© Morten Morland / The Times.
The post-Brexit de/re/regulation of public procurement in the UK requires legislative reform to create the new overarching framework supporting the policy and regulatory changes described in the 2020-21 Transforming Public Procurement public consultation (see here and here).
However, finding Parliamentary time to take the process forward has proved difficult. A Procurement Bill was initially announced in the 2021 Queen’s Speech, but was not introduced in the last Parliamentary session. This delayed the timeline for the entry into force of the new procurement regime, which the Government’s response to the public consultation considered ‘unlikely to come into force until 2023 at the earliest’.
In April 2022, the Government confirmed that it would be introducing the Procurement Bill for the coming session, and this was also considered a clear possibility in recent Parliamentary briefings and quasi-insider commentators.
Today’s 2022 Queen’s Speech has reiterated that ‘Public sector procurement will be simplified to provide new opportunities for small businesses’.
What does this mean for the timeline of UK procurement law reform?
Unfortunately, this is not entirely clear. Or, as you would expect from a lawyer, the answer is that it depends.
First, because a Bill being announced in the Queen’s Speech does not guarantee that it will be effectively introduced, as we saw in the 2021 session (although this may have had to do with the large volume of responses to the public consultation, which made the process more protracted and could have had a knock-on effect on the Cabinet Office team’s bandwidth to work on the Procurement Bill itself). The likelihood of the Bill being effectively introduced is hard to guess, as the 2022 Queen’s Speech also included proposed legislation to tackle quite a few urgent challenges with electoral tags clearly attached to them (eg cost of living crisis), as well as controversial constitutional reform bills that, by themselves, could take up most Parliamentary time—especially if there is extended ping-pong with the House of Lords, as one would hope.
Second, because the Procurement Bill has been announced as part of the ‘Brexit Package’ in the Queen’s Speech, together with the Brexit Freedoms Bill, as well as the reform of the Data Protection Bill, and the Financial Services Bill. It will be interesting to see if there is internal competition for Parliamentary time within this group of Brexit-related Bills. If that is the case, I would not be surprised if the Procurement Bill was put on the backburner again, especially if the Government is aware of the limited practical changes that a new Procurement Bill can deliver in terms of one of their main political promises linked to procurement: a (sort of ) Buy British procurement policy.
However, there are also indications that the procurement reform team within Cabinet Office is pushing hard for advances in procurement reform. On 29 April 2022, the UK Government published a new programme website where it states that ‘New legislation is introducing a reformed public procurement regime that will come into effect in 2023’ (emphasis added, and note the change of wording compared to ‘unlikely … until 2023 at the earliest’ above — unless there are different intended meanings between ‘entry into force’ and ‘entry into effect’ — one for legal drafting aficionados…). A few job ads linked to the rollout of the training programme supporting the transition to the new regime have also been published, so investment in this area seems to have started to materialise (could not find details, though).
If there is indeed a push, and given that the Government has committed to giving a minimum of 6 months’ notice before the new regime goes live, the Procurement Bill should receive Royal Assent by end of June 2023 at the latest, if the 2023 deadline is to be met (in extremis). Based on the outcome of the public consultation, the likely approach will be to have a minimalistic, bare bones legislative instrument twinned with voluminous guidance. Therefore, the Procurement Bill can be expected to be relatively short.
However, it will include some controversial issues and, as above, it will be competing for limited Parliamentary time — and perhaps appetite for and attention to highly technical legislation. If the Government wants to have the new system in place at the end of 2023 (or even 1 Jan 2024, or early April 2024 to match the fiscal year …), the Procurement Bill should be introduced sooner rather than later.
Therefore, we may be about to enter a rather intense 12-month period of discussion (and public scrutiny) of the more definite plans for UK public procurement law reform. Watch this space.