My Lords, I will offer a few general observations. I do not have any amendments in this group, and I will echo some of what my noble friend Lord Maude has just said.
I will make four points. First, I see little point in duplicating in this Bill what is already on the statute book. We have already referred to the Public Services (Social Value) Act 2012. This deals with social value and does not need to be repeated in the Bill. That applies to other matters as well.
Secondly, lists of noble Lords’ favourite topics, such as climate change and innovation, run the risk of accelerating the Bill’s obsolescence. This is the case even if lists are drafted in a non-exhaustive form. The
list itself provides context for interpreting the statute at a later stage. Those interpreting the legislation will look at what Parliament’s intention was when we passed it. The sorts of things we put in now will help determine the framework within which that judgment is made.
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At the same time, fixing lists at one point in time creates the possibility of irrelevance over time, because things become more or less important. I submit that this is even the case in relation to today’s hot topics of climate change and biodiversity, which may well become less important over time. We only have to look at our own experiences over the last 30 years of how our priorities have changed. Most of us would not have included those items on our lists 30 years ago. In 30 years’ time, I suspect we will have different things we will need to focus on.
Thirdly, we must beware of unintended consequences, especially for SMEs. Amendment 42, in the name of the noble Baroness, Lady Worthington, seeks to define “public benefit”. If certain elements of public benefit are made explicit, it will likely drive procurement officials into a check-box mentality. This could, in turn, conflict with common sense. Is it common sense that every procurement has to consider what every supplier is doing for climate change and biodiversity? Amendment 42 would drive in that direction. In turn, that would probably rule out a lot of small suppliers who do not have the bandwidth to articulate their environmental footprint to satisfy procurement bureaucracies—nor should they need to.
Finally, less is often more in legislation. Amendments 33 and 46 by the noble Baroness, Lady Hayman of Ullock, introduce procurement principles. She does not say how these principles interact with the procurement objectives in Clause 11, even though they cover some of the same ground, such as value for money. She attempts to clarify what each of the principles means by saying what has to be done to meet them, but it is not clear whether these descriptions are exhaustive or illustrative.
For example, take her principle of fair treatment of suppliers, which is to be achieved
“by ensuring that decision-making is impartial and without conflict of interest”.
Is that it? What about the role of hidden barriers to entry in contract specification? What about the impact of contract terms on different types of supplier, such as SMEs? It is very hard to be a legal draftsman in opposition, and indeed on the Back Benches. However, excessive specification is one certain route to legislative uncertainty, which your Lordships’ House must surely want to avoid. I hope noble Lords will reflect on these points in deciding whether it is necessary to test the opinion of the House.