Procurement Bill [HL]

Baroness Humphreys Excerpts

Committee stage
Monday 4th July 2022 Grand Committee

[Lord Davies of Brixton (Lab)]

My Lords, I totally agree with everything that has been said. The rubric “technical amendments” has been bandied about in these discussions. The next group of government amendments, and the one after that, are described in the email from the Whips’ Office as “technical”. This group is not described as technical. If it is not technical, my presumption is that there are substantive changes involved and that no one, least of all the Minister, has told us what they are. I cannot see how we can agree the amendments today unless we are told what the substantial changes involved are.

[Baroness Humphreys (LD)]

My Lords, I apologise for not having spoken at Second Reading. I have taken a keen interest in the Bill, particularly in the devolution aspects. I will speak to government Amendments 355, 392 and 433.

I share the concerns of my noble friend Lord Fox, who speaks for the whole Lib Dem team, and other Peers who have spoken about the manner in which the Bill has been presented to us. Like others, I am particularly concerned about the large number of new government amendments tabled last week, the vast majority of which had no Member’s explanatory statement attached to them. The confusion over the weekend, when some amendments were removed from groupings and others were duplicated, must have been as stressful for staff as it was for Members trying to prepare for today. I echo my noble friend Lord Fox’s admiration for the efforts of the Government Whips’ Office staff.

Had the Government withdrawn the Bill after Second Reading, taken some time to incorporate the 300-plus amendments into the body of Bill and presented us with an entirely new document, life would have been so much easier for us all, including the Minister. Of course, it is not the Government’s job to make life simpler or easier for us, but it is their job to help us make good legislation, as the noble Baroness, Lady Hayman, said. We have the potential to be, as we are now, in a situation fraught with difficulties, confusion and recriminations.

Having made my own personal protest about the Bill, I must commend the UK Government and the Welsh Government on the working relationship between them as they work together on issues in the Bill. We heard from the Welsh Finance Minister about the excellent working relationship and the efforts of all concerned to approach discussions in a cordial and constructive manner. I thank the Minister for that.

I understand that a number of amendments have been agreed between the two teams and that some of them are in this group, but I am slightly worried that in all the confusion with the tabling of 342—or is it 350?—new government amendments, key agreements might be missed out or overlooked. It would help us greatly to scrutinise the devolution aspects of the Bill if we could receive a list of the agreements between the two Governments and the amendments to which they refer.

I am pleased that the three amendments I am speaking to recognise the role of the Welsh Ministers. In Amendment 355 to Clause 64, “An appropriate authority” is replaced by the more specific

“A Minister of the Crown or the Welsh Ministers”,

recognising the role of Welsh Ministers in the publishing of payment compliance notices.

Amendment 392 adds new subsection (12) to Clause 70:

“A Minister of the Crown or the Welsh Ministers may by regulations amend this section for the purpose of changing the percentage thresholds.”


In Amendment 433 to Clause 80, the reference to

“A Minister of the Crown or the Welsh Ministers”

confirms the amending power of Ministers in relation to changing the number of days within which sums may be paid.

All these are very welcome, but I would have been grateful for explanatory statements to help me decipher which of the other 300-plus amendments have implications for devolution. Can the Minister confirm that all the amendments requested by the Welsh Government have been included? Are there any outstanding issues that would prevent the Senedd passing an LCM for the Bill?

[Lord Wallace of Saltaire (LD)]

My Lords, I do not want to prolong the debate. I must say that, having spent the weekend worrying whether I was thick-headed in not understanding the concept of a covered contract, I am relieved to discover that I am by no means alone. In a different tone, we on the Liberal Democrat Benches are very grateful to the Minister for the extremely helpful briefing we had today on the digital platform. That is precisely the sort of relationship we should have as we approach a Bill such as this one.

The Minister should remember that, while the Government are having their own consultations with outside interests, we are doing the same, with rather fewer staff. We have had some very helpful conversations over the past two weeks with various outside interests and groups, and will continue to have others. But, of course, we have had no opportunity to discuss with them the implications of the latest amendments which the Government have tabled. Some 60% of the current amendments are government amendments, and a minority come from outside the Government.

We have heard so far that this Committee is in no sense convinced that Amendment 1 is necessary. We have all struggled to understand why the Government have introduced all these amendments, and some of us have struggled with various other concepts in the Bill. I am grateful to the officials who explained the concept of dynamic markets to me; I am still not entirely sure that I understand the difference between a centralised contracting authority and a contracting authority, and we have tabled an amendment on that. These things are important in getting the Bill through. It takes time and it takes sympathy between the Government and those trying to scrutinise the Bill. As the first House to do this, we are now clearly in some difficulty over where we have got to.

Procurement Bill [HL]

Baroness Humphreys Excerpts

Committee stage
Wednesday 26th October 2022 Grand Committee

[Lord Lansley (Con)]

My Lords, these are different subjects, and before we turn to how regulations are to be agreed, I will turn to Amendment 527. It might be helpful if colleagues, if they have a moment, look at Schedule 11. Clause 107 sets out in Schedule 11 the repeals of legislation resulting from this legislation. The third item under “Primary legislation” says:

“An Act of Parliament resulting from the Trade (Australia and New Zealand) Bill that was introduced into the House of Commons on 11 May 2022.”


My amendment relates to whether it would be appropriate for the whole of that piece of legislation to be repealed if it were amended in the other place or in this House. As it stands at the moment, the Bill implements the procurement chapters of the two agreements. They will be implemented by their being added to Schedule 9. That is absolutely fine—it is not the issue. The issue is if the Trade (Australia and New Zealand) Bill is amended. It was not amended in Committee in the other place, but there is an amendment down on Report in the other place in the name of Nick Thomas-Symonds, for the Official Opposition, which adds a clause that says:

“The Secretary of State must publish an assessment of the impact of the implementation of the procurement Chapters within twelve months of the coming into force of Regulations made under section 1 of this Act and every three years thereafter.”


It probably will not be passed, but let us say for the sake of argument that an impact assessment was passed here—or an impact assessment or report on the impact was required here in relation to the Australia and New Zealand trade agreements more generally—into the Trade (Australia and New Zealand) Act. I think either House would then expect it to happen. However, it would probably not happen because the Procurement Bill will become the Procurement Act, and when it comes into force it would repeal the Trade (Australia and New Zealand) Act and all that is in it, regardless of whether it has been amended.

The point of my Amendment 527 is to repeal the provisions of the Act resulting from the Trade (Australia and New Zealand) Bill in so far as they were included in the Bill at its introduction. Therefore, if there is an amendment, it would not be repealed by virtue of this provision. That is the question. We are at the stage of having further conversations, and I would be very happy to have further conversations with my noble friends about this matter before we get to Report.

[Baroness Humphreys (LD)]

I will speak reasonably briefly to Amendment 491 in the name of the noble Lord, Lord Wigley, to which I have added my name. I thank the noble Lord for outlining the reasons for this amendment so clearly. I reiterate my thanks to the Cabinet Office and its civil servants, which I expressed earlier in Committee, for their constructive and positive engagements with Welsh officials. I know they have worked closely to ensure that Welsh policy objectives have been included in the Bill.

The issues that Amendment 491 highlights arise in Clause 99 and have been the subject of discussion between the two parties for some time. Like the noble Lord, Lord Wigley, I understand that the Welsh Minister for Finance and Local Government wrote to the Minister for Brexit Opportunities on 18 May to ask the UK Government to consider an amendment to the Bill to address her concerns. I hope that in the intervening five months, some agreement has been reached between the two parties.

As the noble Lord pointed out, this is a probing amendment designed to tease out, first, the problems that arise from the definition of Welsh contracting authorities and, secondly, the issue of ensuring that both clauses work more fairly in relation to some cross-border procurements. The definition of Welsh contracting authorities initially proposed by the UK Government was that of a “devolved Welsh authority”, as defined in the Government of Wales Act 2006. However, as the Welsh Government have pointed out, that does not accurately reflect all the contracting authorities in Wales that should be on the list of Welsh contracting authorities. Clauses 1 to 3 of the Bill now set out a broader definition of a devolved Welsh authority. However, there is still a concern that the breadth of contracting authorities that are not DWAs within the GoWA definition, but are to be treated as DWAs for the purpose of the Bill when they carry out a cross-border procurement, does not go far enough.

My real concern is about Clause 99(3)(b)(i), which provides for those contracting authorities that are to be treated as DWAs for the purpose of the Bill and bound by the Welsh rules where the authority is awarding a contract for the purpose of exercising a function wholly in relation to Wales—the point that the noble Lord, Lord Wigley, raised—but not for any other procurements, including cross-border ones. That word, “wholly”, means that the Welsh Government play no part in this. Ultimately, this means that, even if 90% of a cross-border procurement is for use in Wales, the English elements of the rules would apply. To me, that smacks a little of the lion wanting to take the lion’s share.

We on these Benches agree with the fairer and more pragmatic approach suggested by the Welsh Government: to follow Regulation 4 of the Public Contracts Regulations 2015 for mixed procurements. This would allow for cross-border contracts to be procured depending on the main geographical location of the contract; on which financial value was the highest; or on where the majority of the services, goods or works were being delivered. The Welsh Government have suggested that, where more than half of the procurements are to be delivered in Wales, the Welsh procurement rules should apply. They contend that, in the event of a 50/50 split, the English rules should apply. The insertion of the words “or mainly” following “wholly” in Clause 99(3)(b)(i) would achieve this end.

These proposals by the Welsh Government seem reasonable and fair. They would redress the balance between the two parties on cross-border procurement, and are supported by the Lib Dem Benches. I look forward to the Minister updating us on where officials are with these issues and hope that the spirit of positivity and co-operation that has characterised the negotiations on this Bill extends to the issues in Clause 99.

[Lord Fox (LD)]

Coming from Herefordshire as I do, I comment on matters Welsh with great trepidation. I commend the two previous speakers on this amendment. If the Minister could see common sense in what they have said and sort out the situation, that would leave the Welsh Government in a very comfortable place. I do not like to speak for the Welsh Government but that is my understanding of it.

Amendment 527 in the name of the noble Lord, Lord Lansley, looks as if it ought to have been in the previous group. It sounded like he was describing the special case of the problem set out by my noble friend Lord Purvis; it therefore seems to me that he should be part of that future meeting. Indeed, that special case should be covered in the Minister’s letter before we have the meeting so that we can take it forward. That would be the sensible way.

Two amendments have my name on them: Amendments 529 and 531. The Minister will be glad to hear that I am not going to speak at length on either except to say that they are on a subject she has spoken to, as I noted on Monday when I welcomed her to her new role, because the Executive taking power over the legislature is something on which she has spoken many times. I have spoken about it at length during the passage of lots of other Bills because it is something we get time and again.