My Lords, it is always a great pleasure to follow the noble and learned Lord, Lord Hope of Craighead, who is always so brief and makes such constructive suggestions. 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.
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I also rise to support my noble friend Lord Moylan. He prefers a more flexible, more principled approach. I think he also, rightly, is trying to reduce the frequent legal challenges seen in procurement—which I know very well from my own varied career—by disappointed bidders. I agree with the noble Baroness, Lady Bennett, that it is a great pity the Australian deal is being debated in the Chamber at the same time as this Bill, because there are a lot of people with practical knowledge in this debate who cannot contribute. However, I do not agree with her about adding the sustainable development goals. That could encourage yet further challenge to this Procurement Bill because once it goes through the various people engaged in procurement will again think of ways to challenge contract decisions. There is a balance to be achieved in this Bill.
We all want good, transparent rules on procurement, but the Bill is something of a monster. It is wide-ranging and full of significant delegated powers, some of them of the Henry VIII variety as we know because of the amendment put down last week by the noble Lord, Lord Wallace of Saltaire. We need the Bill to focus on essentials and try to cut down the red tape. Schedules 6 and 7 are very well-meaning but very burdensome in practice and costly in terms of resources to both the
public and private sectors. That will mean that the £300 billion of expenditure on procurement is spent less effectively and is not the driver of productivity improvement which I had hoped for.
I fear we are going to continue to lag behind France and the United States on productivity unless we use opportunities like this to get things simpler and better. With so many new and continuing rules and regulations, I worry that the more dynamic part of our economy will go elsewhere, leaving procurement to a much smaller pool. Inevitably, this will push up the cost and discourage the competition that the Government wish to inject.
In reappraising where we are with this Bill, I want to emphasise that it is a Lords starter, so it is possible to make changes; sometimes we get Bills and we are asked to make no substantive amendments. I hope that economists and small businesses will be consulted, not just those with an interest in complex procedures and procurement or in social value, which obviously is well-represented here.
I fear there is too much emphasis on regulation in this Bill, allegedly to create public benefit, which we all want. However, if you look at Clause 11(1)(b), I fear it could have perverse effects. I am also worried about Clause 11(1)(d)
“acting, and being seen to act, with integrity”.
How do we—let alone business, or the courts on appeal, for example—define “being seen to act”? It is highly subjective. For me, what matters is integrity and not appearances. It is the integrity that matters, so I do not quite understand that provision. I cannot believe parliamentary counsel has agreed to it. It will certainly put off small business from engaging in procurement and others who are not PR and media led. I ask the Minister: is this integrity provision and “being seen to act” precedented in legislation elsewhere, or is it a dangerous novelty that we could come to regret? We have a duty to try to get this legislation right for many years to come.
This issue raises a wider question of what, in this provision and elsewhere in the Bill, replicates what is in EU law and what is additional. It is a theme I am going to come back to again and again. I ask the Minister if, during the recess, government could provide a full side-by-side of the provisions in the Bill and what they replace from the EU. Then we can satisfy ourselves that the Bill does not go too far and consider what might be left out if it is inappropriate or overzealous.
Other amendments in this group seem in several cases to go further down that road, so I am glad to see the various government provisions probed. It is good that we are probing this issue in Committee today, but I fear that some of the amendments could cause problems. The noble Baroness, Lady Hayman, wants to add extra principles. I am not convinced that we should do so because I fear that it would open up lots of further opportunity for legal challenge, and that those extra costs—think about legal challenge in other parts of the public sector—would further reduce value for money for this important part of the economy. Indeed, I fear that the legal duty proposed by the noble Lord, Lord Clement-Jones, could create a similar field day for the lawyers. I am keen to be persuaded that I am wrong. I very much agree with the noble
Baroness, Lady Hayman, on the importance of small business and charities, which we are going to discuss in the next group.
We have discovered in this Committee that there is an effective international framework through the GPA, so I encourage the Minister to go away and consider whether we can slim down the Bill, which I think is the logic of my noble friend Lord Moylan’s creative amendment. In any event, perhaps I can say that I would find it useful if we could see what is old, what comes from EU law, what is new and why. I am open to persuasion that all is well, but I have my concerns, which I have articulated today.