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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In addition, many of the specific requirements outside Clause 11—to which my noble friend wished to limit it—are required to implement our international trade obligations, such as the need to publish a tender notice and a contract award notice, which are requirements under the WTO’s GPA. That agreement also requires that we have a domestic review mechanism that can address failures to do so. If we do not undertake these things, we also risk adversely impacting supplier confidence and engagement, absent appropriate remedies for breaches beyond Clause 11.
However, I do understand the points put forward about flexibility and I listened very carefully, as I always do, to the noble and learned Lord, Lord Hope of Craighead—it did not seem that way when we had an earlier session in Committee and were talking about another aspect of the Bill, but I always listen extremely carefully to the noble and learned Lord. We will reflect on these matters. Our position is that we think, for the reasons I have explained, that the reference needs to be to the “Act” rather than just “section”, as it ensures that objectives such as those in Clause 11, and indeed elsewhere, are included. We will reflect and read the various contributions carefully in Hansard, particularly the advice given by the noble and learned Lord, and we will undertake to engage on these matters between now and Report.
Another important thread of the debate was in relation to the Green Paper. This was reflected in Amendment 43, tabled by the noble Baronesses, Lady Hayman and Lady Bennett. As I have said before in this Committee, a Green Paper is a Green Paper. The noble Lord, Lord Wallace of Saltaire, always waxes lyrical on the absence of something in the Green Paper, but a Green Paper is part of the process of reflection and consideration of an area of legislation. I do not think that there has ever been any constitutional principle that what is in a Green Paper must form the text of a piece of legislation—nor have any Governments adhered to that.
I recognise, as argued by the noble Lords who have spoken, that the six principles in Amendment 43 are the same as the principles set out in the Green Paper. However the Government have refined these principles following the response to the Green Paper to help contracting authorities understand what they are obliged to do. An obligation to pursue all these principles at all times risks creating conflicts in the obligations imposed on contracting authorities. However, I can
assure the noble Baroness, Lady Hayman, that the Government have considered each of these matters carefully and have, we believe, included each in the Bill in a proportionate way.
The principle of transparency is reflected in both the information-sharing objective in Clause 11(1)(c) and in procedural obligations at each stage of the procurement process. “Public good” is in the Bill as “public benefit”. “Value for money” is unchanged, though I understand that there are questions about the definition, which we will no doubt pursue further in Committee. “Integrity” is unchanged. The principle of fair treatment can be found in specific rules on the “same treatment” of suppliers, in Clause 11(2) and (3). As with transparency, we feel that specific legal obligations are more appropriate here than a simple principle to be followed. The principle of non-discrimination can be found in specific rules on national treatment in Clauses 81 to 83. The Bill therefore deals with procurement principles in what we submit is a more effective manner than the broad-based principles in the amendment would allow. However, I have no doubt that we will hear more on this as we come to later clauses in Committee.
I turn to Amendments 44 and 350, tabled by the noble Lords, Lord Wallace of Saltaire and Lord Fox. By the way, the noble Lord, Lord Wallace of Saltaire, rather ingenuously asked which Cabinet-level Minister is in charge of this legislation. The Minister concerned is Mr Jacob Rees-Mogg; he was in charge before and is in charge now. So I think we can dispense with that consideration.
The amendments propose new procurement purposes related to social value in the local area and local economic growth. They require post-completion evaluations against these purposes and create a mechanism for inclusion on the debarment list if they have not been met. Social value and local economic growth are important considerations in the context of procurement. Contracts below thresholds can currently be reserved for local businesses, local charities and voluntary organisations, where it is good value for money to do so. On that I agree with noble Lords opposite that we are perhaps not explicit enough sometimes about the important regard we have for the immense social contribution of the activities of these smaller bodies. Delivering value for money for taxpayers should, however, always be the key driver behind any decision to award contracts to suppliers using public money.
The “public benefit” objective in Clause 11 requires buyers to think about the extent to which public money spent on their contracts can deliver greater benefit than it otherwise would, so the Bill already contains provisions on considering greater social value and economic growth. This is not the same, though, as making social value and local economic growth part of the purpose of the procurement.
In addition, such an approach could draw us into conflict with the UK’s obligations under its international trade agreements: for example, each of the trade agreements listed in Schedule 9 to the Procurement Bill requires that, for the procurements covered by the agreement, the UK treats the relevant overseas suppliers no less favourably than UK suppliers.