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Welsh Parliament Legislation, Justice and Constitution Committee
Report on the Social Partnership and Public Procurement (Wales) Bill November 2022
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www.senedd.wales
Welsh Parliament Legislation, Justice and Constitution Committee
Report on the Social Partnership and Public Procurement (Wales) Bill November 2022
About the Committee The Committee was established on 26 May 2021. Its remit can be found at www.senedd.wales/SeneddLJC
James Evans MS Welsh Conservatives
Peredur Owen Griffiths MS * Plaid Cymru
Committee Chair: Huw Irranca-Davies MS Welsh Labour
Current Committee membership:
Alun Davies MS Welsh Labour
The following Member was also a member of the Committee during the scrutiny of the Bill.
Rhys ab Owen MS Independent Plaid Cymru Member
*Peredur Owen Griffiths MS was not a member of the Committee during the scrutiny of the Bill.
Report on the Social Partnership and Public Procurement (Wales) Bill
Contents
Recommendations ........................................................................................... 5
1. Introduction ............................................................................................ 6
Background to the Bill ......................................................................................................................... 6
The purpose of the Bill ........................................................................................................................ 6
The Committee’s remit ........................................................................................................................ 7
2. Legislative competence .......................................................................... 8
General ...................................................................................................................................................... 8
Human rights .......................................................................................................................................... 8
Our view .................................................................................................................................................... 8
3. General observations ........................................................................... 10
The need for primary legislation ..................................................................................................... 10
Interaction with the UK Government’s Procurement Bill ....................................................... 10
Balance between what is on the face of the Bill and what is left to subordinate
legislation ............................................................................................................................................... 14
Our view ................................................................................................................................................... 15
4. Specific observations on particular sections and powers to make
subordinate legislation ................................................................................. 17
Section 17 (Social partnership duty: Welsh Ministers) ............................................................ 17
Our view ........................................................................................................................................... 18
Section 20 (Fair work).......................................................................................................................... 18
Our view .......................................................................................................................................... 20
Section 22 (Contracting authorities); section 24 (Socially responsible procurement
duty); section 25 (Socially responsible procurement duty: major construction
contracts); section 39 (Annual socially responsible procurement reports) .................... 20
Our view ........................................................................................................................................... 21
Section 32 (Public services outsourcing and workforce code) ............................................. 21
Report on the Social Partnership and Public Procurement (Wales) Bill
Our view .......................................................................................................................................... 22
Section 38 (Procurement strategy)................................................................................................ 23
Our view .......................................................................................................................................... 24
Section 48 (Coming into force)....................................................................................................... 25
Our view .......................................................................................................................................... 26
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Recommendations
Recommendation 1. The Deputy Minister should table an amendment to the Bill to include,
within its interpretation section, a signpost to the definition of “decisions of a strategic nature”
within the statutory guidance on the socio-economic duty made under the Well-being of Future
Generation (Wales) Act 2015. ................................................................................................................. Page 18
Recommendation 2. The Fair Work Commission’s definition of “fair work”, with appropriate
commentary, should be included within non-statutory guidance for stakeholders and bodies
subject to the duties under the Well-being of Future Generation (Wales) Act 2015. .............. Page 20
Recommendation 3. The Deputy Minister should table an amendment to the Bill to apply the
negative procedure to the power to issue the public services outsourcing and workforce code
within section 32 of the Bill, and any future revisions to it. .......................................................... Page 22
Recommendation 4. The Deputy Minister should table an amendment to the Bill to include a
duty to consult on the public services outsourcing and workforce code within section 32, and
any future revisions to the code. ......................................................................................................... Page 23
Recommendation 5. The Deputy Minister should table an amendment to the Bill to include a
duty to consult on guidance issued under section 43, and any future revisions to such guidance.
...................................................................................................................................................................... Page 23
Recommendation 6. The Deputy Minister should publish a draft version of the public services
outsourcing and workforce code ahead of the start of Stage 3 of the Bill. ............................. Page 23
Recommendation 7. The Deputy Minister should table an amendment to the Bill to apply the
affirmative procedure to the power within section 38(3)(a). ........................................................ Page 24
Recommendation 8. The Deputy Minister should table an amendment to the Bill to apply the
affirmative procedure to the power within section 38(3)(b). ........................................................ Page 24
Recommendation 9. The Deputy Minister should clarify which convention she is referring to
in her letter of 15 October 2022 to the Committee. ....................................................................... Page 24
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1. Introduction
On 7 June 2022 Hannah Blythyn MS, the Deputy Minister for
Social Partnership (the Deputy Minister) introduced the Social
Partnership and Public Procurement (Wales) Bill (the Bill),1 and
accompanying Explanatory Memorandum (the EM).2
1. The Senedd’s Business Committee referred the Bill to the Equality and Social Justice
Committee on 24 May 2022, and on 14 June 2022 set a deadline of 18 November 2022 for
reporting on its general principles.3
2. On 13 June 2022, the Deputy Minister issued a statement of policy intent for subordinate
legislation to be made under the Bill.4
Background to the Bill
3. In February 2021, the Welsh Government issued a draft version of the Bill for public
consultation.5
4. The EM states that there was “substantial support for the provisions” within the draft Bill
and “overall agreement” that legislation would strengthen current social partnership
arrangements in Wales.6 The EM also confirms that following the consultation a number of
policy changes were made, which are now reflected in the Bill.7
The purpose of the Bill
5. The long title of the Bill is:
“An Act of Senedd Cymru to make provision about sustainable development
in accordance with a principle of social partnership; about socially responsible
1 Social Partnership and Public Procurement (Wales) Bill, as introduced 2 Social Partnership and Public Procurement (Wales) Bill, Explanatory Memorandum incorporating the Regulatory
Impact Assessment and Explanatory Notes, June 2022 3 Business Committee, Timetable for consideration: The Social Partnership and Public Procurement (Wales) Bill, June
2022 4 Welsh Government, Social Partnership and Public Procurement (Wales) Bill: Policy intent for regulations, directions
and guidance, June 2022 5 Welsh Government, Draft Social Partnership and Public Procurement (Wales) Bill, February 2021 6 EM, paragraph 147 7 EM, paragraph 150
Report on the Social Partnership and Public Procurement (Wales) Bill
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public procurement; establishing a Social Partnership Council for Wales; and
for connected purposes.”
6. The EM states that the Bill “provides for a framework to enhance the well-being of the
people of Wales by improving public services through social partnership working, promoting fair
work and social responsible public procurement.”8
The Committee’s remit
7. The remit of the Legislation, Justice and Constitution Committee is to carry out the
functions of the responsible committee set out in Standing Orders 21 and 26C. The Committee
may also consider any matter relating to legislation, devolution, the constitution, justice, and
external affairs, within or relating to the competence of the Senedd or the Welsh Ministers,
including the quality of legislation.
8. In our scrutiny of Bills introduced in the Senedd, our approach is to consider:
▪ matters relating to the competence of the Senedd, including compatibility with the
European Convention on Human Rights (the Convention rights);
▪ the balance between the information that is included on the face of the Bill and that
which is left to subordinate legislation;
▪ whether an appropriate legislative procedure has been chosen in relation to the
granting of powers to the Welsh Ministers to make subordinate legislation; and
▪ any other matter we consider relevant to the quality of legislation.
9. We were due to take evidence from the Deputy Minister at our meeting on 12 September
2022.9 However, in light of the Senedd observing a period of national mourning following the
death of Her Majesty The Queen, Senedd business was suspended on this date. In lieu of the
evidence session, the Committee wrote to the Deputy Minister on 22 September 2022;10 the
Deputy Minister responded on 14 October 2022.11
10. We have also taken account of written and oral evidence provided to the Equality and
Social Justice Committee.12
8 EM, paragraph 1 9 Legislation, Justice and Constitution Committee, 12 September 2022 10 Letter to the Deputy Minister for Social Partnership, 20 September 2022 11 Letter from the Deputy Minister for Social Partnership, 14 October 2022 12 See the webpage for the Bill.
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2. Legislative competence
The Welsh Government is satisfied that the Bill would be within
the legislative competence of the Senedd.13
General
11. We considered the Bill under the reserved powers model of legislative competence, as set
out in section 108A of the Government of Wales Act 2006 (the 2006 Act).
12. In her statement on legislative competence, the Llywydd, Elin Jones MS, stated that the Bill
as introduced would be within the legislative competence of the Senedd.14
13. We asked the Deputy Minister to confirm that she was content that all provisions of the Bill
as introduced fall within the legislative competence of the Senedd. In response, the Deputy
Minister said:
“The Llywydd’s letter of 06 June to the First Minister confirmed that in her
view this Bill is within the legislative competence of the Senedd.”15
Human rights
14. One of the requirements which must be met for a Bill to be within the legislative
competence of the Senedd is set out in section 108A(2)(e) of the 2006 Act and requires all
provisions of a Bill to comply with the Convention rights.
15. The Deputy Minister told us that no human rights issues have been identified as arising
from the Bill.16
Our view
16. We note that the Llywydd has stated that, in her view, the provisions of the Bill would be
within the legislative competence of the Senedd.
13 EM, Member’s Declaration, page 2 14 Presiding Officer’s Statement on Legislative Competence, 7 June 2022 15 Welsh Government, Letter from the Deputy Minister for Social Partnership, 14 October 2022, response to
question 1 16 Welsh Government, Letter from the Deputy Minister for Social Partnership, 14 October 2022, response to
question 2
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17. We note that the Deputy Minister has, within the EM, also set out her view that the
provisions of the Bill would be within the legislative competence of the Senedd. However, we
are disappointed that she has been unable to confirm this view to us in correspondence, and
has instead directed us to the Llywydd’s view.
18. We note the Deputy Minister’s view that no human rights issues have been identified as
arising from the Bill.
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3. General observations
The need for primary legislation
19. We asked the Deputy Minister to set out why the Welsh Government had chosen to
introduce legislation in relation to social partnership, fair work and socially responsible public
procurement as opposed to following a non-statutory approach. In response, the Deputy
Minister said:
“Many existing social partnership arrangements in Wales have developed
voluntarily and organically. They are not currently underpinned by a
common framework and are not co-ordinated with a view to achieving
maximum impact. …
In the absence of legislation, the existing informal and ad-hoc social
partnership arrangements could be expected to continue. The Welsh
Government believes, however, that there are limitations on how effectively
improvements in public service delivery and well-being can be coordinated
unless the social partnership approach has a statutory underpinning. This
legislation will promote greater consistency of approach and strengthen the
effectiveness of social partnership arrangements in Wales with a very clear
purpose in mind.
Several reviews of procurement by public bodies in recent years have
commented on the lack of consistency with which well-being outcomes are
pursued. Whilst there are many examples of good practice based on existing
guidance, legislation, along with a system of oversight and accountability, will
ensure that good practice is more widespread.”17
Interaction with the UK Government’s Procurement Bill
20. In August 2021, the Minister for Finance and Local Government announced that the Welsh
Government had accepted an offer from the UK Government to “use UK Government legislation
as we leave the EU to reform the basic processes underpinning procurement”. The Minister also
stated that the Welsh Government had sought “very clear safeguards” that doing so would not
fetter its ability to achieve the policy outcomes of the Bill.18
17 Welsh Government, Letter from the Deputy Minister for Social Partnership, 14 October 2022, response to
question 4 18 Welsh Government, Written Statement: The Way Forward for Procurement Reform in Wales, 18 August 2021
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21. The UK Government’s Procurement Bill was subsequently introduced into the UK
Parliament on 11 May 2022.19 The Welsh Government tabled legislative consent memoranda in
respect of the Bill on 9 June 202220 and 11 July 2022,21 which were referred to us and the Public
Accounts and Public Administration Committee for scrutiny.22
22. The Deputy Minister set out the interaction between both Bills as follows:
“… whilst the UK Government proposals centre on procurement processes,
both Bills share the high level aims of reducing the workload associated with
procurement, increasing transparency and strengthening accountability.
As well as a need to ensure consistent terminology in the two Bills, the main
areas of interaction between them are in:
▪ the overlap between the Wales Procurement Policy Statement that is
referenced in the UK Bill and the well-being goals referenced in this Bill;
▪ the mechanism for tracking Key Performance indicators in the UK Bill
and the annual reporting process in this Bill; and
▪ the oversight arrangements required for the UK Bill and the SPC’s
procurement subcommittee.”23
23. As part of our scrutiny of the Welsh Government’s Legislative Consent Memorandum on
the Procurement Bill, we asked the Minister for Finance and Local Government what
consideration had the Welsh Government given to using the time it had identified for the Social
Partnership and Public Procurement (Wales) Bill to bring forward a wider procurement Bill that
covered the scope of both it and the UK Government’s Procurement Bill. In response the
Minister said:
“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
19 UK Parliament, Procurement Bill [HL] 20 Welsh Government, Legislative Consent Memorandum: Procurement Bill, 9 June 2022 21 Welsh Government, Supplementary Legislative Consent Memorandum (Memorandum No. 2): Procurement Bill, 9
June 2022 22 See the webpage: Legislative Consent: Procurement Bill 23 Welsh Government, Letter from the Deputy Minister for Social Partnership, 14 October 2022, response to
question 10
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the SPPP Bill will focus on ensuring socially responsible outcomes are
achieved from our procurement.”24
24. We therefore asked the Deputy Minister to explain why changing the scope of the Social
Partnership and Public Procurement (Wales) Bill to include procurement processes would cause
an issue, particularly if the Bill mirrored what the UK Government proposed and led to more
accessible bilingual legislation. In response, the Deputy Minister said:
“Welsh Ministers considered that both Welsh contracting authorities and
suppliers would have been likely to suffer increased transactional and bidding
costs had a single Bill been pursued that would inevitably have resulted in
divergence between Wales and the rest of the UK. …
If Welsh Ministers had made the decision to legislate independently of UK
Government, given the complexity and need for alignment the Welsh
legislation would have been implemented later. …
Welsh language standards will continue, as now, to apply to procurement
processes and systems in Wales, ensuring that procurement can be carried
out through the medium of Welsh.”25
25. We also asked the Deputy Minister if the Welsh Government had considered introducing a
separate procurement Bill which mirrored the provisions in the UK Government’s Procurement
Bill, subject to scrutiny by Members of the Senedd, which would sit alongside the Social
Partnership and Procurement Bill. In response the Deputy Minister told us that “all options were
considered carefully”, and that:
“It is also important to note that the UK Bill is undergoing scrutiny by
Members of the Senedd through the Legislative Consent process and this will
continue with the development of secondary legislation in Wales.”26
26. In addition, in light of the fact that the UK Government’s Procurement Bill provides the
Welsh Ministers with powers to make subordinate legislation, we asked the Deputy Minister why
it is possible for consistency to be achieved through separate secondary legislation being
24 Welsh Government, Letter from the Minister for Finance and Local Government, 1 September 2022, response to
question 1 25 Welsh Government, Letter from the Deputy Minister for Social Partnership, 14 October 2022, response to
question 6 26 Welsh Government, Letter from the Deputy Minister for Social Partnership, 14 October 2022, response to
question 8
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implemented in Wales and England, but not by separate primary legislation. The Deputy
Minister told us in response:
“When taking forward secondary legislation, officials will continue to work
closely with UKG officials to ensure consistency which is essential for both
buyers and suppliers in the immediate term …
However, equivalent powers will allow the Welsh Ministers to make changes if
Welsh policy changes in the future. Such changes would not represent a sea-
change as they’re likely to be done on one or two aspects rather than in all
areas where there are equivalent powers. They would also be subject to the
Common Framework, as development of policies and legislation are subject
to discussion by the Common Framework for public procurement working
group to manage potential divergence issues.”27
27. The Welsh Government has set out its aim to produce good law which is “necessary, clear,
coherent, effective and accessible”.28 The Legislation (Wales) Act 2019 also places a duty on the
Counsel General to keep under review the accessibility of Welsh law, including the extent it is
available in Welsh and English, and the extent it is clearly and logically organised (both within
and between enactments).29
28. If the Bill and the UK Government’s Procurement Bill are passed, procurement law that is
applicable to Welsh citizens will be contained within both Senedd and UK Parliament Acts. With
this in mind, we asked the Deputy Minister to explain why the Welsh Government had not
adhered to its own principles of clear and accessible legislation by following this approach to
legislating on procurement law. In response, the Deputy Minister told us:
“Procurement practitioners in Wales are already used to working to more
than one set of legislation ... for example they already need to consider the
requirements under the Well-being of Future Generations (Wales) Act 2015.
The potential negative impact on buyers and suppliers of divergent
procurement process legislation on procurement would have been significant.
This additional complexity would also be experienced by Welsh suppliers
bidding for public contracts outside Wales. As the two Bills are moving
forward on similar timescales this will allow the guidance, training and
27 Welsh Government, Letter from the Deputy Minister for Social Partnership, 14 October 2022, response to
question 9 28 Welsh Government, Legislation handbook on Assembly bills, May 2019, paragraph 1.8 29 Legislation (Wales) Act 2019, section 1
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support provided to buyers and suppliers to be developed so that it is clear
and accessible. My officials are working closely with those in the Welsh
Government’s procurement reform team, who are working with counterparts
in the UK Government to ensure consistency and cohesion between the two
Bills.”30
Balance between what is on the face of the Bill and what is left to
subordinate legislation
29. The Bill contains 49 sections and two Schedules, and is divided into four Parts. The Bill also
contains:
▪ five powers for the Welsh Ministers to make regulations,
▪ one power for the Welsh Ministers to issue a code, and
▪ two powers for the Welsh Ministers to issue directions.
30. An overview of the Bill’s powers to make subordinate legislation is included at chapter 5 of
the EM. As previously mentioned, the Welsh Government has also provided a statement of
policy intent for subordinate legislation to be made under the Bill.
31. We asked the Deputy Minister if she was satisfied that the Bill strikes the right balance of
providing detail on the face of the Bill against providing regulation-making powers to the Welsh
Ministers. In response, she said:
“The only subordinate legislation-making powers in this Bill are those in part
3, which deals with socially responsible public procurement. They have been
included for what are often referred to as ‘future-proofing’ reasons: that is, to
enable us to make any operational changes which may be necessary in the
future: for example, to amend the list of contracting authorities subject to the
provisions of the legislation, or to tweak the list of matters those bodies are
required to consider when producing their procurement strategies, which are
likely to change over time as strategic priorities evolve.”31
30 Welsh Government, Letter from the Deputy Minister for Social Partnership, 14 October 2022, response to
question 11 31 Welsh Government, Letter from the Deputy Minister for Social Partnership, 14 October 2022, response to
question 14
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Our view
32. We welcome the Welsh Government’s decision to consult on a draft version of the Bill
ahead of its introduction. We agree with the views of our predecessor committees32 that this is
good practice and, given the potential benefits to the quality of law produced, there should be
a presumption in favour of draft bills being published and consulted upon.
33. We acknowledge the Deputy Minister’s explanation as to why she considered it
appropriate to introduce legislation rather than follow a non-statutory approach.
34. We also acknowledge the Deputy Minister’s evidence in relation to the subordinate
legislation which may made under the Bill and the information provided in the statement of
policy intent for subordinate legislation to be made under the Bill. While we do not believe that
“future-proofing” should be used as a justification for including powers to make subordinate
legislation within primary legislation, we acknowledge the examples the Deputy Minister has
provided of how the powers within this Bill may be used. We are therefore content with the
balance between what is on the face of the Bill and what is left to subordinate legislation.
35. We do not agree with the Deputy Minister’s view that the introduction of a wider
procurement Bill that would include the scope of both the UK Government’s Procurement Bill
and the Social Partnership and Public Procurement (Wales) Bill would “inevitably have resulted in
divergence” between Wales and the rest of the UK. Indeed, divergence already exists between
Scotland and the rest of the UK by virtue of the Procurement Reform (Scotland) Act 2014.33 We
are of the view that the Welsh Government could have introduced legislation which would
ensure minimal divergence in the areas of procurement processes, while enabling as much
divergence as necessary in the area of the procurement outcomes, and the reflection of Welsh
Government values in those.
36. We also note that there already appear to be delays to the implementation of the
Procurement Bill,34 which call into question the Deputy Minister’s suggestion that including
provisions within the Social Partnership and Public Procurement (Wales) Bill would have led to
the Welsh Government implementing Welsh legislation later.
32 See for example, Constitutional and Legislative Affairs Committee (Fourth Assembly), Making Laws in Wales,
October 2015, Recommendation 3; Constitutional and Legislative Affairs Committee (Fifth Senedd), Report on the
Children (Abolition of Defence of Reasonable Punishment) (Wales) Bill, August 2019 paragraph 62 33 The Scottish Government opted not to join the UK Government’s Procurement Bill, as stated in the UK
Government’s policy paper on the Bill (published 16 June 2022) 34 See: PAPA Committee, Legislative Consent Memorandum on the Procurement Bill: Evidence from the Welsh
Local Government Association, page 18; PAPA Committee, 21 September 2022, RoP [115]
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37. We would also like to respectfully assert that, while the UK Government’s Procurement Bill
is “undergoing scrutiny by Members of the Senedd through the Legislative Consent process”,
such scrutiny is far removed from the legislative scrutiny of a Bill introduced into the Senedd.
Consideration of such a Bill includes wide consultation on its general principles followed by line-
by-line scrutiny in a committee and on the floor of the Senedd; elements which are completely
absent from the legislative consent process.
38. We note the Deputy Minister’s comment that the Welsh language standards35 will continue
to apply to procurement processes and systems in Wales, ensuring that procurement can be
carried out through the medium of Welsh. However, we believe that as the primary legislation
which underpins all such procurement processes and systems is the authoritative means to
understanding those, the fact that this legislation will only be available through the medium of
English within the UK Government’s Procurement Bill will not contribute to the accessibility of
procurement processes and systems to Welsh speakers.
39. Furthermore, we would like to highlight that it will be the UK Government which will deliver
the required training and guidance on the new procurement processes and systems provided
by the Procurement Bill, as the Minister for Finance and Local Government has confirmed.36 At
the time of writing, the UK Government is not subject to any Welsh language standards; it
therefore has no enforceable duty to provide such guidance and training through the medium
of Welsh.
40. We make some of these points in our report on the Welsh Government’s Legislative
Consent Memoranda on the Procurement Bill, and would like to take this opportunity to repeat
the conclusion we arrived at within that report.
Conclusion 1. Where an option exists for the Welsh Government to introduce provisions
within a forthcoming timetabled Senedd Bill we believe there should be a very strong
presumption in favour of that option, to enable extensive scrutiny by the people of Wales and
their elected Members of the Senedd, and to enable accessible legislation in both Welsh and
English.
35 Welsh Language (Wales) Measure 2011, Part 4; List of Welsh language standards regulations (legislation.gov.uk) 36 PAPA Committee, 21 September 2022, RoP [46]
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4. Specific observations on particular sections and
powers to make subordinate legislation
Section 17 (Social partnership duty: Welsh Ministers)
41. Section 17 of the Bill provides that the Welsh Ministers must consult with the Social
Partnership Council for Wales (to be created by section 1 of the Bill) “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 (Wales) Act 2015.
42. In written evidence to the Equality and Social Justice Committee, Audit Wales said in
respect of section 17:
“…we wonder how the meaning of “decisions of a strategic nature” (about the
reasonable steps to take under section 3(2)(b) of the WFGA 2015 to meet
Welsh Ministers’ wellbeing objectives), can be appropriately clarified. It does
not seem entirely appropriate for the Welsh Ministers to be providing
guidance to themselves on the interpretation of this phrase. Clarification of
“strategic nature” on the face of the Bill may be more appropriate.”37
43. We asked the Deputy Minister if she had considered clarifying the phrase “decisions of a
strategic nature” on the face of the Bill. In response, she said:
“Recently, through the enactment of the socio-economic duty we have
provided statutory guidance on what is meant by ‘decisions of a strategic
nature’ as set out in section 1 of the Equality Act 2010. This guidance provides
examples of strategic decisions that public bodies may make, including
medium and long-term plans such as corporate plans, and of course the
setting of objectives.
In general, strategic decisions will be those which affect how the public body
fulfils its intended statutory purpose over a significant period of time and will
not include routine ‘day-to-day’ decisions.”38
37 Equality and Social Justice Committee, SPPP Bill 29 – Audit Wales, paragraph 6 38 Welsh Government, Letter from the Deputy Minister for Social Partnership, 14 October 2022, response to
question 12
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Our view
44. We acknowledge the Deputy Minister’s statement that the Welsh Government has
published statutory guidance on the meaning of the phrase “decisions of a strategic nature”,
and examples of such decisions.39
45. However, for reasons of accessibility, we believe that the interpretation section of the Bill
should include a signpost to the definition contained within the statutory guidance.
Recommendation 1. The Deputy Minister should table an amendment to the Bill to include,
within its interpretation section, a signpost to the definition of “decisions of a strategic nature”
within the statutory guidance on the socio-economic duty made under the Well-being of Future
Generation (Wales) Act 2015.
Section 20 (Fair work)
46. Section 20 of the Bill amends section 4 of the Well-being of Future Generations (Wales) Act
2015 by substituting “fair work” for “decent work” within the existing “A prosperous Wales” goal.
47. According to the EM, this provision replaces a “place holder” for fair work provisions which
were included in the draft Bill.40 The consultation document which accompanied the draft Bill
explained the rationale for the inclusion of a place holder:
“The Welsh Government wishes to see Wales become a ‘fair work nation’. We
endorse the widely accepted definition of fair work set out in the report of the
Fair Work Commission: ‘Fair work is where workers are fairly rewarded, heard
and represented, secure and able to progress in a healthy, inclusive
environment where rights are respected.’
The Fair Work Commission’s report, Fair Work Wales, recognised that there
are limits on what the Welsh Government can do legislatively within the
current devolution settlement as set out in the Government of Wales Act. Fair
Work Wales also recommended that the Welsh Government explores and
takes all opportunities within its legislative competence to take forward fair
work.
Therefore, in keeping with the recommendations, we are seeking to explore
through this draft Bill how we can take forward fair work, within our
39 Welsh Government, The Socio-economic Duty: statutory guidance, March 2021 40 Explanatory Memorandum, paragraph 150
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legislative competence, whilst retaining Government’s ambition to make
Wales a ‘fair work nation’.”41
48. The EM states that the consultation exercise found there was “no clear consensus on the
definition of fair work that should be enshrined in law”, but there was “strong support for full
adoption of the definition of fair work given in the Fair Work Commission’s report from some
respondents.”42
49. In written evidence to the Equality and Social Justice Committee, Professor Alan Felstead
from Cardiff University noted that:
“The accompanying Explanatory Memorandum attached to the tabled Bill
suggests that the integration fair work into the Well-being of Future
Generations Act 2015 … 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. No definition of fair work is provided in
either the tabled Bill or the Explanatory Memorandum.”43
50. There were also provisions within the draft Bill which placed a duty on the Welsh Ministers
to set fair work objectives, to take all reasonable steps to meet those objectives, and to report
annually on their progress in that regard.44
51. We asked the Deputy Minister why these provisions had not been included in the Bill as
introduced, and whether they had been removed due to the limits on the Senedd’s legislative
competence. In response, the Deputy Minister told us:
“We are on record as having accepted the Fair Work Commission’s definition
and characteristics of fair work in our policy work. We stand by that. But this
does not mean we can legislate for that definition. …
Drawing on the Well-being of Future Generations (Wales) Act 2015 (“WFG
Act”) is consistent with the overall approach across the Bill, where other
provisions are linked to the sustainable development principle set out in that
Act. Our approach also reflects the spirit of the Fair Work Commission
recommendation to incorporate fair work within the WFG Act.
41 Welsh Government, Consultation document: Draft Social Partnership and Public Procurement (Wales) Bill,
paragraphs 66-69 42 EM, paragraph 148 43 Equality and Social Justice Committee, SPPP Bill 02 – Professor Alan Felstead, Cardiff University, page 4 44 Welsh Government, Consultation document: Draft Social Partnership and Public Procurement (Wales) Bill,
paragraph 63
Report on the Social Partnership and Public Procurement (Wales) Bill
20
This approach captures public bodies and so has a greater reach and could
have greater effect than a standalone Fair Work Duty only on Welsh
Ministers as previously proposed. I also think it important to avoid the
continuation of the use of different terms that can be interpreted to cover
broadly similar or overlapping activity i.e., decent work and fair work. We
know from our engagement that consistency in terminology will be
welcomed. All of this could help contribute to a more effective approach to
the consideration of fair work in the pursuit of well-being.”45
Our view
52. We acknowledge the Deputy Minister’s explanation that, because of restrictions on the
Senedd’s legislative competence, the Welsh Government was not able to provide a definition of
“fair work” within the Bill.
53. We also acknowledge the Deputy Minister’s statement that the approach taken within the
Bill “has a greater reach and could have greater effect” than a standalone fair work duty placed
on the Welsh Ministers only, as proposed within the draft Bill.
54. We however note Professor Alan Felstead’s comments in relation to the absence of a
definition of “fair work”, either on the face of the Bill or within the EM. We believe that the
explanation within the EM that “’fair work’ takes its ordinary meaning” is insufficient and could
be a source of confusion.
Recommendation 2. The Fair Work Commission’s definition of “fair work”, with appropriate
commentary, should be included within non-statutory guidance for stakeholders and bodies
subject to the duties under the Well-being of Future Generation (Wales) Act 2015.
Section 22 (Contracting authorities); section 24 (Socially responsible
procurement duty); section 25 (Socially responsible procurement duty:
major construction contracts); section 39 (Annual socially responsible
procurement reports)
55. Section 22(4) of the Bill includes a power for the Welsh Ministers to make regulations,
subject to the affirmative procedure, to amend section 22 and Schedule 1 which lists
“contracting authorities”. This is therefore a Henry VIII power. According to the EM, this power
45 Welsh Government, Letter from the Deputy Minister for Social Partnership, 14 October 2022, response to
question 3
Report on the Social Partnership and Public Procurement (Wales) Bill
21
will allow the Welsh Ministers “to list or delist contracting authorities, who are subject to the
socially responsible procurement duty, in future.”46
56. Section 24(8) includes a power for the Welsh Ministers to make regulations, subject to the
affirmative procedure, to prescribe contracts which are “prescribed contracts” for the purposes
of Part 3 of the Act. According to the EM, this power will enable the Welsh Ministers to “respond
in light of the need to impose duties in respect of certain contracts in future.”47
57. Section 25(3) includes a power for the Welsh Ministers to make regulations, subject to the
affirmative procedure, to amend section 25 (which defines major construction contracts). Again,
this is a Henry VIII power. According to the EM, this power will enable the Welsh Ministers “to
respond to future changes.”48
58. We note that the Minister explains that the reason for the use of the affirmative procedure
for regulation-making powers under sections 22(4), 24(8) and 25(3) is because the regulations
will amend primary legislation.49
59. Section 39(2) includes a power for the Welsh Ministers to make regulations, subject to the
negative procedure, to prescribe other information which socially responsible procurement
reports should contain.
Our view
60. We are content with the application of the affirmative procedure to the Henry VIII powers
contained within sections 22(4), 24(8) and 25(3), and the negative procedure to the power
within section 39(2) of the Bill.
Section 32 (Public services outsourcing and workforce code)
61. 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 provide 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 will not be subject to any scrutiny
procedure in the Senedd.
46 EM, page 44 47 EM, page 44 48 EM, page 44 49 EM, page 44
Report on the Social Partnership and Public Procurement (Wales) Bill
22
62. The justification provided in the EM for the absence of a procedure to the power under
section 32 is because the code of practice covers “operational matters connected with
outsourcing services contracts”.50
63. We asked the Deputy Minister for further detail as to why no procedure has been applied
to this power, why there is no duty to consult on the code, and whether the Welsh Government
would publish a draft code of practice ahead of the Bill’s amending stages. In response, she
said:
“All statutory guidance will be developed in social partnership and will include
open consultation with stakeholders. This process cannot begin formally until
such time as the Bill receives Royal Assent, although preliminary work will be
taking place beforehand. Given the quantity of statutory guidance that will be
needed to support the procurement duties it would be difficult to prepare a
draft Code of Practice in time for the amending stages of the Bill.”51
Our view
64. We note the Deputy Minister’s comments in relation to section 32 of the Bill. However, it
continues to be unclear to us why no procedure has been applied to the Welsh Ministers’ power
to issue the public services outsourcing and workforce code. We are of the view that the code
will play a central role within the aims of the Bill in ensuring socially responsible public
procurement, and as such it should be subject to the negative procedure at the very least.
Recommendation 3. The Deputy Minister should table an amendment to the Bill to apply the
negative procedure to the power to issue the public services outsourcing and workforce code
within section 32 of the Bill, and any future revisions to it.
65. We note the Deputy Minister’s comment that all statutory guidance will be developed in
partnership and will include open consultation with stakeholders. Since the Deputy Minister has
committed to consult on all statutory guidance in this way, we see no reason why a duty to
consult on the code, and future revisions to it, cannot therefore be included on the face of the
Bill.
50 EM, page 46 51 Welsh Government, Letter from the Deputy Minister for Social Partnership, 14 October 2022, response to
question 15
Report on the Social Partnership and Public Procurement (Wales) Bill
23
Recommendation 4. The Deputy Minister should table an amendment to the Bill to include a
duty to consult on the public services outsourcing and workforce code within section 32, and
any future revisions to the code.
66. Furthermore, since all statutory guidance under the Bill will be developed in partnership
and subject to consultation, we also believe it would be appropriate to include on the face of
the Bill a duty to consult on guidance issued under section 43.
Recommendation 5. The Deputy Minister should table an amendment to the Bill to include a
duty to consult on guidance issued under section 43, and any future revisions to such guidance.
67. We acknowledge the Deputy Minister’s statement that it would be “difficult” to prepare a
draft code in time for the amending stages of the Bill. As previously stated, we are of the view
the code has a central role within the aims of the Bill, and for that reason we believe that
Members of the Senedd ought to have an opportunity to scrutinise a draft version of it as part
of their scrutiny of the Bill.
Recommendation 6. The Deputy Minister should publish a draft version of the public services
outsourcing and workforce code ahead of the start of Stage 3 of the Bill.
Section 38 (Procurement strategy)
68. Section 38(3) includes a power for the Welsh Ministers to make regulations, subject to the
negative procedure, to amend section 38(2) 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 invoices should be paid).
69. The Deputy Minister justifies the application of the negative procedure to this Henry VIII
power to amend primary legislation by saying:
“Whilst regulations will amend primary legislation, the specific nature of
procurement strategies is an operational matter for determination by the
Welsh Ministers.”52
52 EM, page 44
Report on the Social Partnership and Public Procurement (Wales) Bill
24
70. We asked the Deputy Minister why she had decided to apply the negative procedure to
this Henry VIII power, instead of the affirmative procedure as the Welsh Government drafting
guidelines would ordinarily recommend.53 In response, she said:
“In keeping with the convention agreed between the Senedd and Counsel
General, we have ensured that those subordinate legislation-making powers
which allow for provisions in the Bill itself to be amended are all subject to the
affirmative procedure. The exception being regulations under section 38
which are operational in nature dealing with matters which procurement
strategies must address. Those that deal with operational or technical
matters, which do not alter the purpose or effect of the primary legislation
itself in any way, are those we have concluded should be made under the
negative procedure.”54
Our view
71. We believe that the power within section 38(3)(a) of the Bill is a wide, unlimited Henry VIII
power to amend section 38(2) to “specify other matters which procurement strategies must
address”. We therefore do not agree with the Deputy Minister’s view that the power deals “with
operational or technical matters”, and consequently do not believe that the negative procedure
is appropriate for this power. We also do not believe that the power within section 38(3)(b), to
reduce the number of days provided in a procurement strategy by when an invoice may be
paid, is appropriate to be exercised under the negative procedure.
Recommendation 7. The Deputy Minister should table an amendment to the Bill to apply the
affirmative procedure to the power within section 38(3)(a).
Recommendation 8. The Deputy Minister should table an amendment to the Bill to apply the
affirmative procedure to the power within section 38(3)(b).
72. We also note the Deputy Minister’s reference to the “convention agreed between the
Senedd and Counsel General” in respect of subordinate legislation-making powers. It is unclear
to us which convention this is.
Recommendation 9. The Deputy Minister should clarify which convention she is referring to
in her letter of 15 October 2022 to the Committee.
53 Welsh Government, Guidelines on subordinate legislation: draft affirmative or negative assembly procedure, 11
April 2012 54 Welsh Government, Letter from the Deputy Minister for Social Partnership, 14 October 2022, response to
question 16
Report on the Social Partnership and Public Procurement (Wales) Bill
25
Section 48 (Coming into force)
73. Section 48(1) of the Bill states that, if passed and enacted, the Bill would come into force
“on such day as the Welsh Ministers may by order appoint”.
74. We asked the Deputy Minister when she intends for the Bill to come into force, should it
be passed by the Senedd. In response, she said that it was the Welsh Government’s intention for
it to come into force “as soon as is reasonably practicable”, and as follows:
“…the four component parts of the Bill place a range of duties and
requirements on various bodies – including Welsh Ministers. As such it will be
necessary to sequence commencement of certain sections of the Act. For
example, in relation to the Social Partnership Council, we would be looking to
commence the appointment provisions by autumn 2023, with a view to those
appointments having been made, and the Council able to meet, before the
end of 2023.
In terms of the fair work and social partnership duties, we intend to publish
initial advice during 2023 so that public bodies, including any additional
bodies which may be brought within the scope of the WFG Act are able to
plan appropriately for the introduction of the new duties and understand
what may be expected of them. Statutory guidance issued under the relevant
provisions of the Bill will need to be agreed by the Social Partnership Council
and will be published as soon as possible after the Council is established in
order that public bodies are able to set or review their well-being objectives in
2024 having given regard to that guidance. More broadly, we will also be
looking to align the objective-setting and reporting cycles in this legislation as
far as possible with those that our partners already work to under the WFG
Act.
Turning to socially-responsible procurement, whilst the Social Partnership
Council will be responsible for establishing the public procurement sub group
itself, work is already under way to develop the necessary guidance, training
and monitoring arrangements which will be required to support these
provisions. This work is being and will continue to be undertaken in
consultation with social partners and the public procurement community in
Wales. We will also look to coordinate the changes resulting from the
implementation of the UK Procurement Bill in Wales with the provisions in
Report on the Social Partnership and Public Procurement (Wales) Bill
26
our Bill are implemented in a coherent way so as to avoid overburdening
service providers with uncoordinated waves of statutory changes.”55
Our view
75. We acknowledge the Deputy Minister’s comprehensive explanation of when she expects
the Bill’s provisions to be implemented.
55 Welsh Government, Letter from the Deputy Minister for Social Partnership, 14 October 2022, response to
question 17
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