My Lords, I declare my interests as set out in the register. I am introducing Amendments 310, 318 and 322. I am grateful for the support of the noble Baroness, Lady Young of Old Scone.
My amendments follow on a lot from things that have already been mentioned. They are designed to remedy what appears to be a significant inequity in the treatment of environmental offences relative to other offences listed in Schedules 6 and 7, which relate to mandatory and discretionary exclusion grounds. In Schedule 6, there is no mention of mandatory exclusions for environmental offences. Apparently, no environmental offence, however serious or wide-reaching in its impact on people’s health or finances or the wider environment, currently merits mandatory exclusion. In contrast, almost any offence in relation to employment agency law, common law or tax, however minor, triggers mandatory exclusion.
In Schedule 7 there are grounds for discretionary exclusion on environmental misconduct, but let us work through the terms of that exclusion. First, the authority is required to ignore any event predating the coming into force of the schedule. The noble Baroness, Lady Noakes, has tabled an amendment to query that proposal, and I will be interested in the Minister’s response to her. I also note that the reference to an event rather than an offence seems to leave the contracting authority in doubt about whether they must exclude convictions for environmental offences after the date of coming into force where the conduct took place.
Secondly, the contracting authority has to decide whether the conduct caused or had the potential to cause significant harm to the environment. I would be very interested to hear about the breaches which are serious enough to result in convictions for offences—not, as I understand it, simple enforcement notices or civil penalties but actual offences—but do not even have the potential to cause significant harm to the environment. Still, the legislation erects an additional hurdle for contracting authorities with absolutely no clarity about what an insignificant offence looks like or why it is an offence if it is insignificant.
Thirdly, the contracting authority must consider whether the circumstances giving rise to the application of the exclusion are likely to recur. I do not believe that this is the Government’s intention, but if we wanted a regime which gave a surface-level semblance of treating environmental offences seriously in public procurement while making contracting authorities extremely reluctant in practice ever to exclude any supplier on environmental grounds, we have done it really well. However, I believe that that is not the Government’s intention, so I have tabled this amendment to achieve what I believe is needed and meant.
Amendment 310 makes an offence under any provision of environmental law subject to mandatory rather than discretionary exclusion. There is no judgment to be made about the potential for causing significant harm where there has been an environmental offence. An additional effect of this drafting is that the contracting authority would be required to disregard only offences that took place longer ago than the default position—set out in paragraph 42 of Schedule 6—of five years.
Amendment 318 provides a definition of environmental law, which is currently missing from the Bill. It is taken from last year’s Environment Act, Amendment 322 removes the existing discretionary exclusions in Schedule 7, as previously described. This is a modest proposal. It would mean that contracting authorities would receive clarity that convictions for offences against a defined range of environmental law in the past five years would always be grounds for mandatory exclusion. However, contractors would not necessarily be excluded out of hand. Contracting authorities would still have to give consideration to the likelihood of the circumstances occurring again or, if the amendments in the names of the noble Lords, Lord Wallace and Lord Fox, are accepted, the contractor would need to demonstrate this to everyone’s satisfaction.
Neither do the amendments I am speaking to create new burdens on contracting authorities; they merely replace an unclear discretionary exclusion with a clearer one. Authorities which intended never to give a moment’s consideration to contractors’ environmental records—which is what happens now—or to the possibility of excluding firms in any circumstances would now need to do a small amount of work in identifying whether convictions had taken place. I assume that the noble Lord, Lord True, would welcome that increased diligence and consideration. However, contracting authorities which did take their responsibilities seriously would now not need to worry about venturing out on an unguided journey into deciding whether a breach was significant. This seems far closer to the vision of procurement set out in the procurement Green Paper, which referred to the environment as one of the Government’s strategic policy priorities and specifically referenced a supplier’s plans for achieving environmental targets across its operations as an example that the switch to considering bids on the basis of most advantageous tender would deliver. It is also closer to the Bill’s Explanatory Notes, which refer to simplifying the procurement process and making it more transparent. Finally, it is closer to the vision that the noble Lord, Lord True, set out at Second Reading, which was quicker and simpler and better meets the needs of the UK.
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