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Clause 8

Volume 124: debated on Tuesday 15 December 1987

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The Conditions: Further Provisions

I beg to move amendment No. 8, in page 7, line 37, at end insert

'(5) If the Secretary of State so provides by regulations, the fifth condition shall not be treated as fulfilled unless—
  • (a) in accordance with prescribed requirements there is prepared and certified a document which appraises and fulfils such other conditions as may be prescribed with respect to responses falling within subsection (2) above and the bid referred to in subsection (3) above; and
  • (b) at such time or times (prior to reaching the decision referred to in section 7(7) above) as may be prescribed, copies of that document are provided or made available in accordance with any prescribed requirements;
  • and "prescribed" here means prescribed by the regulations.
    (6) Where any document is provided or made available in accordance with the requirements of regulations under subsection (5) above, the publication thereby of any defamatory matter in the document shall be privileged unless the publication is proved to be made with malice.'.
    Part I of the Bill is about competition, and, in order for competition to have the desired effect of creating genuine pressure for better value for money, it naturally contains provisions to ensure that competition will be open and fair. Apart from the general duty in clause 7 not to act in an anti-competitive manner, it contains certain specific duties, such as to meet financial objectives and to publish accounts showing whether they have been met, and powers to add further relevant duties, such as those in clause 8 dealing with the handling of tenders.

    This amendment is tabled in response to representations which have been made by various interested parties—and with which I wholeheartedly agree—to the effect that one of the most useful of all possible ways of ensuring fairness of competition is to enable all those concerned to see the tender appraisal on the basis of which councils are likely to take a decision to award work in house. The reference to a certified document reflects our belief that any such appraisal should be certified as fair by an appropriate officer.

    7.45 pm

    We have thought it right to introduce this notion also via an enabling power rather than as a set of duties spelt out on the face of the Bill. Essentially, that is because we realise that imposition of such a duty may be less straightforward than it seems. The last element of the amendment already recognises, and deals with, the possibility of the duty leading to the publication of material which might otherwise be construable as defamatory. Other issues could arise, and we therefore wish to approach the use of this power via consultation on a fully worked-up set of detailed proposals.

    Although I cannot anticipate what they will be, I can point out to the House that at least one authority—the London borough of Wandsworth—already publishes its tender appraisals for service contracts because it sees them as simply one important element of open and accountable government, whether or not there is an in-house tender for the work. I understand that this practice has not given rise to any problems at all—the very opposite, indeed, since people can now read for themselves the basis on which these important decisions are made.

    I hope, therefore, and fully expect, that it will be possible to work up an entirely acceptable scheme on the basis of this power, and commend it to the House accordingly.

    I am grateful to the Minister for the way in which he explained the amendment. It stopped my asking him a series of questions. I press him about the content of the proposed subsection (6). If the appraisal document simply tells the truth in respect of what is thought about a company's actions, I presume that it will not be defamatory. It is probably a legalistic point, but will the Minister enlighten us on it? I am not looking for problems. People want to know whether they can put the truth in appraisal documents without being defamatory. Therefore, they would not need the protection of privilege. We are not looking for barriers.

    Amendment agreed to.