Procurement Bill [HL]

Lord Fox Excerpts

Committee stage
Monday 24th October 2022 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

My Lords, I shall speak also to Amendment 180. It seems a long time since we were in Grand Committee debating the Bill: quite a lot of things have happened since. I am sure the Committee would wish me to welcome the noble Baroness, Lady Neville-Rolfe, to her position. I wish her a degree of permanence—at least until the next election. Of course, she still has some amendments in her name to come. I know we may have debated them, but it is her opportunity to re-educate her department and come back with rather more robust responses than she received from the noble Lord, Lord True, although I express my thanks to the noble Lord for his stewardship of the Bill and his willingness to engage in debate with your Lordships on this important legislation.

I move on to my amendment. A few months ago, the Centre for International Corporate Tax Responsibility and Research and TaxWatch published a report on Amazon’s most profitable segment, its cloud computing business, which they argue is increasingly indirectly supported by taxpayers through hundreds of billions of dollars and pounds in government contracts around the world. In the UK, it said that Amazon’s cloud computing business won almost £600 million in government contracts between 2018 and 2021. It also highlighted that in 2020 Amazon signed a master agreement which allows it to treat all UK central government agencies as one client, which will further increase the volume of its UK contracts.

Despite Amazon collecting public money through large and rapidly growing government IT contracts, the tax payments of this company remain opaque. Indeed, a 2021 research report into Amazon’s tax practice shows that only a fraction of the company’s UK sales are accounted for in its UK accounts. Sales in the UK and elsewhere appear to be channelled through subsidiaries in Luxembourg and, although Amazon says that UK revenues recognised in Luxembourg are reported to HMRC, there is no public accountability as Luxembourg accounts do not disclose how much tax, if any, the company is paying in the UK. Amazon’s practices are replicated by many multinational companies, and the aim of my amendment is to press the Government to use the Bill to start to take some action. The Bill offers a chance to ensure an increase in transparency around the tax affairs of potential suppliers of government contracts. It also offers the opportunity to ensure the exclusion of companies that have engaged or are engaging in egregious tax abuse.

Tax non-compliance has been a potential ground for exclusion from government contracts for some time. In 2013, the Cabinet Office issued Action Note 06/13, which sought to ensure that companies bidding for government contracts declared any tax non-compliance in the procurement process, but this has had no effect whatever. Following FOIs to more than 40 government departments by the think tank TaxWatch, not a single incidence of the supplier being excluded was reported. It was also clear that very little compliance monitoring was occurring. The majority of departments responded saying that there were no incidents reported, but not every department even provided that response; some said they were unable to answer as it would take too long to respond. Will the Minister tell me why departments are so weak in holding these companies to account?

The Bill currently includes misconduct in relation to tax as a mandatory exclusion ground in Schedule 6, Part 2, but mandatory exclusion grounds do not mean that the supplier must be excluded from a procurement competition. A supplier becomes an excluded supplier only if it qualifies for a mandatory exclusion ground and

“the circumstances giving rise to the application of the exclusion ground are likely to occur again”.

The legislation also covers participation in defeated avoidance schemes. The mandatory exclusion ground covering defeated tax avoidance schemes includes instances where a tax return has been amended due to the participation of the taxpayer in a tax avoidance scheme and where the taxpayer has reached a settlement with HMRC, in which case there is no need for the person to receive an adverse judgment in a tax tribunal. When it comes to individuals and companies that have engaged in tax avoidance, the provisions of the Bill are wide-ranging but mandatory exclusion grounds apply only where there has been an assessment by HMRC. That assessment is final, meaning that any appeal rights have been exhausted.

We know that tax litigation is often complex and sometimes takes an exceptionally long time to wind its way through the justice system. When it comes to large companies, including the multinationals, it is common practice for the tax authority to settle tax disputes without penalties being charged.

We know that major companies—Amazon, Google and General Electric—have been investigated in recent years by authorities around the world for committing serious tax offences, but in each instance they have settled rather than admitting guilt and receiving full penalties. As such, none of these companies is barred from procuring government contracts and, with that, taxpayer money. The exact terms of these settlements are not always available to the public. Often settlements between major corporations and tax authorities involve an adjustment to tax liability without an admission by the company engaged in any wrongdoing; the dispute is simply characterised as a difference of opinion over a tax treatment. One way to strengthen the Bill would be to require a company to disclose whether it was currently under investigation for tax offences in the UK or abroad, or where the company had reached a settlement with a tax authority following an investigation for a tax offence.

The Global Reporting Initiative tax standard is a finance reporting standard that provides enhanced public transparency for companies and their tax payments. In particular, it provides for companies to report their economic activities in each country where they operate and the taxes paid in each country—country-by-country reporting. This is a transparency mechanism for revealing corporate tax avoidance. This often involves a company moving profits from higher-tax countries into tax havens. If a company is engaged in profit shifting, that will appear in country-by-country reporting by a company showing very high profits in low-tax countries where the company has little economic activity, and low profits in higher-tax countries where much more activity takes place. For example, Amazon does not provide a breakdown in its accounts of revenues, profits and tax payments in non-US markets by jurisdiction, making it difficult for investors, the public and tax authorities around the world to evaluate whether Amazon is engaged in responsible tax practices.

The implementation of the GRI would allow for some necessary scrutiny. A group of Amazon investors put forward a shareholder resolution at the Amazon AGM in May 2022 calling for greater transparency in the company’s tax affairs and to make disclosures in line with the GRI. That resolution was defeated but was backed by 21% of independent shareholders. Country-by-country reporting is mandatory for multinationals engaged in the extractive and logging industries under rules implemented by several legislatures around the world. Country-by-country reporting is mandatory in the banking sector under EU legislation. Numerous multinational organisations now voluntarily report using the GRI tax standard. My amendment would require all large companies bidding for government contracts to produce a copy of reporting under the GRI tax standard. In addition, the supplier should report details of any tax investigations and report where it is based in a tax haven or is a subsidiary of a person based in a tax haven.

My second amendment would provide for a Minister to lay regulations listing those jurisdictions that are considered to be providing a tax haven to suppliers. Clearly my amendments are not the whole answer to the issue of tax shifting by multinational companies, but using the Bill would be one of the stepping stones that we could take to a much fairer tax situation in this country. I hope the Government will be sympathetic. I beg to move.

[Lord Fox (LD)]

My Lords, I rise as a cipher for my noble friend Lord Wallace, who has tabled a number of amendments in this group. He is unable to attend this and the next day in Committee, so I will be deputising for him.

I too welcome the noble Baroness, Lady Neville-Rolfe, to her new role, and congratulate her on getting to complete this Bill, which must be regarded as the plum legislative job available—so I say “well done” to her. During a debate on the economy a couple of weeks ago, she said from the Dispatch Box that she was very keen on “simplification” and cited simplifying procurement as being in her sights—now, here she is. However, before her well-deserved promotion, on the third day in Committee on 11 July, “Back-Bench Lucy” was more strident. She said:

“The more I listen, the more I feel that this Bill in many respects strikes the wrong note. It is overregulatory and calls for a rethink, which I hope the Government will be thinking about.”—[Official Report, 11/7/22; col. GC 359.]


On those grounds, I suggest that she should exercise her new power, withdraw this poorly drafted Bill and come back with one more in keeping with simplification and with her aversion to overregulation.

In the absence of any enthusiasm from the Minister for doing that, I speak to Amendments 306, 307, 308, 320 and 328, tabled by my noble friend Lord Wallace, some of which I have signed; I do not support all of the others. I thank the noble Baroness, Lady Hayman of Ullock, and the noble Lord, Lord Hain, for their support for Amendment 320.

An effective debarment and exclusion regime protects the public purse from rogue actors and drives up corporate government standards. Exclusion and debarment from procurement are potent anti-fraud and anti-corruption tools. The issue of companies with long records of corruption winning public contracts in this country is appalling. Nearly a quarter of local councils experienced fraud or corruption in 2017-18. Fraud costs the public purse up to 5% of government spending overall. I thank Spotlight on Corruption for these numbers.

The UK’s record on excluding these types of companies from participating in public procurement is not good, at best. The list of companies either from the UK or operating here that have been shown to have engaged in serious corporate misconduct is unfortunately lengthy and well publicised; yet, under the existing debarment regime, it has been, in practice, all but impossible to apply a discretionary exclusion in the absence of a conviction. There has been very little use of exclusion in the UK to date under current EU-based rules, and the Procurement Bill is an opportunity to address the weaknesses in those rules that have prevented exclusion from being used effectively to protect the integrity of the public purse. I am sure that the Minister would approve of replacing an EU law with a better UK law—these are suggestions for how to make it better.

This Bill as formulated contains some significant issues and crucial gaps that could seriously undermine the effectiveness of the debarment register and exclusion regime. There is a risk that the register will stand empty for many years, which would undermine the reputation of the register and the UK’s anti-corruption efforts in general. It is therefore crucial to get this right at this critical stage of the Bill’s development.

Amendment 306 seeks to make criminal offences for sanctions evasion grounds for exclusion from public procurement. The Bill currently contains no references to criminal offences for sanctions evasion. Given the Government’s current policy of imposing sanctions to ensure its foreign policy goals in relation to Russia’s invasion of Ukraine, and their ambition to use sanctions to achieve important foreign policy goals to be a force for good globally, this is a major omission. Incorporating criminal offences for sanctions evasions in the Bill would make companies across the UK take their obligations to comply more seriously. This amendment redresses this omission.

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[The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)]

My Lords, I thank all noble Lords for their kind welcome on my appointment as Minister of State at the Cabinet Office. I echo the words of the noble Lord, Lord Hunt, about my predecessor, my noble friend Lord True, and his willingness to engage—a model I will try to follow. I am very much in listening mode today, as we are still in Committee, working on the Bill.

I am poacher turned gamekeeper, and that can be a good qualification. As noble Lords know, I have consistently taken a keen interest in the Bill, although from a slightly different perspective. I will not delay you with a long introduction, but I am pleased that the Bill consolidates 350 EU regulations. That is simplification at a stroke: it streamlines public procurement and reduces burdens on business, and it turns EU-based law into UK law, which is why we can be confident of its progress.

In particular, it will benefit SMEs, for which we must do our best to offer a level playing field, so that they can increase their share of the £300 billion spent by public authorities each year. I think the noble Baroness, Lady Bennett, will agree with that. I am also looking forward, if I get the chance, to rolling out training on the Bill—simple, clear, comprehensive training in central and local government, and elsewhere. That will answer some of the concerns that I and others across the House have had on the Bill.

I thank noble Lords for their contributions on the grounds for financial exclusion and will try to respond constructively. I begin with Amendments 177 and 180 tabled by the noble Lords, Lord Hunt and Lord Hain. These seek to ensure that the suppliers who fail to provide contracting authorities with various details in relation to their tax affairs when bidding for contracts must be excluded from procurements. I should start by making it quite clear that the Government expect businesses to take all necessary steps to comply with their tax obligations.

However, noble Lords will know that the basis on which contracts must be awarded under the Bill is by reference to award criteria that relate to the contract being tendered, not to other matters such as where a supplier pays tax. This is the right principle to deliver value for money for the taxpayer and ensures that suppliers are not required to provide swathes of information that is irrelevant to the contract. This principle is also a feature of the UK’s international obligations, notably under the WTO government procurement agreement. It is for His Majesty’s Revenue and Customs to enforce the law on tax and, indeed, UK-based multinational enterprises are required to make an annual country-by-country report to HMRC. I note what was said by the noble Lord, Lord Hunt, about Amazon.

The grounds for exclusion in the Bill focus on criminal convictions and other serious misconduct that raises a risk to public contracts, including, importantly, in relation to tax. But investigation does not mean guilt in this country. Exclusion is not a substitute for a judicial process. It is important to let due process run its course before subjecting suppliers to mandatory exclusions.

However, we have broadened the scope of the current regime with the mandatory exclusion grounds related to tax in Schedule 6, which cover all tax evasion offences and involvement in abusive tax arrangements. This is a significant broadening from the current regime, which is limited to where there has been a breach of tax obligations and lets suppliers off where they have repaid or committed to repay unpaid tax. I am confident that these grounds are sufficient to protect contracting authorities and taxpayers.

[Lord Fox (LD)]

During that spirited defence of the need to keep things open for international companies to be able to bid, the Minister used the phrase “value for money”. Can she define the Government’s view of how they calculate value for money?

[Baroness Neville-Rolfe (Con)]

If I may, I will think about the answer, make some progress, and come back to that on a future occasion.

[Lord Fox (LD)]

It is surprising that the Minister cannot answer that.

[Baroness Neville-Rolfe (Con)]

Well, I think that “value for money” is a clear term, but I am listening seriously to the point that the noble Lord is making in this context. Value for money is about quality and quantity; indeed, it is about many things, as I know, having been on the buyer side in real life as well as on the selling side. As for what the definitions are in the Bill, I am not sure.

I come back to the important points from the noble Lord, Lord Hunt, on the subject of tax. It was clear from feedback on the Green Paper that the existing tax exclusion ground is one that many authorities are struggling to apply. By reframing the ground in terms of UK offences and regulatory decisions, we believe that it should be easier for UK contracting authorities to apply this. I also add—because I remember it well from the time that I served in David Cameron’s Government—that the UK has tried to lead the way internationally in making sure that multinational companies pay their share. Strong HMRC compliance action has secured and protected over £250 billion for public services since 2010 that would otherwise have gone unpaid, including £3 billion from those trying to hide money abroad. This is work that goes on—and work to which HMRC is devoted, as I remember well.

The noble Lord also raised tax havens. The Bill will deliver unprecedented levels of transparency in procurement, including—this point needs to be made—with respect to the beneficial ownership of suppliers. All suppliers will be expected to declare their beneficial owners when bidding for contracts. Failure to provide accurate details of beneficial ownership when asked will now be a mandatory ground for exclusion.

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[Baroness Neville-Rolfe (Con)]

I try to wake up early, as noble Lords know. Value for money is not defined in Clause 11(1)(a), to leave a degree of flexibility for future refinement. In practice, we will use the HMT definition, which is currently,

“the optimal whole-life blend of economy, efficiency and effectiveness that achieves the intended outcome of the business case.”

It is quite a nice mixture—economy, efficiency and effectiveness.

[Lord Fox (LD)]

I thank the Minister, but the question I was rather clumsily trying to ask was whether we extract from the cost the amount of money we expect to take in tax or merely use the cost as a flat sum. In other words, with a British company paying full British tax versus one of the companies described by the noble Lord, Lord Hunt, which pays no tax, does the overall cost of that service become less for the one paying tax? It seems the Minister’s answer is that the tax take is not included in the calculation of value for money.

[Baroness Neville-Rolfe (Con)]

I think we have made a bit of progress; I will not go down that rabbit hole or we will not make enough progress.

If I might, I turn to Amendments 306, 307, 308 and 320 tabled by the noble Lords, Lord Wallace, Lord Fox and Lord Hain. They would introduce new mandatory exclusion grounds in relation to offences of sanctions evasion, money laundering and failure to prevent bribery, and new discretionary exclusion grounds in relation to various financial and economic misconduct when the contracting authority has sufficient evidence in the absence of a conviction.

The mandatory grounds for exclusion cover the types of misconduct which raise only the most serious risks for contracting authorities. We have already strengthened the mandatory grounds significantly in comparison to the EU regime, but they cannot and should not cover every offence. On sanctions, the types of freezing orders referred to in the amendment are unlikely to be relevant to public contracts. On bribery and money laundering, we have included a range of mandatory exclusion grounds covering the most serious offences. This expands the scope of the offences covered in the EU regime to cover blackmail as well as bribery. However, I reassure noble Lords that the offences in question which are not listed as mandatory exclusion grounds are likely to be subject to discretionary exclusion, under the ground of professional misconduct. This will depend on the circumstances, but if the ground is met, contracting authorities could exclude the supplier.

As to the amendment to include financial and economic misconduct as a new discretionary exclusion ground, we have already explained to this Committee that the exclusion regime is not a substitute for a judicial process. I am not prepared to require contracting authorities to weigh up complex evidence of financial and economic misconduct in which they have no relevant experience. That is a key issue with the ambitious proposals described by the noble Lord, Lord Fox.

Amendments 323, 326 and 327, tabled by my noble friend Lady Noakes, concern the discretionary exclusion grounds for potential competition infringements and the test for when these apply. These exclusion grounds recognise that there may sometimes be evidence of competition infringements in the absence of a regulatory decision or ruling. It is critical that suppliers known to have been involved in collusion, bid-rigging and anti-competitive behaviour are held to account, given the fundamental importance of fair and open competition to procurement.

However, I reassure the Committee that these grounds should not be used to exclude suppliers merely because they are under investigation by the CMA or another regulator; there must be sufficient evidence that a breach of competition rules has occurred. I think my noble friend pointed out that the language used in the Explanatory Notes differs from that in the Bill. I am advised that this does not reflect a difference of policy or meaning. Authorities must “consider” that the conduct specified has occurred before determining that the exclusion ground applies. She went on to ask about why there were subjective tests in the discretionary grounds. I have to say that I had some difficulty in exactly following her logic in all this, and we may need to discuss these points further after Committee. The answer is because exclusion is a risk-based measure and a last resort, and suppliers are protected by a right to challenge the exclusion decisions because of the nature of those decisions.

[Baroness Neville-Rolfe (Con)]

I thank my noble friend for her further comments, which I will consider carefully. I myself feel strongly, as someone who has witnessed small construction companies being investigated by a competition authority that at the end of the day have been found completely innocent, that it would be difficult if they were not able to continue to engage in procurement during a long period of investigation. However, as she explained, we need to get right how we deal with the discretionary grounds and ensure that there is enough certainty so that authorities do not spend too much time going round in circles. We need to reflect further on the points that she has made. I think I slightly misunderstood the purport of her original amendment, so I look forward to discussing that with her. I thank the noble Lord, Lord Fox, for his intervention.

[Lord Fox (LD)]

I thank the Minister for her response. The notion of, in a sense, using professional misconduct as the catch-all for everything else is something that we could pursue after Committee. It may be something that requires some definition or clarification, either within the legislation or from the Dispatch Box on Report. If that is going to be the way that the Bill operates, some clearer idea as to how it would work would help to ameliorate some of the fears that have been expressed around the Bill.

[Baroness Neville-Rolfe (Con)]

We have to get the right result but we also have to avoid a chilling effect. That is my basic approach to this.

[Lord Fox (LD)]

A chilling effect on corruption?

[Baroness Neville-Rolfe (Con)]

A chilling effect on corruption is obviously positive but a chilling effect on people being prepared to engage in government procurement is not, particularly smaller suppliers, which might be put off by some of these rules. That is why we brought in Schedule 6, which will bring a certain clarity. There may be some further discussions to be had on Schedule 7 and exactly how it works.

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[Viscount Younger of Leckie (Con)]

My Lords, as I was saying, Amendments 223 to 227, 229 to 231 and 233 are tidying-up amendments. Amendments 223, 230 and 233 delete provisions that are now set out elsewhere. Amendment 224 clarifies that only contracting authorities may award public contracts using dynamic markets, while Amendment 225 reflects the terminology of “participation in”, rather than “membership of”, a dynamic market. Amendment 226 includes a new definition of “utilities dynamic market” to make it clear that this is a subcategory of dynamic markets rather than a distinct concept. Amendment 227 deletes the previous definition of a utilities dynamic market and deletes Clause 35(3), which will not be needed if proposed new Clause 1, which was discussed on the first day of Committee, is agreed on Report. Amendment 229 is a grammatical change, and Amendment 231 ensures that the definition of “utility” applies across the whole Bill, not just to this clause.

Amendment 234 includes proposed new subsections (1A), (1B) and (1C) in Clause 36, relating to conditions for membership of a dynamic market. These provisions apply the same restrictions to these conditions as apply to conditions of participation in a competitive tendering procedure, as set out in Clause 21.

Amendment 235 clarifies that the contracting authority that established a particular dynamic market, as opposed to any other contracting authority, must publish a notice when the dynamic market ceases or changes—for example, when new suppliers are added.

Amendment 288 allows for a minimum 10-day tendering period for the submission of tenders in competitive tendering procedures for the award of contracts under dynamic markets. This shorter period is a significant efficiency offered by dynamic markets. It compares to the usual tender return of 35 days, which applies in a normal procedure unless tender documents are provided at the outset and/or tenders are accepted electronically, both of which reduce the return by five days.

Amendment 345 extends the requirement on contracting authorities to notify the relevant appropriate authority where a supplier is excluded from a dynamic market because it has fallen foul of a mandatory or discretionary exclusion ground. Amendments 346 to 348 are consequential on this amendment.

In respect of the last two amendments, Amendment 541 corrects the clause reference in the list of defined terms to align with the amendments proposed to Clause 35, while Amendment 545 includes in this list a cross-reference to the newly defined term “utilities dynamic market”.

With that, I beg to move the first of these government amendments in the name of my noble friend Lady Neville-Rolfe.

[Lord Fox (LD)]

My Lords, as the noble Viscount set out so speedily, this new concept of dynamic markets is so new that a lot of it did not even make it into the original Bill; it had to be brought in as amendments. Thereby hangs a concern—not with the concept of a dynamic market, which I will come to shortly, but with how this is being put together, the sum of the parts and how it will work. It is difficult to see exactly how this will work in practice from the noble Viscount’s presentation that we just heard, the Bill itself and the original White Paper. That is my concern.

It would be helpful if the noble Viscount came back to us in writing with a simple message as to how this will work. How, for example, does it welcome innovation rather than shut it out? I will give an example. Whether a dynamic is based around process rather than outcome makes a difference, so how will these rules manage dynamic markets that actually deliver constant innovation? How will they be refreshed? How will the system work so that, rather than having the power of incumbency, if you like, which is often what happens with procurement, power will be pushed around to allow innovation, new entrants and new people to work within this dynamic?

We can call something dynamic but how is it dynamic on an ongoing basis if I use this market to buy things or services on a daily basis? Essentially, that is my concern: all these amendments are tinkering around technically with process but, because of the way this has been put together in pieces, will it actually work? Can the Minister come back with some assurance as to how this is supposed to work? How will it be constantly renewed? How will he ensure that it is open to new entrants throughout the life of that dynamic? How will individuals know that they are able to keep entering that market? Tenders will not be going out, so what is the process? If I have a small or medium-sized business, how do I find out about dynamic markets that might suit my product or service set? I am concerned about those kinds of mechanisms and processes.

[Lord Lansley (Con)]

I had not intended to intervene but I am getting a bit confused here. In the Public Contracts Regulations 2015, Regulation 34 describes a dynamic purchasing system. First, I am trying to understand the difference between the dynamic purchasing system that existed in the regulations we are replacing and this apparently entirely new dynamic market; I am not quite clear what it is. Secondly, the dynamic purchasing system in the regulations is an entirely electronic system. This one is not necessarily so.

[Lord Fox (LD)]

I think it is.

[Lord Lansley (Con)]

I hope it is but it does not say so, whereas the 2015 regulations make it clear that it is. I wonder whether this will be an entirely electronic system.

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The noble Lord, Lord Clement-Jones, talked about the issues around cloud hosting and the danger of uncontested contracts that do not seem to have thresholds, which are having a real impact on UK businesses. The Minister has talked very supportively of small and medium-sized enterprises; I know that she is a champion in this area. But UK businesses are being locked out of tendering for these contracts because of how the frameworks seem to be set up. I completely agree with and support the words of the noble Lord, Lord Clement-Jones, and, because of the Minister’s support for small businesses, I know that she will have listened very carefully. I hope that she can take a proper look at this before Report.

[Lord Fox (LD)]

My Lords, as we have heard, Clause 41 covers the very important issue of direct awards that may be awarded to protect life.

The Covid pandemic tested our current systems but, in one particular area, the Government have now admitted that they created a VIP lane, under which at least 50 contracts for test and trace were expedited. Many other contracts for PPE and other core Covid contracts also circumvented the usual public procurement routes in the VIP lane, as the noble Baronesses, Lady Bennett and Lady Hayman, mentioned. That is why my noble friends Lord Wallace and Lady Brinton have tabled Amendments 238 to 241. I have already explained that my noble friend Lord Wallace cannot be here, and my noble friend Lady Brinton is participating in the Chamber.

These amendments say that regardless of the emergency, the principles of transparency, integrity, fairness and non-discrimination must be at the heart of any contract process. These are the diagnostics of a good, well-managed company. If these are not pursued, it is very unlikely that quality and delivery will be good; and that is what we have found—delivery was poor. The VIP lane was a particularly egregious mechanism that the Government used to encourage contractors to come forward to supply goods at short notice, irrespective of those qualities that I have just listed. Billions of pounds of taxpayers’ money was used to provide contracts, including, as we have heard, to firms that had no experience of test and trace or the provision of PPE. This is not just a waste of money: one test and trace firm’s testing kits gave many thousands of erroneous false-negative results, which meant that people believed that they did not have Covid and went around the country infecting people accidentally, causing illness and possibly death. We do not know how many or how much.

PPE kit worth billions has already been and is being incinerated by the NHS, because it did not meet the required safety standards. It could not meet the quality standard, because it did not have the management controls and processes, nor the integrity, to meet it; it was not checked, because of the fast-track process. One common element is that it was parliamentarians—virtually all Conservatives—who introduced the companies that received this preferential treatment over and above existing, experienced suppliers and experts. There are many examples of this. Worse, the BMA reports that thousands of doctors ended up buying their own PPE, because they knew that the stuff that the Government were providing them with was substandard.

From our Front Benches and in private meetings with Ministers, despite repeated questioning, it was almost impossible to get answers about these appalling processes. Two years later, the truth is really beginning to emerge. Friends of Conservative parliamentarians were given unfair advantage in obtaining contracts, as we just heard from the noble Baroness, Lady Hayman. That is bad enough, but the waste from those contracts is a stain on this Government’s procurement activities. It must never happen again.

Amendment 240 makes it plain that provision must not confer any preferential treatment on suppliers connected to or recommended by Members of the House of Commons or House of Lords. If the Minister resists this amendment, these Benches will also oppose that Clause 41 stands part of the Bill. As currently written, it does not prevent the procurement processes from this debacle happening again.

Can the Minister answer the following questions? Does she believe that Clause 41, in its current form, protects against abuse of a future emergency process similar to the VIP lane that this Government used, which has proven to be untransparent and to favour colleagues of parliamentarians? In other words, does Clause 41 stop this happening again? Does she recognise that now is the time to say that this must never happen again? And does she recognise that these amendments are a mechanism to ensure that we do not get a repeat of this?

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Given these restrictions around use of the power, we do not believe that further measures are necessary. I would point out that the Clause 41 power did not appear in the DPRRC report, which we hope reflects the fact that sufficient protections are already in place.

[Lord Fox (LD)]

My Lords, before the Minister finishes, I have two points. On the big question, I asked whether she thought that Clause 41 would prevent the VIP lane problems resurfacing or coming back. It would be good to get an answer to that, either now or later. In the Minister’s response on Amendment 239, I thought I heard her say that provisions in other parts of the Bill around operating ethically are, in spirit, reflected in Clause 41. “In spirit” is a very difficult concept to understand in law. I hope we can find a way of perhaps stiffening the spirit and making it actual. If there is a read-across, we need to find a way—either at the Dispatch Box, in some Pepper v Hart way, or within the words—to ensure that what the Minister says, which I take to be in good faith, is usable in the outside world once the Bill becomes an Act.

[Baroness Hayman of Ullock (Lab)]

Perhaps I might add that what the Minister said makes a lot of sense and is helpful, but one of the problems we have is that we do not know how effective it is going to be and whether it would work until we get into that situation again. Is there any ability to build in a review once the system has been tested, perhaps against a major public problem like we had with Covid-19?

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[Baroness Noakes (Con)]

My Lords, I have several amendments in this group. The first is Amendment 264, a probing amendment to find out why standstill periods, which are generally required by Clause 49, are not required for light-touch contracts or those awarded in dynamic markets. My amendment would achieve this by deleting paragraphs (d) and (e) from Clause 49(3).

As my noble friend just explained, the standstill period is a short pause after the publication of the contract award notice in order to allow an agreed bidder the opportunity to complain about a contract before the contract is finalised. This is a sensible part of the framework because challenging a contract after it has commenced is much less effective and is best avoided. The purpose of my amendment is to ask my noble friend to say what public policy grounds would deprive unsuccessful bidders of the opportunity to challenge contract awards under the light-touch or dynamic market regimes. What specifically are the features of those regimes that are suitable to override the rights of unsuccessful bidders, compared with other contracts?

My next amendments, Amendments 477 to 480, would have the effect of ensuring that procurement oversight extends to all procurement covered by the Bill. Clause 96 allows for investigations into compliance with the Bill, but excludes government departments, Welsh Ministers, Northern Ireland departments and utilities from its scope. My simple question to my noble friend is: why? She cannot possibly tell me that these contracting authorities are such paragons of virtue when it comes to procurement that they would always comply with the Bill. Government departments do not have a perfect track record on procurement and, in my view, ought to be capable of being investigated.

My final amendment in this group, Amendment 482, concerns the recommendations that can be made following a Clause 96 investigation. Clause 97(3) says that these recommendations “must not relate to” how to comply with the procurement objectives set out in Clause 11; must not recommend how the contracting authority should have regard to the Section 12 national procurement policy statement; and must not say how the authority should

“exercise a discretion in relation to a particular procurement.”

I can just about understand the last one, because recommendations should not interfere with

“discretion in relation to a particular procurement”,

but I do not understand why recommendations have to steer clear of procurement objectives or the NPPS. What is the point of making recommendations if the heart of the procurement rules, to be found in Clauses 11 and 12, are off limits? For example, is value for money off limits in an investigation because it is an objective within Clause 11? I cannot understand why that should be excluded. My amendment is to delete subsection (3) on a probing basis, to give my noble friend the opportunity to explain what all this is about.

[Lord Fox (LD)]

My Lords, I speak in place of my noble friend Lord Wallace on Amendments 349A, 349B and 353A, all of which refer to and reflect on the procurement review unit. On page 13 of Transforming Public Procurement: Government Response to Consultation, at points 46 to 49, the Government say:

“We have revised the proposals for this new unit. It will be known as the Procurement Review Unit (PRU), sitting within the Cabinet Office and will be made up of a small team of civil servants.”


They go on to detail quite fully what the PRU is—I will come back to its role and autonomy in a minute—but where is it in the Bill? Amendment 349A seeks to replace “An appropriate authority” with the promised “Procurement Review Unit”. Amendment 349B would give a role for the procurement review unit to advise. More specifically, in Amendment 353A we seek the insertion of the nature of the procurement review unit.

All these amendments are trying to probe where the Government got to between the consultation and the drafting of this legislation, and why in effect there is no PRU in the Bill. What happened to it and who has got it? When the Minister no doubt notices and reinserts it on our behalf, what will its role and its level of autonomy be? How many teeth are the Government prepared to give this PRU, and will it essentially have those teeth drawn? Essentially, where is it?

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[Baroness Neville-Rolfe (Con)]

I thank noble Lords for an interesting debate on these non-government amendments. I do not think that I have a perfect reply to my noble friend Lady Noakes’s three questions. We are due to meet to discuss various aspects of the Bill and I would like to explore her questions further, and then perhaps I can write to the Committee when it is clear to me what the right replies to those questions are.

I will attempt to comment on the amendment that the noble Lord, Lord Coaker, has just talked about, on why government departments do not have the same obligation to have regard to recommendations under Clause 97. It is a simple question, and our response is that it is not necessary to include government departments in Clause 96 and 97, because the appropriate authorities have sufficient influence over contracting authorities to ensure that any recommendations that result from an investigation are duly taken into consideration. To confirm, investigations, findings and progress reports may be published by the relevant authority acting as a further incentive. It is simply unnecessary to provide statutory powers in respect of government departments, whereas due to the different relationship with non-central contracting authorities, statutory powers were required to ensure appropriate engagements for these purposes. As noble Lords will know, we have quite a well-developed procurement operation now, right at the heart of Government, sitting in the Cabinet Office, which I think is an improvement. That is why it is not provided for in the Bill.

Just before I leave voluntary standstills, let me say that I will make sure we come back properly on the exchange we had earlier. We want to maintain voluntary standstills for dynamic markets—they are intended to be quick to use, agile and efficient, as we heard from my noble friend Lord Lansley—and for light-touch contracts, which are often for time-sensitive services such as the provision of health and social care. We do not want to make the light-touch contract rules stricter in this regard than current legislation, as we think that could lead to some problems.

Amendments 349A, 349B and 353A were tabled by the noble Lord, Lord Wallace of Saltaire, and others. They seek to legislate for the procurement review unit with a new clause. The procurement review unit, which is very important, is not specifically referenced in the Bill as it will be exercising statutory and non-statutory powers on behalf of Ministers. The proposed new clauses would therefore conflict with existing provisions. Furthermore, considering the importance and potential implications of the decisions the PRU will support the Minister of the day in making—the proper statutory process—we believe it would be inappropriate to delegate that ultimate responsibility to unelected officials below ministerial level.

The PRU will work on behalf of the Minister of the day in two key areas. The first area is debarments. Clauses 56 to 61 set out the process for the establishment of a debarment list of excluded and excludable suppliers; this has already been debated. Under these clauses, it is envisaged that the PRU will investigate whether a supplier is subject to an exclusion ground and whether the issues in question are likely to arise again. The PRU will issue advice to the relevant Minister, usually the Minister for the Cabinet Office, who will take the final decision whether to add the supplier to the debarment list.

The second area is improving compliance with the Bill. Clauses 96 to 98 provide the framework and statutory powers required for carrying out procurement oversight. The PRU will exercise these oversight functions on behalf of the Minister and make proposals regarding any investigations, recommendations and statutory guidance it considers appropriate for the Minister’s ultimate approval.

[Lord Fox (LD)]

My Lords—

[Baroness Neville-Rolfe (Con)]

I will have a little more to say about this later on, so why not let me finish? If I do not answer the noble Lord’s questions, we will try to get at what is needed.

Amendments 477 to 480 seek to examine why government departments have been excluded from the appropriate authority’s investigatory powers. The definition of “relevant contracting authority” in Clause 96 is in recognition of existing governance. Ministers already have the authority to investigate government departments without the need for statutory powers; I think I have said that already. There are also established routes for co-operation with investigations.

Amendment 477A was tabled by the noble Baronesses, Lady Thornton—it is good to see her in the Committee—Lady Hayman of Ullock and Lady Bennett of Manor Castle, and the noble Earl, Lord Devon. Amendment 482 was tabled by the noble Baroness, Lady Noakes. These amendments would expand the scope of the statutory oversight powers beyond compliance with the Bill, straying into areas of policy. The scope of the statutory powers provided by these clauses has been carefully drafted to maintain the boundary between law, which must be adhered to, and policy, where some leeway is allowed in terms of its implementation.

Expanding Clause 96 and/or the Section 97 recommendations to include social value, as well as considering how contracting authorities have chosen to meet obligations to have regard to policy and principles, would blur that boundary and start to erode the autonomy of contracting authorities, which we recognise are best placed to make policy implementation decisions that are appropriate for their business. It would also move the statutory regime away from objective and measurable concerns into more subjective areas of debate, which could impact the effectiveness of the oversight system. We believe that the scope of Clauses 96 to 98 creates a proportionate, effective and compelling incentive for improvement. It is worth noting, however, that the drafting of Clauses 96 and 97 does not prevent the Minister from making observations regarding a contracting authority’s policy implementation. Policy guidance can indeed continue to be provided to contracting authorities.

Non-statutory procurement policy notes, which we have discussed before, are currently released to guide contracting authorities. In the new regime, under Clause 98, statutory guidance, which may be published as a result of investigations, can also address matters of policy. Contracting authorities will be required to have regard to any guidance released under Clause 98; I think this helps to deal with the social value issue. The removal of Clause 97(3) would result in the appropriate authority having the power to intervene in specific procurements.

The restriction in Clause 97(3)(c) ensures probity of the procurement by, for example, preventing a Minister of the Crown from using Section 97 to exert influence over which supplier is awarded the contract. That is an important point. To remove this restriction would be concerning to contracting authorities and suppliers alike.

Finally in this group, the noble Baronesses, Lady Thornton and Lady Hayman, and the noble Lord, Lord Coaker, tabled Amendment 486A. This seeks to stipulate that the expertise of SMEs, voluntary organisations and social enterprises is accessible to an appropriate authority that is conducting investigations under Clause 96. The PRU will be managed and delivered by a small, experienced team of civil servants based in the Cabinet Office, supported by a panel of experts, which can be consulted regarding investigations and any resultant Section 97 recommendations and guidance under Section 98. The Cabinet Office aspires to provide perspectives from procurement experts from across the Civil Service, local authorities and various types of private organisations, including SMEs and VCSEs, to benefit the oversight regime.

However, it should be recognised that having a panel which includes external procurement professionals is dependent on the availability of suitably qualified individuals and the ability to manage any potential conflicts of interest. I am therefore unwilling to make a legislative commitment of the kind proposed. However, the establishment of the panel will be transparent, and appropriate documentation will be published in due course, including on the process for appointing members. It seems to me that this is an important error, which is why I make that point.

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[Lord Fox (LD)]

Following on from that, if the Secretary of State can give and the Secretary of State can take away, and we have no sense that this panel will endure past the next government reshuffle—which could be any time now—without having it in either primary or secondary legislation, what status does this have at all other than the good will of the then Secretary of State?

I refer again to the Government’s response to the consultation: the role of the PRU was very specific. It was aimed to deliver the same service as the public procurement review service—and perhaps the Minister could tell us whether that is being disbanded and folded into the PRU; will it still exist or what? The response stated that

“the PRU’s main focus will be on addressing systemic or institutional breaches of the procurement regulations”.

The Minister has narrowed that down to debarments and compliance. It seems there really has been a declawing and a removing of this body from any statutory basis. As my noble friend points out, it is not very clear which the appropriate authority would be in those circumstances.

[Baroness Thornton (Lab)]

I might as well intervene now too, because the question I would really like to ask the Minister—and it is very nice to see her back in her place, as she was the Minister responsible for putting equal pay on the statute book, and I hope her progressive instincts there might be followed through in this piece of legislation—is about social value. How do we deliver social value if there is absolutely no way of examining it, monitoring it and enforcing where it is not being delivered?

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[Baroness Neville-Rolfe (Con)]

We have put together this whole new system of procurement, which includes various checks and balances. Panel members will be available for the procurement review unit to help regarding investigations and the unit’s work. Their reports and recommendations will help with moving forward on procurement and the complexities of this change of the law. Their advice can be published, and we will be able to reference the assistance that the panel has provided. That is the approach that we are proposing following a process of consultation. The PRU is central. I am sure we will revert to this issue.

[Lord Fox (LD)]

The Minister will have got the message that there is deep disquiet about how this will be structured and will operate. If the Minister has time, can she reflect on Hansard and write a letter before Report setting out how this unit will be set up and what its roles, on a statutory or non-statutory basis, will be? That would be very helpful.

[Baroness Neville-Rolfe (Con)]

Of course, I will write setting out how this will work. I ask the Committee to look at it constructively in the light of what we are trying to achieve across a very wide area of procurement. I go back to where we started in Committee, as this is probably the final amendment this evening, and say that there is also a process of cultural change, training and so on that will be going on, which is an important complement to the investigatory powers that we are looking at in this amendment.

I respectfully ask noble Lords not to move their amendments.