the real world, we are dealing with a Bill which relates to contracting authorities. The counterparties to contracting authorities are would-be suppliers. The more one lays a duty on contracting authorities to do something, the more a small business which is seeking to enter the procurement process will have to come forward with pages and pages of compliance documents. Noble Lords may think that is not the case. On a personal note, my wife, who is far greater than me, runs a small business. When she started, the compliance requirements were about an inch thick, but now they are much thicker. The danger is always that, in the desire to do good, one ends up creating barriers to entry.

[Baroness Bennett of Manor Castle (GP)]

Is it not the case that small and medium-sized enterprises are facing these requirements from other quarters? I am thinking of a meeting I attended of the northern Country Land and Business Association where we heard from the banking sector that no farmer would be able to apply for a loan unless they could show their carbon budget. We have talked about food, as one area. This is going to be the reality of doing business. These will be pre-existing things, so this would simply ensure they are taken into account.

[Lord True (Con)]

I hear that but I must say this: it is sometimes quite extraordinary to listen to noble Lords. You would not think that it was this Government who amended the Climate Change Act 2008 in 2019 to introduce the target of a reduction of at least 100% in the net UK carbon account by 2050. The other parties had every chance to do that but did absolutely nothing. I am then lectured in this way about the Government not putting in the small print of this particular piece of legislation a target for which, to be fair, this Government legislated and, frankly, this Prime Minister pushed strongly. Procurement Policy Note 06/21 already sets out how to take account of suppliers’ net-zero carbon reduction plans in the procurement of major government contracts. Included as a selection criterion is a requirement for bidding suppliers to provide a carbon reduction confirming their commitment to achieving net zero in the UK by 2050. It is there in that procurement policy note.

Amendment 71 tabled by the noble Lord, Lord Aberdare, would require contracting authorities to have regard to the NPPS in respect of contracts awarded from the framework and/or a dynamic market on every occasion. The NPPS applies to both the setting up of a dynamic market and the awarding of a framework agreement. Contracting authorities will therefore need to apply it when establishing conditions of membership that suppliers need to satisfy in order to participate in a dynamic market; when undertaking a competitive tendering procedure to award a framework; and in setting the contract terms and conditions that apply to the framework. We believe that this is sufficient for the purposes of ensuring that the policy priorities are fully reflected in government contracts, but I will look carefully at the noble Lord’s remarks.

[Lord Aberdare (CB)]

I thank the Minister for that answer and for getting to it at the third time of asking, by which point I was almost bursting with excitement as to what he was going to say. I am not entirely clear why the Bill seems to take frameworks and dynamic markets out altogether but I will study what the Minister has said and endeavour to understand. I thank him for getting there in the end.

[Lord True (Con)]

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

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

[Lord Wigley (PC)]

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

[Lord True (Con)]

My Lords, obviously my right honourable friend will consider everything in his engagement with the Welsh Government. If the noble Lord wishes to bring forward an amendment, I will also consider and respond to it. By the way, I was not waving at my officials or my absolutely brilliant colleague; one of those wretched moths was just about to fly into my ear and prevent me hearing the noble Lord’s charming and persuasive words.

Further amendments cover compliance, reporting requirements and review. I know that this is an area that the Committee is interested in and will probe as the Bill goes forward. Amendment 75, tabled by the noble Lord, Lord Wallace, provides for a compliance review within three years, with a particular focus on small businesses and social enterprises. I fully understand the importance of social enterprise. The noble Lord is not in his place any more but I myself created social enterprises when I was the leader of a local authority; I think that their contribution to our national life is immense.

I assure noble Lords that the Government are committed to breaking down barriers for small businesses and new entrants in supply chains. We had a good debate on that on Monday; my noble friend, among others, made very strong points. Our position is that, although we agree that compliance in this respect is important, it would not be appropriate to legislate and place additional burdens on contracting authorities for this. Small businesses and other suppliers will continue to have access to the Public Procurement Review Service, which will form part of the procurement review unit, to raise any concerns that they have in respect of contracting authorities’ compliance with the Bill, including the duty to have regard to the NPPS. The Bill also provides the Minister with the power to investigate these cases. I am sure that this will provide small businesses with good recourse to challenge non-compliance with the NPPS but we have undertaken to give further consideration to and engagement on the interests of that group in relation to small businesses; I will add the noble Lord’s suggestion to that engagement.

Finally, we return to the question of social value, which was addressed in the previous group. Amendment 75A would require the Secretary of State to provide guidance to contracting authorities on how to implement social value in line with the NPPS. Again, the noble Lord, Lord Hunt, was kind enough to read out the current draft document, where social value is fully represented. As I argued in the debate on the previous group, we believe that this amendment is not necessary. The Government and the Government for Wales will publish procurement policy statements containing their priorities, which all contracting authorities must have regard to when carrying out a procurement or exercising functions related to it. As these priorities may change from one NPPS to another, we do not believe that it would be appropriate to specify on the face of the Bill that guidance on a given issue must always be produced.

Amendment 80, tabled by the noble Baronesses, Lady Hayman of Ullock and Lady Bennett, and the noble Lord, Lord Coaker, concerns the inclusion of a new clause for requiring carbon reduction plans from suppliers for contracts above £5 million. I have already referred to a procurement note but, as I have mentioned, we do not see this type of criterion being suitable for inclusion in the Bill. While central government has policies for this on complex procurements, the amendment would be a burdensome addition to the workloads of contracting authorities across the UK and could potentially inhibit new entrants.

[Lord Coaker (Lab)]

Excuse me for interrupting the Minister but I do not understand what he just said. Amendment 80 would make mandatory what the Government have already said procurement is required to do. Procurement Policy Note 06/21, which the Government have published on their website, is titled:

“Taking account of Carbon Reduction Plans in the procurement of major government contracts”.


All the amendment does is clarify the legal status of 06/21, which is the Government’s own policy. Given the line the Minister has taken, I would be parading 06/21 as a good example of what the Government are doing. That is all this amendment seeks to change in the Procurement Bill. The Minister may need a note on this—I appreciate that—but that was the purpose of this amendment. I wonder whether the Minister could clarify what he has just said in reference to Procurement Policy Note 06/21, which we have included in the explanatory statement as the purpose of Amendment 80.

[Lord True (Con)]

I deliberately referred to Procurement Policy Note 06/21. It is something that the Government have done; however, the line I am taking and the position of the Government is that we do not wish to encrust the Bill with statutory requirements. I am glad that the noble Lord opposite follows the policy—I reminded him of it as I was going through my speech—but, if I yield one, I will yield 125. It was kind of the noble Lord to say that he was pleased that the Government published Procurement Policy Note 06/21 but I wish he would be satisfied.

I recognise that Amendment 80 replicates the £5-million threshold but we think that taking this policy forward would potentially be a burdensome addition for SMEs, which are required to produce and maintain such documents—not only if they are small SMEs but if they want to be part of a consortium for a larger government procurement project. Despite what the noble Lord said, I do not believe that this changes the overall position of the Government that we should not add to the Bill, to primary legislation, the encrustations that he requests.

[Lord Coaker (Lab)]

I am sorry to pursue this. Procurement Policy Note 06/21 helpfully has some frequently asked questions at the end. One asks when it should be applied. It says that the note

“applies to all Central Government Departments”.

What does that mean? Does it apply or not? Is the Minister saying that it applies to them but the Government do not really mean it and departments can choose whether to do it? What is its status? Is it worth the Government putting in their own documents that it

“applies to all Central Government Departments”?

They might as well just say, “Do it if you want”. What is the purpose of publishing it if it is very loose and can apply only if the departments want? I do not know.

[Lord True (Con)]

That is the point. Currently, 06/21 refers to “Central Government”, as the noble Lord said, but his amendment applies to “all contracting authorities”, as I read it. If that is not the case, I will stand corrected and we will write a letter to explain that it applies to everybody, as he proposes. I am advised that his amendment goes further than the current procurement arrangements but, if that is incorrect, I will write a note.

[Lord Coaker (Lab)]

I thank the Minister for that. It is helpful. If I get a letter back saying that the amendment goes further than 06/21, with that information, I can change the amendment before Report or be satisfied and not need to. It would be very helpful of the Minister to clarify that in a letter; I wonder whether he might think of sharing that with other Members of the Committee.

[Lord True (Con)]

Yes, I hope that letters that are sent out are shared with other Members of the Committee and, if not, I will make sure that they are. I would not want to encourage the noble Lord too much in the hope, because the Government’s position is that we do not think it is advantageous to encrust the primary legislation with the range of aspirations that we have heard from many sides in this Committee. The noble Lord can have another try, but I cannot promise that it will be different. But I will write to him and circulate the letter anyway.

I respectfully request that these amendments be withdrawn or not moved.

[Baroness Noakes (Con)]

My Lords, we have had a very wide-ranging, and rather long, debate on this group of amendments. I will start with my noble friend Lord Lansley’s Amendment 61, on the list of strategic priorities. As I predicted, the Minister heard various lists of different kinds of things that noble Lords wanted in the Bill. Let me say that I was wholly convinced by my noble friend’s explanation of why they should be encrusted—as he put it—in the Bill, but I suspect that I am not representative of the Committee in that regard.

In respect of Amendments 63 and 64, my noble friend helpfully said that the Government would share the draft of a national policy statement as part of the consultation process, which I think clarifies that aspect.

I turn to the lead amendment in this group, Amendment 60—the may/must amendment. My noble friend the Minister argued for flexibility for the longer term; other Governments may not want to issue such statements, and I completely accept that. What I did not hear from my noble friend was that this Government commit to publishing a statement under this clause. I would have hoped that, at least from the Dispatch Box, the Minister would commit to publishing the statement, having included Clause 12 in the Bill. He talked about the timetable for the introduction of the Bill and the six months of learning process, but I did not hear what happens to the policy statement. I hope that he might reflect and perhaps give clarity on that in writing or at a later stage.

With that, I beg leave to withdraw.

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Moved by

[Lord True]

83: Clause 15, page 11, line 9, leave out “specifications” and insert “requirements”

[Lord True (Con)]

My Lords, the Government have the lead amendment in this group, and I look forward to hearing the comments of fellow members of the Committee. Although there is a large number of government amendments in this group, most of them are consequential, so there are actually seven points in the government amendments, which I will express as briefly as I can.

Amendment 83 to Clause 15 is a consequence of Amendment 93. It clarifies in Clause 18 that the authority’s requirements and award criteria are two separate concepts. The amendments make it clear that, to be awarded a contract, the supplier’s tender must satisfy the contracting authority’s requirements and be the most advantageous in terms of award criteria.

Amendment 94 to Clause 18 is technically a consequence of Amendment 126. Amendment 126 amends Clause 22 to make it clear that the contracting authority may set a number of award criteria against which it will evaluate tenders or may set only one criterion. That has led to consequential Amendment 113 to Clause 19.

Amendments 111 and 114 clarify the drafting to confirm that Clause 19(6) is talking about exclusion by reference to intermediate assessment of tenders in Clause 19(5)(b) and that the timing of assessment may vary.

Amendment 134 confirms that Clause 24 applies to the process to become a member of a dynamic market and a process for the award of a contract under a framework, as well as competitive tendering procedures under Clause 19. This has meant moving the clause to later in the Bill, and it will be under Chapter 6, “General Provision about Award and Procedures”. Amendments 137, 140 and 145A are all consequential.

Amendment 135 simply amends the term “terms of a procurement” to “procurement documents”. I know that noble Lords are rightly concerned about definitions. This is to ensure the clause operates effectively for the award of contracts under frameworks and for applications for membership of a dynamic market. Amendments 136, 138, 139, 142 and 143 are all consequential.

Amendment 145 expands the definition of “procurement documents” in this clause to cover documents used for frameworks and dynamic markets. I beg to move.

[The Deputy Speaker (Baroness Newlove) (Con)]

My Lords, I now call the noble Baroness, Lady Brinton, to speak remotely.

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The noble Lord, Lord Aberdare, made some really important points when talking to his amendments about the need to support small suppliers and the issues that many have with prompt payment. I know that the Bill is looking hard at doing something around late payment and prompt payment; I hope that we can achieve this positively through what we are doing today. I fully support the noble Lord in his efforts to improve this situation.

[Lord True (Con)]

My Lords, I thank noble Lords for another interesting debate that I have enjoyed listening to. Some thoughtful points have been made. I must say at the outset that Ministers are responsible for many things but we are not responsible for groupings. We just get told what we must do. It would have been quite possible, through the usual channels, to agree to de-group those amendments and put them separately but, as we say, “Them’s the breaks”.

Notwithstanding the illogicality that has been pointed out, I will address what is before us. By the way, I thank the noble Baroness, Lady Hayman of Ullock, for what she said about the official Bill team, who support us all in Committee on the Bill. I fully endorse what she said. Many of them are here to hear it; if they are doing their job, they will probably notice it in Hansard but, none the less, I will make sure that they do.

Amendment 101A, 528A and 528B, tabled by the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Coaker, and Amendment 528C, tabled by the noble Baroness, Lady Brinton, and the noble Lord, Lord Scriven, cover health and procurement, as we just discussed. I candidly acknowledge that, sometimes in life, there are minor frustrations. I know that the Committee is understandably wrestling with the issue. My noble friend Lady Scott—I am sorry, I always call her Jane—tried to answer the question asked by the noble Baroness on two occasions but I will come on to say what we have tried to do about this; indeed, I will now read out the answer that I have been given.

These amendments would significantly extend the rules in Clause 18 by imposing additional requirements on authorities to have regard to a range of health sector-specific issues when awarding contracts for the research, development or supply of health services or health products. As we have already touched on at various points in the debate, contracting authorities need to make procurement decisions on a case-by-case basis. It would not be appropriate to include wider policy objectives, such as those suggested, in primary legislation. This could jeopardise the achievement of value for money and make it harder for small businesses to bid for these health services and health products contracts.

Amendment 528C would override the healthcare procurement regulation-making powers set out in the Health and Care Act and make the Bill apply instead to all healthcare purchasing—the challenge set out by the noble Baroness, Lady Brinton. The position is that the Department of Health and Social Care is currently preparing regulations, following public consultation, which will implement a new provider selection regime specifically designed for the procurement of healthcare services delivered to individual patients and service users. Obviously, noble Lords will have the proper opportunity to scrutinise and debate the implementation of these powers when they are laid in Parliament, through the affirmative procedure.

On the question raised by the noble Lord, Lord Scriven, the recent DHSC consultation on proposals for its new provider selection regime acknowledges the need for integrated procurement for health and social care services. Existing procurement legislation recognises and provides for mixed procurement approaches, and relevant details will be included in the DHSC’s forthcoming regulations and guidance. Parliament will have the opportunity to scrutinise these under the affirmative procedure.

I know that noble Lords have said that they not entirely satisfied with this. It is the situation that clinical services for individual patients are with the health service. My noble friend highlighted—as I said on day three in Committee—that we would write to the noble Baroness, Lady Brinton, on how the interface between the Procurement Bill and the health Act will work in practice, I reassure noble Lords that that is being prepared. We will seek to pick up many of the questions that noble Lords have asked on each day of the debate so far, in this area. That will be put before your Lordships before we get to group 14—I hope it is not group 13—or whenever we get to it. It is being done, but I have heard what noble Lords have said. I can tell the Committee that I am also writing personally to the Secretary of State for Health to seek further clarity on when the regulations will be available for scrutiny. I have heard the requests from your Lordships in this area.

I turn now to Amendment 118 tabled by my noble friend Lord Lansley, whose appearance varies today—I will not hurt him by saying it is improved today. This amendment would modify Clause 20 to require the tender notice to provide a period during which “suppliers may ask questions” and have the answer provided “to all potential suppliers”. Under the Bill regime, there is nothing preventing potential bidders asking for further information or clarification of matters within the tender notice or associated tender notice documents; in fact, this is standard practice in procurement procedures. There is a risk that including a specific provision to this effect might suggest that questions cannot be asked outside that window. We would not want to suggest that there comes a point at which interested suppliers can no longer ask questions of contracting authorities. With that in mind, I hope I have reassured my noble friend—when he comes to read this section—that the Bill already allows for the circumstances he wishes to see.

Amendment 119 and others relate to the Prompt Payment Code. Amendment 119 seeks to require being a signatory to the Prompt Payment Code to be used as a condition of participation in the award of a public contract. We are committed to ensuring prompt payment to suppliers. However, requiring that every potential bidder becomes a signatory to the Prompt Payment Code to participate in the procurement would be too onerous a requirement. Therefore, while we encourage suppliers to sign up to a Prompt Payment Code, we do not consider it proportionate for us to legislate for it in this Bill.

Amendment 120, tabled by the noble Lord, Lord Aberdare, would extend the consideration of whether conditions are proportionate for the purposes of subsection (1) to include the accessibility of the contract to as broad a range of suppliers as possible. This is an abiding theme in your Lordships’ Committee. The primary purpose of Clause 21 is to ensure that the suppliers that participate in the procurement are capable of delivering the contract, but also that these conditions are restricted to only those which are needed to deliver the contract.

The noble Lord asked what we are doing to stop unreasonable requirements of SMEs and others, and I include in this broad range social enterprises and charities. As I say, the intention of Clause 21 on conditions of participation is to prohibit disproportionate or unreasonable requirements being put on contracts that would end up excluding SMEs. The authority must be satisfied that conditions of participation consider only the legal and financial capacity and technical ability of the supplier to perform the contract in question, and that there are proportionate means of doing so. We will look carefully at the noble Lord’s words. That is the intention behind Clause 21, but we will bear in mind what he said.

On the previous day of Committee, we discussed the importance of creating opportunity for SMEs and others. There was a broad ask from your Lordships. We think the clause as drafted helps with that, as conditions are pared back to focus on delivery. I have already committed to holding an engagement during the Recess about what more we can do to support SMEs. In the meantime, we consider that this amendment is not required, but we will give it some reflection. Is “reflection” a parliamentary word? It sounds like a word that one of the right reverend Prelates might use.

[Lord Davies of Brixton (Lab)]

Will the Minister make it clear: when he says SMEs, does that embrace small charities and voluntary organisations, which I know are anxious about their situation under the process?

[Lord True (Con)]

Yes, my Lords, I believe I did say that. In parliamentary terms, I am reiterating what I said. SMEs cover, for the purpose of this, voluntary organisations, social enterprises and charities. I think I have made clear my profound personal belief that these are part of the vital warp and woof of our society.

Amendment 121, proposed by noble Lord, Lord Wallace of Saltaire, aims to ensure contracting authorities take reasonable steps to verify that the supplier and any subcontractors are able to deliver the contract. Although we absolutely agree that contracting authorities need to do this in practice, we do not think it is necessary to add this provision into legislation, as the very operation of procurement is geared to this—the setting of conditions of participation, award criteria and evaluation processes, to name a few. While, as part of the Bill, we are improving supply chain visibility, we do not want to overengineer—noble Lords must have heard me say this too many times—legislative requirements for contracting authorities to investigate these matters in every procurement process as a box-ticking exercise.

Amendment 122A, which was proposed by the noble Baronesses, Lady Thornton and Lady Bennett of Manor Castle, and supported by others, would give the Minister the ability to exempt contracting authorities from the tests that must be satisfied when setting award criteria in order to allow policy priorities to take precedence to create additional public value. The Delegated Powers and Regulatory Reform Committee might have something to say about such an amendment if it were put forward by a Minister. It sounds very much as if certain rules need not apply in this particular place or contract. It certainly has a whiff of the dispensing power that the Glorious Revolution was designed to do away with, although I know noble Lords will say there is too much Henry VIII in too much legislation. So, in a technical sense it would be a difficult thing to do, but we think it would be undesirable.

We want all award criteria to be clear, measurable, relevant, non-discriminatory and proportionate to avoid unnecessary burdens on suppliers. We believe that this, together with our plans to publish a national procurement policy statement, which we debated earlier, and the requirement for authorities to maximise public benefit, will be sufficient. I have heard scepticism, but we believe that is the case.

--- Later in debate ---

[Baroness Worthington (CB)]

Sorry to interrupt, but just to clarify, it seems to me that the reference to “maximising public benefit” in the Bill is completely and utterly superfluous and has no meaning. The Minister’s response has further confirmed that the only criteria that can really be taken into account are value for money and cost. We will need to return to this at Report, because it now seems very clear that this is not an accident or some kind of desire for flexibility; it is really saying that there is only one thing that counts, and that is cost—and in the short term.

[Lord True (Con)]

I respectfully disagree with the noble Baroness. It is acknowledged from the other side that value for money is an extremely important criterion. It is one of the things in Clause 11. We have discussed mechanisms and we have had discussions about the national procurement policy statement, wherein, in the draft on the table, lie large numbers of things which the noble Baroness is seeking. It is frankly not the case to say that there is nothing in here other than value for money—that is not the Government’s submission to your Lordships. The Bill takes forward the change from the use of the term “most economically advantageous tender”, MEAT, to “most advantageous tender”, MAT. That is to reinforce the precise message that procurers can take a broader view of value for money than simply lowest price. We believe that the amendment tabled by the noble Baroness is not necessary.

Amendment 129A, in the name of the noble Lord, Lord Aberdare, would make it explicit in the Bill that contracting authorities must always include an objective mechanism for determining price or cost after contract award where and to the extent that value for money, but not price or cost, is evaluated when assessing which tender is the most advantageous. We believe that commercial practice and other provisions in the Bill mean that this amendment is unnecessary. It would be highly unusual for contracting authorities not to include an evaluation of price or cost when assessing value for money in their procurements. This is good commercial sense.

Further, contracting authorities are not free to act unbounded. The procurement objectives, including those in Clause 11, will apply. I do not think it is necessary to expressly legislate for it. We will, however, publish guidance to contracting authorities on evaluation. The noble Lord may well ask me when the guidance is to be published. He also asked how we can be sure that that guidance will bite further. It may be that I can come forward with further information after Committee.

I am sorry, I have been given a long speech—

[Baroness Noakes (Con)]

We would not mind if my noble friend made it shorter.

[Lord True (Con)]

I would be happy to. There were a lot of amendments. I do not want to break down and not continue, but I have about four more minutes to go. With the Committee’s permission, would my noble friend—

[Baroness Scott of Bybrook (Con)]

Would my noble friend like me to take over his speech, as he is coughing?

[Lord True (Con)]

Yes please.

[Baroness Scott of Bybrook (Con)]

My Lords, Amendment 131, tabled by the noble Lord, Lord Best, would prohibit contracting authorities applying relative assessment methodologies for price, costs or value-for-money award criteria, with the aim of preventing “race to the bottom” behaviour by suppliers and helping contracting authorities achieve safe, quality and value-for-money outcomes.

The objective of the Bill is to make public procurement more flexible for contracting authorities and suppliers, not less. In deciding how to assess tenders, contracting authorities must be able to determine what is important to them and the best means of assessing this. In some cases, price may be more important than others and, in particular, price assessment methodologies may be more appropriate in certain circumstances. I must also stress that contracting authorities will be very aware of the need for safe outcomes and that those cannot be compromised. To reiterate, we will publish guidance on assessment to help contracting authorities decide how best to assess tenders.

Amendment 147, tabled by the noble Lord, Lord Hunt, would require a Minister, within three years of the Bill being enacted, to undertake a review of the impact of the rules on how contracts subject to a competitive procedure must be awarded. In particular, the review must assess the impact of the change from “most economically advantageous tender”, commonly referred to as MEAT, to “most advantageous tender”, commonly referred to as MAT. On the delivery of social value, and whether the needs of service recipients have been met under contracts, the change from MEAT to MAT sends a much clearer message to contract authorities that the contracts do not have to be awarded on the basis of the lowest price. I can assure the noble Lord that the matters he refers to are within the scope of MAT, where they are relevant to the contract being procured.

Amendment 149, tabled by my noble friend Lord Lansley, would make explicit that contracting authorities may exclude a supplier where it has failed to explain satisfactorily why the price or cost proposed in its tender appear to be abnormally low. We discussed this point during a recent SI debate, and I welcome his contribution. I appreciate that tenders may appear abnormally low for a variety of reasons, some of which ought to concern contracting authorities. The Bill’s silence on this point is not intended to discourage authorities seeking to understand the proposed price and cost or interrogating suppliers where they appear to be abnormally low. Authorities are already under an overarching duty to award contracts to the most advantageous tender. This should be sufficient to allow for questions to be asked of suppliers about proposed price and costs, and authorities can structure their evaluation to ensure that tenders can be rejected where the authority has reason to believe a tender is abnormally low.

In summary, this Bill aims to deliver a simpler regulatory framework. It therefore does not include every possible action a contracting authority might wish to take in assessing the validity of tenders or awarding contracts. This approach is better than the existing EU approach, as it offers increased flexibility to design efficient, commercial and market-focused competitions, while reducing burdens for smaller firms. Therefore, I respectfully request that these amendments are not moved.

[Lord True]

My Lords, I thank your Lordships for your indulgence in letting my noble friend complete the speech. I am most appreciative. Thank you.

Amendment 83 agreed.

Procurement Bill [HL]

Lord True Excerpts

Committee stage
Monday 11th July 2022 Grand Committee

[Lord Scriven (LD)]

My Lords, I have listened with great interest to this debate and seen the tension between those who want what they call a flexible and open framework and those who want a more principles-based framework with an understanding of what public procurement is about. We have to be clear that the public procurement is not just about the monetary bottom line; it is about ensuring that social good comes from every pound that the public sector spends. It is not just about ensuring that value for money is the bottom line—the pounds and pence; it is about the environment, the local economy and trying to ensure that people have opportunity, and ladders of opportunity are sown in communities so that people can grow.

I have worked as a public sector employee, I have worked in the private sector on procurement, I procured in the public sector as a health service manager and, like others here, I have been a politician who set the framework for public procurement, particularly when I was the leader of Sheffield City Council. I think that, sometimes when we speak, we are divorced from reality. Most suppliers use a legal challenge not on the process but on the criteria and how those criteria have been judged for the award of a particular contract. I cannot think of any time in my life when I have been involved in procurement that a legal challenge has been brought against an organisation that I either worked for or have been a senior politician in where the criteria have not been the particular legal point on which a supplier challenges; it is not normally the process.

Interestingly, the noble Lord, Lord Moylan, gave many examples of why suppliers might not be able to do anything. Nothing in the Bill would stop that; in fact, the noble Lord, Lord Lansley, has an amendment in a future group that talks about having a more of an outcome approach to procurement, which would allow innovation. It would allow that innovation to be seen as something that it brought into the tendering process right at the beginning by going out to talk to suppliers about what outcomes were required, as the noble Lord suggests. So we have to be careful about how we frame this discussion and about saying that being less clear about principles and what is required will somehow stop legal challenge.

I would argue the other way: if there is no definition in the Bill of such things as value for money, that is a charter for lawyers to start saying, when a contract has been awarded, “What did you mean by value for money?” If over 400 different procurement authorities have a different view of value for money, and I am a supplier looking for a contract in 100 of them and everybody is giving a different definition, then legally there may be more challenges to come. There have to be clear definitions in the Bill of certain aspects, such as what we mean by value for money—or, interestingly, social value. Again, if there is no national definition of that, it is a lawyers’ charter.

The tension between what is in the Bill and having more flexibility has to be thought through. It comes down to what a number of noble Lords have said, namely that this Bill is very confused. It is complex and contradictory. It has not been thought through, particularly the elements which need to be clearly defined so that it does not become a lawyers’ charter. I ask the Minister, in replying, to say what we actually mean by social value. Once this Bill has passed, if I was a supplier, how would I know what value for money was? Will value for money be defined for every contracting authority and understood by every supplier? Or will it be open to local interpretation to determine what social value is? The Bill is contradictory and has some holes, but we should be very careful of saying that being more flexible stops lawyers challenging. Sometimes not having things in the Bill means that lawyers will challenge more.

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, I thank all those who have spoken. Lest anybody be alarmed by the coughing I have inflicted on the Committee and my not very brilliant voice, I should say that I tested several times over the weekend and this morning for Covid and the results have been negative.

It has been a very interesting debate. I have listened to it very carefully, including the many contradictions within it, which were summed up ably by the noble Lord, Lord Scriven. There are differences of opinion. Indeed, one challenge was laid down at the beginning by my noble friend Lord Moylan and spoken to eloquently at the end by my noble friend Lady Neville-Rolfe. Of course, we know the other extreme is the intervention from the noble Lord, Lord Coaker, who wished to use the Bill for very extensive potential government intervention.

All of us in this House and in public service care passionately about the principles in which we believe. Those principles differ and that is the nature of the change that can be made when Governments change. The question this Committee is wrestling with, and will I am sure continue to wrestle with through to Report, is the extent to which one encrusts the Bill with the total sum of all the hopes of those contributing to Committee, with some of the attendant risks that have been referred to in relation to litigation; or, at the other extreme, the extent to which one strips it down and concentrates on simplicity. There is an inherent tension, which is expressing itself in a very interesting and informative debate. I can assure noble Lords that, as we go forward, the Government will be listening carefully to both sides of it.

It started with Amendment 37 to Clause 10 and Amendment 460 to Clause 89, tabled by my noble friends Lady Neville-Rolfe and Lord Moylan. These seek to limit the scope of remedies for breach of statutory duty under Part 9 to compliance with only the procurement objectives in Clause 11.

A supplier’s ability to properly hold a contracting authority to account is essential for a well-functioning and fair procurement system and helps to ensure that contracting authorities comply with specific requirements under the Bill. Our submission, in presenting this legislation, is that, without such obligations to comply with the detailed provisions of the Bill, many of the important things that it seeks to deliver would fall away. For example, some of the transparency obligations in the Bill are intended to ensure early publication of information in order to support small businesses. If these cannot be enforced, we risk losing that important support mechanism.

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[Lord Scriven (LD)]

Would the Minister give way? That is one definition of local growth: that it has to be a local company that gets the business. Local growth is completely different: it could be subcontracting or the value sustainability that it puts into the economy, which gets to the nub of the problem. Without having clear definitions, we get these kinds of differences. Would the noble Lord agree that his definition of local growth is predicated on who gets the supplier contract but, actually, local growth could be much broader?

[Lord True (Con)]

My Lords, I will look carefully at what I have said and what the noble Lord has said. I think I said—and will repeat if I have not said it already—that it is important to have some flexibility, particularly at the lower end of contract letting, precisely to give local authorities and others the freedom of judgment for which the noble Lord asks. The more one codifies these aspects in statute, and tightens the definition, the greater the risk—this is something we have wrestled with in Committee—that one limits the flexibility that the noble Lord seeks for local action.

A formal regulatory evaluation of whether each public contract delivered “social value” and “local economic growth” could also be an unnecessary burden on contracting authorities. I repeat my view that local contract management should be able to judge the effectiveness of all aspects of the contract. The Bill makes provision for the publication of information on the performance of large contracts—currently, those valued at over £2 million—which we consider a reasonable and balanced approach.

The Government do not support the use of a debarment list for any purpose other than to designate suppliers that meet a ground for exclusion and have failed to address their risk. Debarment is a last resort to be used when a supplier poses a significant risk to contracting authorities or the public, following criminal or other serious misconduct. We do not consider it appropriate that failure to meet characteristics such as social value should form the basis of such a punitive sanction.

Amendment 46, tabled by the noble Lord, Lord Clement-Jones, who spoke with, as always, great passion and authority on these subjects, seeks to insert an additional principle on automated decision-making and responsible and ethical use of data when carrying out a procurement. The new data platform will deliver enhanced centralised data on UK public contracts and spending. All data that is published will be freely accessible through the central digital platform. This is in support of the objective set out in Clause 11(1)(c), which expects contracting authorities to have regard to the importance of

“sharing information for the purpose of allowing suppliers and others to understand the authority’s procurement policies and decisions”.

The data displayed in the platform pertains to the public sector’s commercial activity, including tender opportunities, contract awards, spending and so on. The UK’s historic commitments to data protection standards and public trust in personal data use will continue to be at the heart of the regime. The proposals build on the fundamental principles of the UK GDPR, and these will continue to underpin the trustworthy use of data to support our central digital platform.

The noble Lord asked why one would be reluctant to legislate for the ethical use of data and automated decision-making. We are not legislating for specific rules for certain sectors but instead setting the legislative framework for public sector procurement. In the same way that we are not legislating for the standards for construction projects, we are also not legislating for the standards for data projects. The Government already issue extensive guidance––the noble Lord referred to some of it—on best practice where appropriate, and contracting authorities should have that in mind when purchasing AI or data products and services.

The Government are resisting this amendment, as policies are still evolving at government level on ethical use of automated decision-making and data. This is a fast-changing world—as the noble Lord knows better than most—so legislating in the Bill could be a premature fix, as it were. I have already referred to the existing guidelines on responsible use of AI procurement for public sector organisations on how to use data appropriately. These evolving policies should be applied by contracting authorities as appropriate. That said, we are open to more engagement on this topic, and I have listened again very carefully to the points that the noble Lord makes. I can give an undertaking to him, as I did earlier to others, that we will engage with him between now and Report, because he is right that this is an important area. We are just cautious about seeking to fix specific things in legislation at the moment.

My noble friend Lady McIntosh of Pickering is, regrettably, unable to be here, for reasons referred to earlier in this Committee debate—and I confess I had nothing to do with that. Her amendments are around the subject of acting with integrity and being seen to act with integrity, which my noble friend Lady Neville-Rolfe also referred to. The integrity objective will oblige contracting authorities to consider how best to prevent fraud and corruption through good management, prevention of misconduct, and control. As well as oversight and control, open competition and the strengthened transparency requirements in the Bill will enhance integrity in public procurement.

It is essential that the procurement regime in the UK commands the trust of suppliers, the public and our international trading partners. While it is important that contracting authorities actually act with integrity—and that is a fundamental point—the objective is drafted as it is due to the importance that those observing procurements can see that contracting authorities are acting with integrity. We will, however, reflect on my absent noble friend’s amendment and the points made in debate, including the direct question that my noble friend Lady Neville-Rolfe asked me, to which I do not have an answer as I stand here, about precedents in legislation—clearly, her question will be in Hansard and requires an answer.

--- Later in debate ---

[Lord Wallace of Saltaire (LD)]

My Lords, although I am not a great expert on this subject, it seems that this is a case in which judicial review would be extremely easy because the question of how one justifies it is not spelled out here. Could the Minister perhaps write to us between now and Report about what criteria would then be used to justify the decisions taken? I entirely agree with the noble Baroness, Lady Neville-Rolfe, that one wants to ensure as far as possible that we do not leave large holes for judicial review to come in.

[Lord True (Con)]

My Lords, obviously I accept that, but we will certainly undertake to provide further information.

The noble Lord, Lord Scriven, was adumbrating cases where it should be possible to take different issues into account in terms of local activity. I understand the point that noble Lords are making about clarity. Clarity can either be sought through superdefinition, chasing the Snark through the end of the rainbow—sorry, I am mixing my metaphors—or it can be something for which the Government set out a clear framework that ultimately it is open to anyone in a free society to test under the common law. There is a balance to be found here and we will write further.

On Amendment 57, the noble Lords, Lord Wallace and Lord Fox, and the noble Baroness, Lady Bennett, complain that Clause 11 does not define value for money in order to leave a degree of flexibility for different types of organisation with different drivers to place a different emphasis on the concept. That is not unusual in legislation. Value for money as a concept is not uncommon on the statute book without further definition. It has been used in relation to setting high-level objectives for organisations, including the general duties of Ofcom in Section 3 of the Communications Act 2003 and indeed those of the Nuclear Decommissioning Authority in Section 4 of the Energy Act.

There are many precedents, I am told, but I have only given two of them where the term is left undefined, and this allows a degree of flexibility. We are happy with the broad interpretation of value for money, but Amendment 58 would have the effect of limiting the scope for future reviews of what value for money means. That is something that future Governments might wish to do. We do not support that position at the moment but, again, I am ready to listen to further discussion in Committee.

Amendments 128 and 130, tabled by the noble Lord, Lord Davies of Brixton, amend the provisions on award criteria. I am grateful to the noble Lord, first for the explanatory statement which sets out that his amendment intends to ensure that value for money does not override other procurement objectives, and secondly for his exposition of it. While it is important to be clear that Clause 22 does not affect the relative weighting of the objectives in Clause 11, I am grateful to the noble Lord for his consideration of this point and respond on that basis.

Public procurement needs to be focused on achieving value for money, and we submit that this is rightly at the top of the list of objectives set out in Clause 11. The noble Lord laid an amendment, the second part of which would in effect—taken literally—relegate or at least abnegate the possibility of placing value for money exclusively at the top. Our submission is that, while value for money will be the highest priority in procurement for the Government and that is reflected in the drafting of the Bill, it does not disapply or override the obligation on contracting authorities to have due regard to the other matters in Clause 11. I have no doubt that this will be probed further, but I hope that this will reassure the noble Lord that the amendment is not only unnecessary but, in its detail, we could not accept it. There is a balance to be sought here, and that balance will be seen differently by successive Administrations in successive places.

There was a very interesting range of amendments put forward in this group. I have listened carefully, and we will engage further on the points raised. I hope on that basis that noble Lords will feel ready to withdraw or not move their amendments.

--- Later in debate ---

I was interested in the comments by the noble Lord, Lord True, last week. He essentially said that my noble friend was making a dangerous attempt by the Labour Party to constrain private companies that sought to provide—

[Lord True (Con)]

That is what the noble Lord said.

[Lord Hunt of Kings Heath (Lab)]

No, the noble Lord, Lord True, was interpreting what my noble friend said.

[Lord True (Con)]

I always like to use two words when either reduces to one.

[Lord Hunt of Kings Heath (Lab)]

I could get into trouble quoting the noble and learned Lord, Lord Judge, to himself on constitutional issues in the Schools Bill, but surely I can quote the noble Lord, Lord True, to himself. He interpreted my noble friend’s words of wisdom as a dangerous attempt by my party—the Labour Party—to constrain individual private companies that sought to provide public services to conform to the will of whatever its wishes in power might be. If only.

I think my noble friend was really saying—no doubt he will come back if he thinks I have got it wrong—that this Bill presents us with a unique opportunity to influence a huge public spend in the direction of policies that we wish to see implemented. In today’s environment, climate change and sustainability are essential. One way or another, this Bill will leave this House with some form of words on that in it, and I doubt very much whether the Government will be able to take them out, bearing in mind that this is a Lords starter.

Functioning of Government

Lord True Excerpts

Thursday 7th July 2022 Lords Chamber

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, with the leave of the House and as I am required to do, I shall repeat as a Statement the Answer given by the Minister for the Cabinet Office to an Urgent Question in the other place. The Answer is as follows:

“Mr Speaker, as the House will be aware, it is widely reported that the Prime Minister is about to make an important statement shortly. I can confirm that it is correct that the Prime Minister will speak shortly. I cannot pre-empt the Prime Minister’s statement, and the House and the nation will hear more imminently. In the meantime, the business of government continues, supported in the usual way by our excellent Civil Service. There will continue to be Ministers of the Crown in place, including in all great offices of state. We must continue to serve our country, constituents and the general public first and foremost. It is our duty now to make sure the people of this country have a functioning Government. This is true now more than ever.

The Civil Service is the foundation on which all Governments function. The Civil Service continues to support all government departments, and the country can be assured that this will always remain the case—I have spoken this morning to the Cabinet Secretary to that effect. Any transitional arrangements have always been made to allow for the business of government to continue. There are constitutional mechanisms in place to make sure that can happen.

We await the Prime Minister’s statement, but the House should be reassured that the Government continue to function in the meantime. Any necessary ministerial vacancies can and will be filled; other Secretaries of State can make decisions if necessary. There is a rich reserve of people who are both dedicated and talented, and who remain dedicated to serving our country and their constituents. Calmness and professionalism are now required. Our focus now is fully on the stability and continuity of government. Now is the time to serve in the interests of our country, as it always is, and of our constituents during the period ahead.”

Of course, my Lords, since that Statement was delivered in the other place, the Prime Minister has now made his statement on his intention to stand down as leader of the Conservative Party. Noble Lords will also have seen that Cabinet appointments have been made.

[Baroness Smith of Basildon (Lab)]

My Lords, I thank the Minister for doing that. He is quite right that the Prime Minister, in his extraordinary statement, has stood down as the leader of the Conservative Party, but what people across the country just do not understand is how his MPs can be absolutely clear that he is unfit to lead the Conservative Party yet they are prepared to allow him to remain in Downing Street for at least another three months, where he is appointing a new Cabinet and new Ministers and that Cabinet is meeting this afternoon. Boris Johnson has not changed one bit. The qualities that his MPs are now saying make him unfit to govern were there when they voted for him to be Prime Minister.

Does the Minister agree with John Major, who has just written to Sir Graham Brady to say:

“For the overall wellbeing of the country, Mr Johnson should not remain in Downing Street”?


Anyone who listened to the statement in Downing Street would have been quite surprised that the Prime Minister has no concept that he has done anything wrong. He described the decision to remove him as “eccentric”.

With so many of these new Ministers—some of them are old, recycled Ministers—being put into the Cabinet and into ministerial jobs having already described the Prime Minister as untrustworthy and incompetent and having stated that they have no confidence in him, how can such a dysfunctional Government even attempt to govern?

The Minister will be aware that in the other House Bill committees have been cancelled, and in this House, as seen in the Schools Bill, the Procurement Bill and the Delegated Powers Committee report on the protocol Bill—I do not know whether he has yet seen it, but it is devastating—the Government already do not have a grip on legislation. With these new Secretaries of State appointed by the lame duck Prime Minister, what will the impact be on legislation planned for this House—or is it the case that, with the Prime Minister still in Downing Street, and as so many of us fear, there is no real change at all?

[Lord True (Con)]

My Lords, there is a good old tradition of decency in our country that one does not dance on the grave even of a fallen enemy. The Prime Minister has announced his resignation as leader of the Conservative Party, and appropriate arrangements will be put in place. When the Labour Party forced out Tony Blair without an election, Mr Blair remained while his successor was being put in place. The noble Baroness opposite should know that it is a perfectly normal and proper constitutional arrangement for the Queen’s government to be carried on and for the outgoing Prime Minister to remain until such time as he or she is in a position to recommend a successor to Her Majesty the Queen. Not to proceed in that way would involve Her Majesty the Queen in invidious decisions in relation to who might succeed, which is not something that should happen in this country. The constitutional arrangements which are in place, and have been in place, will be followed. As the Prime Minister said today, as soon as the leadership is determined and the chosen successor is clear, he will resign.

[Lord Wallace of Saltaire (LD)]

My Lords, of course Her Majesty’s Government need to go on during this moment of very considerable external economic and political difficulty, but does the Minister accept that a great deal now needs to change? I see that the Daily Mail is still attacking any alternative to this Government as a “coalition of chaos”. However, the chaos that this Government have succeeded in creating with a single party seems to make that a very difficult case to put forward.

The relationship between government and Parliament needs to change. The attitude of government to the conventions and constraints of our unwritten constitution needs to change sharply. The relationship between government and the civil servants needs to change. If the noble Lord continues in office—with perhaps a new Minister in the Commons responsible for the constitution—will he insist that constitutional behaviour must absolutely be part of what the next Government do and that some constitutional change is essential to bring back confidence in public life?

[Lord True (Con)]

My Lords, the Government will continue their work to deliver the programme on which they were elected. We set out our programme for this Session in the gracious Speech. The Government remain in action, and the Leader of the House of Commons has announced a forward programme for business in the other place. The usual channels have announced the programme for this place, and I look forward to day three of the Procurement Bill on Monday in Grand Committee.

[Lord Howell of Guildford (Con)]

My Lords, we are entering an incredibly dangerous period internationally —in fact, we are in it already. In the next two or three months, the threats to our national security and prosperity will be on the verge of existential, so we need steadier government. I agree that there is an obvious need for all politicians and political parties to calm down a bit and allow procedures to fall into place. However, I am genuinely interested in how filling the ministries is going to work. Will the Secretaries of State who resigned get their seals back? Did I get that hint in the Statement? How are details of that kind going to be managed? Will the dismissed Ministers be reinstated, or will there be a new list to replace those who were dismissed? We would like to know, because we need calm government for the next three months of incredible danger.

[Lord True (Con)]

I do not agree with the tenor of the remarks of my noble friend. The announcements on Cabinet appointments were made this morning, and the list is available. It is not the case that all who were in office before will be returning to office—some may and some may not; this is a matter for the Prime Minister. But the Cabinet posts have been filled already.

[Lord Fowler (CB)]

My Lords, following up the question of the noble Lord, Lord Howell, surely the transitional process can be quickened up; it is not written in stone that it should last for three months. It must be possible to allow the constituencies to have their say much more quickly—it is very important that they have their say. It is much better to do that than to try to find some substitute figure to come in as an alternative Prime Minister. In any event, we have far too many people playing in this game. Why do we not just quicken up the process?

[Lord True (Con)]

I think many of us would agree with my noble friend’s sentiments. I have set out the constitutional position which always applies when a Prime Minister resigns—it applied when Mr Cameron went, when Mr Blair went and when Mrs May went. The Prime Minister will continue until a successor is in place. I agree that that should not take too long, and I also agree that the would-be candidates should be examined to some degree. The position in the parliamentary party is a matter for the 1922 Committee, not for me. I believe an announcement will be made shortly. Ditto, as far as the Conservative Party is concerned; I am sure the announcement will be made. In so far as I as an individual have a view, I agree with my noble friend’s sentiments.

[Lord Dubs (Lab)]

My Lords, it is not normal—in fact, it is quite unusual—for a Prime Minister to resign on the back of 50 ministerial resignations that pushed him out. What happens to those Ministers, some of whom have been in office for a day or two only, or have been reappointed? Do they get their full redundancy money?

[Lord True (Con)]

My Lords, obviously that is covered by statute. So far as I understand it, if the Prime Minister, or a Prime Minister, chose to reappoint a Minister within three weeks, they would not receive a severance payment. In the case of someone who has been there briefly, I believe there is a statutory requirement, but I understand that in the case of the individual concerned—I will correct the record if this is not correct—she has indicated that if she were given money, she would give it to charity.

[Lord Purvis of Tweed (LD)]

My Lords, apparently, for weeks, if not months, we will have a half-time Government on full-time pay. Further to the question from the noble Lord, Lord Dubs, these resignations were not by virtue of the performance of the Ministers concerned, and nor were they were removed from office because of performance. They chose to resign because of the choice of leader of the Conservative Party. Is it therefore not outrageous that taxpayers will be paying, according to the BBC, up to £420,000 in severance pay? Surely, there is discretion within the regulations to allow this to be offset, simply because it is to do with Conservative Party management and not the performance of government. The taxpayer should not be paying this.

[Lord True (Con)]

My Lords, there is not a part-time Government; there is a full-time Government, and the work of the Queen’s Government will carry on. Regarding the position on severance pay, some of these Ministers may come back to public office, some may not. There is a statutory position which has applied under successive Governments, and that will be applied according to the law and under the guidance of the Cabinet Secretary.