Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad — Legislation, Justice and Constitution Committee
Senedd Cymru Bae Caerdydd, Caerdydd, CF99 1SN
0300 200 6565
— Welsh Parliament
Cardiff Bay, Cardiff, CF99 1SN SeneddLJC@senedd.wales
senedd.wales/SeneddLJC 0300 200 6565
22 September 2022
Scrutiny of the Social Partnership and Public Procurement (Wales) Bill
Thank you for agreeing to appear before the Committee on 12 September as Member in charge of
the Social Partnership and Public Procurement (Wales) Bill.
In light of the suspension of Senedd business due to the death of Her Majesty Queen Elizabeth II, we
have decided against rescheduling the session, and instead seek evidence on the Bill from you in
Please find a list of questions at the Annex. I would be grateful to receive your responses to them by
14 October 2022.
Hannah Blythyn MS
Deputy Minister for Social Partnership
Are you content that all provisions of the Bill as introduced fall within the legislative
competence of the Senedd?
Are there any human rights issues arising from the Bill?
The draft Bill included a fair work duty on Welsh Ministers to set fair work objectives, to
take steps to achieve these, and to annually report on progress. For what reasons have
these proposals not been included in the Bill introduced into the Senedd? Have these
elements of the draft Bill been removed due to the limits on the Senedd’s legislative
Can you set out why the Welsh Government has chosen to introduce legislation in relation
to social partnership, fair work and socially responsible public procurement as opposed to
following a non-statutory approach?
The Welsh Government wrote to the UK Government and other devolved administrations
about this Bill as it is covered by the Public Procurement Common Framework. Did any of
the other UK administrations raise concerns with you about the Bill? If so, what were their
concerns and how did you respond?
Relationship with the UK Government Procurement Bill
The Minister for Finance and Local Government confirmed that the Welsh Government
would use the UK Government’s Procurement Bill to reform public procurement processes
in August 2021. In a letter from the Minister for Finance and Local Government on 1
September, the Minister says:
“Incorporating the Procurement Bill into the SPPP Bill would have required
changing the scope of the SPPP Bill as it would have predominantly become a
Procurement Bill, shifting the focus of the Bill away from Social Partnerships. Also,
the Bills are aiming to achieve different things – the Procurement Bill focuses on the
processes underpinning procurement, whilst the SPPP Bill will focus on ensuring
socially responsible outcomes are achieved from our procurement.”
With regard to the Finance Minister’s letter to us of 1 September, why would changing the
scope of the Bill to include procurement processes be a problem, particularly if it mirrored
what the UK Government proposed and led to more accessible bilingual legislation?
The Explanatory Memorandum (“EM”) states that one of the Bill’s objectives is to “ improve
the link between procurement processes and the delivery of outcomes through contract
management.” Does this statement not suggest that there is a similarity between the Bills
and that there may have been benefit to combining the two of them?
Did you consider a separate Welsh Government Procurement Bill, mirroring provisions in
the UK Government Bill which would have enabled scrutiny by Members of the Senedd,
which would sit alongside the Social Partnership and Procurement Bill?
The Minister’s letter of 1 September letter also referred to the need for consistency in
procurement practice. The UK Bill provides the Welsh Ministers with powers to make
secondary legislation. Why can consistency be achieved through separate secondary
legislation being implemented in Wales and England, but not separate primary legislation?
Can you summarise how this Bill interacts with the UK Government legislation, and how
the UK Government legislation impacted upon the development of this Bill?
One of the principles set out by the Counsel General is to aim for clear and accessible law
on the statute book in Wales. If this Bill and the UK Government’s Procurement Bill are
passed, procurement law that is applicable to Welsh citizens will be contained in both
Senedd and UK Parliament Acts. Why has the Welsh Government not adhered to its own
principles of clear and accessible legislation?
Section 17 of the Bill provides that the Welsh Ministers must consult with the Social
Partnership Council “when making decisions of a strategic nature” about the reasonable
steps to take to meet their wellbeing objectives under the Well-being of Future
Generations Act 2015. In written evidence to the Equality and Social Justice
Committee, Audit Wales considers that the phrase “decisions of a strategic nature” could
be clarified on the face of the Bill, “as it does not seem entirely appropriate for the Welsh
Ministers to be providing guidance to themselves on the interpretation of this phrase.”
Have you considered clarifying this phrase on the face of the Bill?
Section 20 of the Bill amends section 4 of the Well-being of Future Generations Act 2015
by substituting ‘fair work’ for ‘decent work’ within the existing “A prosperous Wales” goal.
In written evidence to the Equality and Social Justice Committee, Professor Alan
Felstead noted that “the Explanatory Memorandum attached to the tabled Bill suggests
this will mean that ‘fair work takes on its ordinary meaning’, even though the term has very
specific meaning which has been accepted by Welsh Government.” Do you believe that
the absence of this accepted definition within this Bill will have any impact on the
accessibility and the clarity of the requirements of the Well-being of Future Generations
Powers to make subordinate legislation
Are you satisfied that the Bill strikes the right balance of providing detail on the face of the
Bill versus giving regulation-making powers to the Welsh Ministers?
Section 32 requires the Welsh Ministers to publish a code of practice (the “public services
outsourcing and workforce code”) about employment and pensions matters related to
outsourcing services contracts. The “social public workforce clauses” will be included as
part of that code. Other sections (such as section 33) also provides that the code
published under section 32 must include model contract clauses, that will underpin the
aims of the Bill in ensuring socially responsible public procurement. The code of practice
will therefore play a central role. With that in mind, why does the code have no scrutiny
procedure attached to it, and why is there no duty to consult on the code? Will the Welsh
Government publish a draft code of practice at the very least before the amending stages
of the Bill in order that Members have an opportunity to scrutinise it?
Section 38(3) gives Welsh Ministers regulation-making powers to amend section 38(2) of
the Bill to specify other matters which procurement strategies should address and to
reduce the number of days specified in section 38(2)(c) (the maximum number of days
within which invoiced should be paid). This is a power that can amend primary legislation
(a Henry VIII power) yet only the negative scrutiny procedure is applied. Welsh
Government drafting guidelines recommend that any powers to make secondary
legislation that have the ability to amend primary legislation should be subject to the
affirmative procedure. In light of this, why have you decided only to apply the negative
scrutiny procedure in this case?
Section 48(1) of the Bill states that “this Act comes into force on such day as the Welsh
Ministers may by order appoint”. When do you intend for the Bill to come into force,
should it be passed by the Senedd?
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