I couldn't resist this quotation as a title for a blog. This was said by Angela Rayner MP, the deputy Leader of the Opposition in the first parliamentary debate of 2023 on the Procurement Bill passing through the Houses of Parliament. I am not going to comment on the entire debate, but a couple of interesting points arise.
For those interested, the link to the full debate on the Second Reading on 9 January 2023 is at
https://hansard.parliament.uk/Commons/2023-01-09/debates/2936011F-A818-40FC-941B-D53E05672870/ProcurementBill(Lords).
This is the latest stage in the ongoing discussions regarding the forthcoming new procurement legislation. An excellent summary of the progress of the legislation is provided in the House of Commons library briefing no. 9402, "Procurement Bill 2022-23" at https://commonslibrary.parliament.uk/research-briefings/cbp-9402". Other recent briefings on reform of defence procurement and single source procurement are also relevant.
In this blog I pick up a few points from the debate.
First, a general observation about political debates concerning any new procurement legislation. Just as each round of revision of EU procurement directives sought to simplify the regime but only ended up being longer each time, so we can see the same problem emerging here. The power of public procurement is sometimes confused with Public Procurement law and reform of the law becomes the great hope of so many political dreams - revival of SMEs, a range of social policies, enforcement of standards about slavery etc, and so on and so on. And as each policy gets packed in, it becomes ever harder to discern with clarity what the legislation actually aims to achieve. This will inevitably increase the cost and complexity of the procurement process for all concerned.
A broad array of points were raised in the debate in the House of Commons but there were two recurring themes around the role of small and medium sized enterprises in procurement, and the need to achieve social value.
Taking the role of SMEs, this seems to be raised rather disingenuously as some new discovery with which this post-Brexit government is able to liberate Britain from the shackles of a repressive big business regime. This certainly seems to be the point made in Cabinet Office publicity puffs for the Bill produced this month. Unfortunately this rhetorical flourish does no service to all the hard work done by those preparing this legislation, because this is a topic which the EU was closely concerned with in the 2014 directives and which the UK government has been keen to build on in various policies over the last decade or so. The Cabinet Office itself produced a Procurement Policy Note on the subject in 2015 (PPN 03/15) after having looked in detail at the role of small business in public procurement in the UK and beyond. It might have been conducive to better legislation to note that this was not something which EU legislation prevented anyone from doing, but rather that there are real difficulties here and that it might be interesting to know why Cabinet Office must think its efforts for the last 8 years amount to failure before blaming everything on the constraints of the EU regime.
As to social value, it is interesting that the need to ensure that social value is obtained from public contracts seems no longer to be popular in government. Despite pressure in the House of Lords and in this debate, it is to be relegated to a consideration in the National Procurement Policy Statement provided for under the future Act. This is odd, first because the notion of incorporating social value as a goal of public procurement was of course a Conservative initiative in 2012. The government produced its own Social Value Model for procurement at the end of 2020. Further a frequent criticism of its role in UK procurement has been that it can be used as a cover for local or national preference. Given the government's apparent interest in using any opportunity to achieve this, its coyness here might be thought to be surprising. The National Procurement Policy Statement leaves some scope for development here and given the need to comply with requirements of that Statement in procurement it may be that there will be little change here. A clearer more transparent explanation on this would nonetheless be very helpful at this stage.
Finally, it may be trivial but the rhetoric around this legislation is desperate. This is a pity because, unlike some post-Brexit efforts, it is the product of alot of hard work by officials. It was again stated in debate that the Bill tears up 350 Regulations. This is infantile. Yes, four sets of Regulations are consolidated so that what was probably alot more than 350 Regulations will become 124 sections in the current draft of the Bill. But there are also 11 detailed schedules with dozens of paragraphs. And so much is left for later elaboration in secondary legislation there must be a fair chance the cumulative number of provisions will sail past 350 by the time the whole measure is in place. Does this matter? It's a silly measure of legislative quality anyway.
Well, I return to my last post. It is important to note where a democratic regime is captive to its own lies. While here, this is a silly and technical point, it is a pretty flagrant attempt to misrepresent the truth of this legislation. It is important to note where a government feels it necessary to perpetuate such silliness as it is one step on a slippery slope.
But let's take the good news. Over 20 years after the first EU-derived procurement regulations we finally have a debate about new procurement legislation on the floor of the House of Commons. It is good to see that some leading politicians cannot get enough of procurement. Readers of this blog won't need telling how important and exciting this subject is and it is exciting to see that we have at least one convert.
As usual, if anything in this blog looks like a view, it's mine and not that of any organisation I'm associated with. And I have to make the boring remark that none of any of this is to be taken to be legal advice. If you want advice, you know where to reach me!
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