Amendment to the Motion on Amendment 1

Procurement Bill [HL] - Commons Amendments – in the House of Lords at 5:29 pm on 11 September 2023.

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Baroness Brinton:

Moved by Baroness Brinton

Leave out “agree” and insert “disagree”.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat

My Lords, I start by thanking the Minister for our meeting last week. I have listened carefully to what she has said today and during that meeting; I am afraid that she has not convinced me that the procurement rules for the NHS would be as strong, clear, transparent and accountable as we find in this Procurement Bill. My Amendments 1A and 81A would ensure that the NHS is included.

During the passage of the Health and Care Act 2022, the very short Clauses 79 and 80 gave the NHS exemption from this Bill, with procurement rules to be introduced in secondary legislation by the Health Secretary. Seventeen months on, this still has not happened. When she spoke just now, the Minister relied on government Amendment 82. However, in the consultation—it is, I believe, still open—the NHS provider selection scheme that she referred to sets out some general principles only. During an earlier stage of this Bill, in response to my earlier amendments, the noble Lord, Lord True, referred to clinical contracts being exempt. However, that is not so; in fact, I note that, today, the Minister has been referring to healthcare. Every single time I ask a Minister a question, the definition changes.

In the NHS provider selection scheme, the flexibility rests with NHS bodies to make their own decisions about which scheme they use. The consultation document says:

“This is intended to remove unnecessary levels of competitive tendering … the Provider Selection Regime is intended to make it straightforward to continue with existing arrangements for service provision where those arrangements are working well and there is no value for the patients, taxpayers, and population in seeking an alternative provider”.

Those phrases—“remove unnecessary levels of competitive tendering”, “working well” and “no value in seeking an alternative provider”—are worrying, frankly. The problem, as we have discussed at length in our debates on this Bill, is that poor practice creeps into a culture where people believe that things are working well. The rules that this Bill sets out are there to ensure that every public body putting out a tender has carefully thought through what is appropriate, not just working well.

There is evidence that the current practice in NHS procurement has a mixed record, whether at the highest level or right down at the level of local trusts and CCGs, which is often covered by the specialist press. Despite a blunt National Audit Office report in 2011 on value for money in NHS procurement, the experience during the pandemic showed that some of the deep-seated culture of things not being value for money and not being completely open and transparent continues. The NAO has commented on this and the NHS recognised it in its response paper, Raising Our Game, in which it said:

“Recent reports suggest NHS procurement is lagging behind industry procurement performance”.

Unlike Ministers, the Civil Service and staff at many other public bodies, who are constrained by conflict of interest rules, it is possible for NHS staff, including directors, to use a revolving door to move from the NHS and join a company that contracts with the NHS without a gap. Last year, a deputy director and the head of AI at NHS Digital both left and immediately joined the technology firm Palantir just as it was bidding for further contracts, some without open tendering; Palantir is known to be bidding currently for the federated digital platform contract, which is worth an estimated £360 million and is due to be awarded imminently. Only 10 days ago, the chief operating officer of the NHS left on a Friday and joined Doccla, the virtual ward company that is bidding for substantial NHS contracts, the following Monday. It was also reported in July this year that NHS Digital had spent £7 million on “irregular” payments to external contractors while, last year, the Treasury flagged “irregular” spending by the Department of Health and Social Care and the NHS worth £1.3 billion. Let me say that again: £1.3 billion. Last year, the Technology and Construction Court found that staff from three CCGs in the south-west had manipulated a £2 million contract knowing it to be improper.

Many of these incidents are not reported widely. I thank in particular the Health Service Journal and other technology and health reporters for shining a light on this poor practice, even if it is not regular, wherever it has happened. This is not about those individuals nor the contracting companies. It is about the culture of procurement in the NHS. My amendment would ensure that by including the NHS in this Procurement Bill it would share robust regulations with other bodies and would be accountable and transparent even if there is a need for some subsequent special arrangements for complex clinical contracts. Not doing this will not change the culture of NHS procurement but including it in this Bill will. I beg to move.

Photo of Baroness Hayman of Ullock Baroness Hayman of Ullock Opposition Whip (Lords), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Levelling Up, Housing, Communities and Local Government) 5:45, 11 September 2023

My Lords, Amendment 4A in this group is in my name. My amendment in lieu would insert a number of priorities and principles into the Bill. I will be fairly brief because we discussed these issues at length both in Committee and on Report but we felt that they were important enough—and were considered important enough by noble Lords during those debates—to bring the amendment back once again.

My amendment asks that due regard be given to a number of priorities and principles. The first is “maximising public benefit”. Public benefit is mentioned in the Bill but we feel that it is too vague, which is why we want to pin it down more within another amendment. Maximising public benefit would include

“the achievement of social value, through the securing of environmental objectives”; many noble Lords were concerned at the lack of environmental objectives in the Bill. It would also include

“promoting innovation amongst potential suppliers”.

We also think that it is important to have

“value for money, by having regard to the optimal whole-life blend of economy, efficiency and effectiveness that achieves the intended outcome of the business case”.

In our previous debates, the Minister spoke strongly about the importance of value for money, so I hope that she understands why the second part of our amendment is clearly important and would strengthen the Bill.

The next part of my amendment deals with transparency. We think that it is important that we act

“openly to underpin accountability for public money”,

tackle corruption and ensure that all procurement is fully effective in achieving this. We also think that good management should be in place in order to have proper integrity, prevent misconduct and exercise

“control in order to prevent fraud and corruption”.

Importantly, we have added in “fair treatment of suppliers”. I thank the Minister for her work on improving the Bill for small and medium-sized enterprises, but we feel that more could be done to ensure that

“decision-making is impartial and without conflict of interest”.

The final part of my amendment concerns non-discrimination—that is,

“ensuring that decision-making is not discriminatory”.

The reason why we have had such a debate about this matter is that the principles were originally in the Government’s Green Paper and were consulted on. Our concern is that those principles were then left out of the Bill even though the objectives were included. So, my amendment would bring those principles back into the Bill.

We believe that social and public value are important requirements for any contracting authority to consider in order, for example, to encourage anyone contracting to work with local suppliers; to encourage contractors to reduce their CO2 emissions; to encourage the hiring of more apprentices; and to encourage greater diversity. We believe that, if the Government are to deliver their ambitions of levelling up and net zero, it will be important to include these principles in the Bill. We know that social value is included in the national procurement policy statement—the Minister made much of the NPPS in our previous debates—but it is not referred to in the Bill. We also know that public benefit is mentioned in the Bill, but it is not clear to us how social value would sit within that framework. How will it all come together to ensure that it works for the public benefit? We know that the NPPS will include the Government’s strategic priorities but, again, we do not know clearly what those are. Further, the Bill does not mention innovation, which is why it is an important part of my amendment. As the noble Lord, Lord Lansley, said when we previously debated the Bill:

“When our current Prime Minister was Chancellor of the Exchequer, he put innovation at the forefront of his economic approach to improving productivity”.—[Official Report, 28/11/22; col. 1619.]

So why not include it in this Procurement Bill?

As the Minister said in her previous response to similar amendments, innovation and competition have an important part to play here. Procurement should be an enabler of innovation. It is important that there is clarity around these principles and objectives. How will innovation be part of it, for example? The Bill will shortly become legislation. We must revisit these concerns and we want to persuade the Minister to consider very carefully what we have been saying and why we are saying it. From her responses, we do not believe that at previous stages there was adequate explanation of how all this would operate. Good sentiment from the Government and the Minister, and promises around an NPPS we have not seen, are not sufficient to ensure that we have the best procurement legislation possible, which we all want to see. Our amendments would help achieve that end.

Sadly, the Minister has again disappointed me with her introduction on these issues, although I thank her for all the work she has done as we have progressed so far. It is my intention to move my amendment.

Photo of Lord Lansley Lord Lansley Conservative

My Lords, I will contribute on Amendments 4A and 4B in particular. As noble Lords will recall, the structure of Amendment 4A, as an amendment in lieu of the Commons Amendment 4, incorporates to an extent some of the issues raised in the strategic priorities that your Lordships sent to the Commons to be included in the national procurement policy statement. I will explain how that works in a minute.

Like other noble Lords, I am grateful for the time and effort that my noble friend the Minister has given to listening to what we had to say. On Commons Amendment 5—which would get rid of the reference to “strategic priorities”—I was focused on innovation, as she knows. Innovation is essential to the quality and effectiveness of procurement. Also, public procurement is a substantial part of this country’s economic activity. If it promotes innovation, it can make a significant difference to our overall economic performance and to reconciling our productivity problems. The fact that, in the absence of Amendment 4, the Bill would make no reference to innovation is such an omission that, on those grounds alone, Amendment 4A should be added back to the Bill.

When we tabled our amendment, the noble Earl, Lord Devon, the noble Baroness, Lady Worthington, and I tried to ensure that the national procurement policy statement was clear about what we regarded as enduring strategic priorities. We have backed off from that. My noble friend and the Minister in the other place were clearly told that we must have maximum flexibility. I still do not understand why the Russian invasion of Ukraine might mean that public procurement in the United Kingdom should not have regard to social value; none the less, leaving that to one side for a moment, I accept that there is an ideological commitment in government to the idea that everything that government does must be so flexible that you cannot even predict some of the basic principles within it.

We have dropped the strategic priorities; we have made them principles. As the noble Baroness, Lady Hayman, rightly has it, we have moved from “must include” to “have regard to”. Therefore, Ministers are not constrained to include in the statement innovation, the achievement of social value, the achievement of environmental objectives or, for that matter, transparency, integrity, fair treatment, non-discrimination and value for money. However, the idea that any of these things would be left out of a national procurement policy statement is wholly unacceptable.

I come back to the essential question: what are we trying to do? We are trying to set the framework for contracting authorities to undertake public procurement. From our point of view, the statement should include whatever the Government think it should include but it should not exclude such basic central principles of public procurement. We have only to ask ourselves what conclusion we would draw if the Government were to send a draft of an NPPS to Parliament which left these things out. In my view, we would have to reject it. What is the benefit of that? Better to put it in the Bill now, make it clear to Ministers and, frankly, officials, that it should be in the statement so that, when the draft of the NPPS comes, we can tick the box, send it forward and approve it.

The noble Earl, Lord Devon, will add matters on social value. I just say that we may have left the EU public procurement regime but, when you look at the centrality of social value to public procurement in other jurisdictions across Europe, the idea that you would not seek social value through public procurement seems wholly unacceptable.

I was quite struck by the paucity of argument presented in Committee in the other place when our amendment to the Bill was deleted. In addition to:

“It needs to be as flexible as possible”,—[Official Report, Commons, 31/1/23; col. 54.]

which was predictable, what irritated me especially, as my noble friend on the Front Bench is now aware, was that references to integrity, transparency and value for money are already in the Bill, in Clause 12. The Committee in the other place clearly paid no attention to the Bill in front of it, since Clause 12 relates to covered procurement. As we noticed in our debates in Committee, the national procurement policy statement is not confined to covered procurement. It extends to all procurement by government, though not including the NHS, which for these purposes seems to be excluded from “public authorities”, which is a curious definition in itself.

We knew that the NPPS was wider. The Committee at the other end seemed somehow to imagine that covered procurement was enough, but it excludes everything under about £112,000 in value. Therefore, many small procurements would not be affected by it. It simply is not acceptable. We need to go back and ask the Commons to think again about the exclusion of such central principles from the national procurement policy statement. It has been a long time coming back. We are nine months on from the point at which we sent the Bill to the Commons. We took some time getting it to the point that we did. Noble Lords will recall that on the first day in Committee we received 50 government amendments, this clever idea of covered procurement arising only at that point and not in the original draft of the Bill.

To make a final, acerbic comment, I find it somewhat astonishing that during the passage of the Bill the Government have been able to make many hundreds of amendments that they chose to make. At this stage, we are asking for only a small handful that the Lords want to make. The Government at this point might just bend and accept those amendments.

Photo of The Earl of Devon The Earl of Devon Crossbench

My Lords, I regret that due to professional commitments I was unable to contribute as much as I would have liked to earlier stages of the Bill. However, I added my name to two amendments on Report, both of which focused on the importance of recognising social value in the development of the national procurement policy statement. I am grateful to the noble Lords who led on those amendments with such success—the noble Baronesses, Lady Hayman and Lady Worthington, and the noble Lords, Lord Coaker, Lord Fox and Lord Lansley—a truly cross-party team.

The recognition of social value now returns for our consideration with Amendments 4A and 4B. I am again grateful to the noble Baroness, Lady Hayman, for taking the lead and so succinctly gathering in one place the essential priorities and principles to which regard should be given. Chief among them from my perspective is public benefit through the achievement of social value.

I should at this stage disclose my membership of the APPG for Social Enterprise and explain that I was privileged to chair its inquiry into the performance of social enterprise during the dark days of the pandemic. The conclusions of that report were compelling, revealing without doubt that social enterprises—that is, enterprises committed to the delivery of social value alongside more commercial ambitions—performed considerably better during the pandemic than their competitors, be they charities or strictly commercial enterprises. Social enterprises were more resilient, lighter on their feet and more diverse in their employment and service delivery. They delivered a lot more of the smaller contracts—which, as the noble Lord, Lord Lansley, identified, would not be covered by Clause 12—and they performed better economically.

Where they performed much worse than their competition was in their ability to secure support and funding from local and central government through public procurement. We noted that this was a particular issue in England, as compared with Wales and Scotland, because in those jurisdictions social enterprises and social value are identified as priorities within their public procurement strategies. With this amendment we will achieve the same and ensure that the delivery of social value is a priority for government. I urge that it is supported.

Photo of Baroness Noakes Baroness Noakes Conservative 6:00, 11 September 2023

My Lords, I have much sympathy with Motion 1A in this group, tabled by the noble Baroness, Lady Brinton, because I believe that treating the NHS as a special case in any area of public policy has the effect of insulating the NHS, which is a seriously underperforming organisation that desperately needs change.

Having said that, I am afraid I cannot support the noble Baroness’s amendments. Parliament has already decided, in the shape of the Health and Care Act 2022, that the NHS should be subject to a bespoke regime. In effect, the other place was asked to think about that again when this House sent the Procurement Bill there for consideration, and it has sent it back with its response—it wants to keep a bespoke regime for the NHS—so I think we have the answer to that. My noble friend the Minister has made clear that much work has already been done on the interface between the two regimes to make sure that nothing will fall through the cracks.

This boils down to a simple difference of view; the Government want to do it one way and the noble Baroness, Lady Brinton, wants to do it another way. I wonder whether this is really the kind of issue that should be the subject of a prolonged battle between the two Houses. I cannot see that there is a real point of principle here. Also, as my noble friend the Minister pointed out, implementation of that new system in the NHS is already quite a long way advanced and it would appear wasteful to try to undo all that.

I turn to Motion 4A in the name of the noble Baroness, Lady Hayman of Ullock. She has tabled a list of what she calls “priorities and principles” that Ministers must consider before publishing a national procurement policy statement. At first sight these look wholesome and unobjectionable, as one might expect. I have two main reasons for not supporting her amendment.

First, the amendment is unnecessary. Government Ministers and their officials are already focused on value for money, transparency, integrity and even, I say to my noble friend Lord Lansley, innovation. It is government policy to pursue innovation; it is already part of the day-to-day life of government. Many of these items are either implicitly or explicitly already in the law, either administrative law or general law. As has been pointed out, some already feature in the objectives for covered procurements. My noble friend the Minister explained all this in her introductory remarks. Thinking that the Government need a special list of things to think about, in statute, misunderstands the processes of government.

Secondly, the list of items always reflects today’s concerns and is not future-proofed. While some issues such as transparency seem like eternal issues, they were not always unambiguously so. Today’s obsessions with things such as environmental matters will, I predict, be overtaken by other issues of concern, whether Russia and Ukraine or something that we have not yet thought about. I am not clever enough to predict what those other things will be; I just know that the world changes and the orientation of government policy will change with it. The inclusion of a list runs a real risk of being overtaken by events, which is why it is not good legislative practice to put such lists in statute. I hope that both noble Baronesses will not feel it necessary to pursue their amendments and divide the House.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Minister of State (Cabinet Office)

My Lords, I begin by sharing my appreciation for the number of incisive contributions we have heard in the course of this short debate. It is always a pleasure to debate these things here. Of course, they have now been reviewed in the other place, as my noble friend Lady Noakes said, and there was a long discussion, including a long Committee stage attended by my friend in the other place Alex Burghart. I particularly thank noble Lords for all the work that has gone into this across the House, including these important provisions.

My noble friend Lord Lansley is correct that the objective in Clause 12 applies to cover procurement. The NPPS clause allows an NPPS to cover all procurement, but in practice its scope will be determined by the contents of the statement. In my opening remarks I explained at some length the position on the coverage of the NHS. I will come back to one or two of the questions from the noble Baroness, Lady Brinton.

I particularly thank the noble Baroness, Lady Hayman, for all that she said. Concerning principles that need to be considered by Ministers in preparing the NPPS, these principles are already covered through other commitments and legislation, as I have already set out. The amendment is therefore not necessary, as my noble friend Lady Noakes said. In addition, our fundamental view is that the Government of the day should not be constrained by the Bill in their ability to prescribe something more specific. They are free to do so—and I think this is the charm of the Bill—through the NPPS rather than through primary legislation. The Bill is about clarity and simplicity, not layering rules on rules.

To understand how it works in practice, I refer my noble friend Lord Lansley—I think I have already discussed this with him—to the current non-statutory NPPS, which covers innovation and social value. Attempting to drive innovation, which I am as keen on as he is, in every single procurement will not always be relevant or proportionate. Our Bill drives innovation through, for example, our new competitive flexible procedure, pre-market engagement and our duty for contracting authorities to have regard to reducing barriers for SMEs—which will also benefit social enterprises, as the noble Earl, Lord Devon, referred to. Future NPPSs will also be subject to parliamentary scrutiny and consulted on as appropriate.

The consideration of environmental targets and objectives relating to social value in preparing the NPPS, and the other principles set out in this amendment, are duplicative and would render the Bill more complex and confusing for contracting authorities and suppliers. Singling out specific objectives for Ministers to consider will create the impression that they trump others, which could unduly constrain flexibility for a Government to set priorities in future, which they will do through the NPPS. This is a principle seen in other legislation, where you have framing legislation and then statutory guidance.

Finally, regarding environmental considerations—as highlighted in discussions during the REUL Bill debates, although perhaps I should not remind noble Lords of those as they took a long time—Ministers will now be under a legal duty to have due regard to the environmental principles policy statement when making policy, including the development of policies in accordance with the Bill.

On the NHS amendments championed by the noble Baroness, Lady Brinton, I am grateful for the meetings that we have had but I believe that they stem from a confusion. NHS bodies are contracting authorities and therefore already covered by the Bill; we had a good conversation about mixed contracts and so on, which I think was helpful to us both. It would be inappropriate to remove the power to make the provider selection regime regulations, especially given the benefits that they will bring to patients.

In response to a question about the definition of healthcare services, the scope of services in the PSR has been consulted on and will be further supported by reference to a list of common procurement vocabulary codes, set out clearly in the PSR regulations. An indicative list of those codes was included in DHSC’s recent consultation on the PSR.

The noble Baroness made a point about conflicts of interest. Our Bill strengthens existing legal duties on conflicts of interest and embeds greater transparency throughout the commercial life cycle. This has been welcomed and, I think, is important. Furthermore, the provider selection regime regulations will clearly set out provisions for the effective management of conflicts of interest. The PSR is designed to ensure transparency across all procurement decisions to which it applies, including how the decisions were made. This transparency will help ensure that there is proper scrutiny and accountability of decisions to award contracts for healthcare services.

Finally, an independently chaired panel will provide expert review and advice concerning decisions made under the PSR, helping to ensure that procurement processes are transparent, fair and proportionate. I very much hope that that additional information about our plans for the PSR will enable this debate about just how these two regimes, both of which have been discussed constructively and at length in this House, fit together, and that noble Lords feel able to support the government amendments and withdraw the amendments that they have put forward.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat

My Lords, I thank everybody who has spoken in this brief debate. I particularly thank the noble Baroness, Lady Noakes, for at least agreeing with the principle, even if she cannot support me in the Division Lobby, because it is really important.

For all the reasons that the Minister outlined, we are where we are. When we were working on the Health and Care Bill, it was absolutely evident that the secondary legislation changes would be outlined quickly thereafter—I am looking at others who were in the Chamber at the same time—and agreed by last autumn. We are now 17 months on and there is no sight of them at all.

The Minister outlined the NHS provider selection scheme and all its arrangements. That it is not looking for a culture change worries me most. In my earlier speech I gave examples of the behaviour of three senior managers at three CCGs, which the public would not have known about if the losing company had not gone to the Technology and Construction Court. This revealed that it is all too easy, where the culture is poor, for people to believe that the rules are being followed when they are not.

I appreciate that we have a point of difference on this, but on our Benches we believe that there is much benefit in this Procurement Bill and do not understand why the NHS is excluded. It is perfectly possible to include some special arrangements for it, but nothing has happened since the Health and Care Act was enacted. At the moment, nothing we are hearing from the NHS is about that culture change. On that basis, I wish to test the opinion of the House.

Ayes 76, Noes 187.

Division number 3 Procurement Bill [HL] - Commons Amendments — Amendment to the Motion on Amendment 1

Aye: 74 Members of the House of Lords

No: 185 Members of the House of Lords

Aye: A-Z by last name


No: A-Z by last name


Amendment to the Motion disagreed.

Motion on Amendment 1 agreed.