Y Pwyllgor Deddfwriaeth, Cyfiawnder a’r Cyfansoddiad — Legislation, Justice and Constitution Committee

Senedd Cymru Bae Caerdydd, Caerdydd, CF99 1SN

SeneddDCC@senedd.cymru senedd.cymru/SeneddDCC

0300 200 6565

— Welsh Parliament

Cardiff Bay, Cardiff, CF99 1SN SeneddLJC@senedd.wales

senedd.wales/SeneddLJC 0300 200 6565

22 September 2022

Dear Hannah

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

writing.

Please find a list of questions at the Annex. I would be grateful to receive your responses to them by

14 October 2022.

Yours sincerely,

Huw Irranca-Davies

Chair

Hannah Blythyn MS

Deputy Minister for Social Partnership

Annex

General

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

competence?

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?

Accessibility

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

Act?

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?