Amendment 91 to UK Procurement Bill Agreed – Combatting Forced Organ Harvesting
30th November 2022: The debate in the House of Lords concluded with Amendment 91 (forced organ harvesting) to the Procurement Bill defeating the Government, winning 191 votes to 169. The amendment will now go to the House of Commons after the Bill’s Third Reading in the Lords on the 13th December.
Click HERE for the full discussion.
The video for the debate can also be viewed HERE. (Amendment 91 commences at 17:41:12)
91: Schedule 7, page 106, line 41, at end insert—
“Involvement in forced organ harvesting
15A (1) A discretionary exclusion ground applies to a supplier if a decision-maker determines that the supplier or a connected person has been, or is, involved in—(a) forced organ harvesting,(b) unethical activities relating to human tissue, including anything which involves the commission of an offence under sections 32 (prohibition of commercial dealings in human material for transplantation), 32A (offences under section 32 committed outside UK) or 33 (restriction on transplants involving a live donor) of the Human Tissue Act 2004, or under sections 20 (prohibition of commercial dealings in parts of a human body for transplantation) or 20A (offences under section 20 committed outside UK) of the Human Tissue (Scotland) Act 2006, or(c) dealing in any device or equipment or services relating to conduct mentioned in paragraphs (a) or (b).(2) “Forced organ harvesting” means killing a person without their consent so that their organs may be removed and transplanted into another person.”Member’s explanatory statement
This amendment is designed to give a discretionary power to exclude suppliers from being awarded a public contract who have participated in forced organ harvesting or unethical activities relating to human tissue, including where they are involved in providing a service or goods relating to such activities.
In Committee, the Minister resisted my amendment, although she appreciated the seriousness of the issue that I raised. She said that the Bill is clear that any serious breach of ethical or professional standards applicable to the supplier would meet the discretionary exclusion ground for professional misconduct. But she also argued that while the exclusion ground of professional misconduct is intended precisely to cover all the ethical issues arising in different industries and sectors, the grounds for exclusion cannot and should not list every issue within a particular industry.
I understand the argument about lists in legislation, but sometimes there is a strong reason to list a particular practice. This practice is so appalling that there is a strong case for listing it. It is a discretionary ground. It is not mandatory. I have made my amendment as mild as possible, to encourage the Government to accept it. If the Minister continues to say that it is not necessary to list organ harvesting, I would point her to Schedule 7, which specifies a number of grounds for discretionary exclusion, including labour market conduct and environmental misconduct. The organ harvesting that I am talking about fits that strength of criteria.
I return to the Prime Minister’s very important speech on Monday night about our relationship with China. It was nuanced, of course, and it recognised some of the economic realities of that relationship, of which the Minister will be well aware. However, he affirmed that the media and parliamentarians must be able to highlight issues in China without sanction, including calling out abuses in Xinjiang and the curtailment of freedom in Hong Kong.
Last year, the House agreed an amendment to the Medicines and Medical Devices Bill to include consent provisions for imported human tissue for use in medicines. Earlier this year, we amended the Health and Care Bill to prohibit the commercialism of organ tourism. They may be small steps, but internationally they were regarded as a visible sign of this country’s concern and as significant. I hope that tonight the House will go one step further. A discretionary power is a modest ask of the Minister. I really hope that we can take one small step towards ending these abhorrent practices. I beg to move.
Proposed new subsection (3) sets out what must be included in the regulations. Questions raised by my noble friend the Minister in Committee and now included concern about whether this amendment would place an obligation on the Government not to procure from these nations. The answer is no. The amendment enables the Government first to identify where we are dependent on authoritarian regimes for key supplies; then to define acceptable levels of dependency across industries; and then to publish an annual review of dependency. It does not prohibit procurement from these nations.
The real question we should be asking is why, given all that we have experienced with Covid and Ukraine, we would not want to do this. With this information, the Government are then in a position to manage down risk to the British people in key sectors. Had Germany undertaken such an approach to its dependencies, it would never have allowed itself to develop such a dependency on Russia for energy. The entire amendment has been framed to give the Government regulation-making powers, meaning that they have the ability to ensure that there are no unintended consequences and to draft the regulations in line with the wider strategy for public procurement.
Another question raised by my noble friend the Minister was whether this would impact on our procurement flexibility. There is no evidence for this; rather there is clear international precedent for this proposed new clause. For example, the EU Commission staff working document Strategic Dependencies and Capacities provides mapping of EU dependencies in the most sensitive ecosystems and provides a range of policies that could be taken to address these issues. The United States also publishes a similar regular review.
The risks of economic dependency, however, are not the only relevant matters here. The second part of the amendment proposes new subsections (4) and (5), which address a separate issue: modern slavery in the supply chains of publicly procured goods. The presence of modern slavery in supply chains is clearly unacceptable. This has rightly been acknowledged by the Department of Health and Social Care, which has already taken steps in the Health and Care Act to eradicate from its supply chains goods “tainted”—a Department of Health word—by slavery.
Proposed new subsection (4) in this amendment adopts substantially the same language as Section 81 of the Health and Care Act, passed earlier this year. The requirement to bring regulations to, in the words of the Department of Health and Social Care, eradicate
“from all public contracts goods or services that are tainted by slavery”
now stands as part of that Act.
As things stand, when the Health and Care Act regulations are drawn up and passed, those procuring health equipment will have to apply different human rights standards from those procuring goods and services on behalf of other government departments. The main intention of this amendment is to align procurement standards across government so that the UK Government speak with one voice. It seems odd for us to be unwilling to procure goods from Xinjiang for the NHS but comfortable doing so for the Home Office. This is about correcting a loophole in the law and seems a matter of simple common sense.
From my conversation with the Minister, it would seem that Department of Health officials are already in conversation with Cabinet Office officials about how to draft these regulations to implement them for the Department of Health. This enables those same officials to work to draft regulations that would work for the whole of government.
I know the Minister has some concerns about aspects of this amendment and its potential chilling effect on business, but where this has been operationalised in, say, the US, it has not had such an impact. I will address the Minister’s potential concerns, the thrust of which, if I understand them correctly, is that the amendment could increase the compliance burden on small and medium-sized businesses. We are not seeking to create extra burdens above and beyond what is necessary, but this amendment is about fine-tuning our existing system to bring it in line with best practice.
As I have stated, proposed new subsection (5)(a) to (c) focuses on ensuring that there is one consistent standard of regulation for modern slavery across government. Rationalising the standard so that the Department of Health and Social Care is not an outlier seems sound. The regulation-making powers lie in the hands of the Government to ensure that small businesses do not suffer.
Proposed new subsection (5)(d) requires businesses to know the sources of their products. Businesses that do not know the origins of the products they are selling, or their constituent parts, are unable to offer assurances about labour standards in their supply chain, but they also face major business barriers to guaranteeing supply and implementing product control and recall. This means that most businesses can map out their supply chain. Calling for transparency to ensure that we do not have modern slavery in supply chains is relatively uncontroversial.
Ultimately, the two risk areas of dependency and modern slavery cut to the heart of our character as a nation. We want to stand as a beacon for liberal democratic values around the world. To do this we need to ensure we retain the autonomy to act in line with our values by reducing our dependency on authoritarian states. We also need to ensure that we are living consistently within our values by ensuring that there is no modern slavery in our supply chains. The Department of Health and Social Care has shown the way. This amendment enables the rest of government to come into line.
I turn now to Amendments 94 and 95 tabled by the noble Lord, Lord Alton. In response to his comments on the situation in Xinjiang, I say that of course the Government are concerned about the widespread use of invasive and systematic surveillance there that disproportionately targets Uighurs and other minorities. In line with the Prime Minister’s speech on Monday, which has been much referenced, the UK has led international efforts to hold China to account for its human rights violations in Xinjiang. We have imposed sanctions, provided guidance to businesses, announced measures to tackle forced labour, and led statements at the United Nations. The Government have spoken out publicly, and will continue to do so.
I am glad there has been a warm welcome for last week’s announcement in relation to the use of Chinese surveillance equipment on the government estate. This is a significant step; all government departments will be expected to remove such equipment from sensitive sites, and to avoid procuring it in future. I confirm that this applies to both Hikvision and Dahua. This is a clear demonstration that the Government are prepared to act to protect the integrity of our security arrangements. We recognise that action taken should be proportionate to the risk. We encourage all organisations to follow national cybersecurity guidance when selecting a technology supplier, and this guidance clearly sets the security standards that suppliers should meet and the considerations that organisations should be making during the procurement process. We will continue to keep this risk under review and will take further steps if they become necessary.
In addition, we have taken action in the Bill to introduce an exclusion ground for suppliers that are considered to pose a threat to the national security of the UK. Combined with the new powers for a centralised debarment list, this will mean that where the risk is sufficiently serious, Ministers can act quickly to ensure that suppliers who threaten national security face exclusion from all contracts across the public sector. We have shown our determination only last week, as I said, and the Bill strengthens our powers in this space.
I turn now to what Amendment 94 actually does. In mandating a timeline for the removal of existing physical technology or surveillance equipment from the Government’s supply chain, the amendment seeks to interfere directly with security arrangements on the government estate. I am afraid this is out of step with the Bill, which is principally about setting rules for the fair and open procurement of contracts by the entire public sector. The Bill is not concerned with existing equipment or kit which has already been installed, or with the termination of existing contracts by central government. On that basis, while I sympathise with the points made by noble Lords, and will ensure they are shared more broadly, I believe that we are taking the right approach in the Bill and I am very uneasy about this amendment.
I turn now to Amendment 95 on product labelling; there has not been much discussion of it.