Procurement and equality: the current context
Public authorities have always had to comply with anti-discrimination law as employers and service providers. Until relatively recently the emphasis has been on case-by-case compliance with enforcement largely in the hands of private individuals who have been adversely affected by discrimination.
In the last 10 years or so an awareness has grown that this legal model can not tackle institutional discrimination (whether intentional or unintentional) on its own. This prompted the Government to impose three separate equality duties on public authorities (including most higher education institutions) which are in addition to their obligations under the general law. These oblige them to have 'due regard' to the need to promote equality of opportunity in relation to race gender and disability when they develop their policies and carry out their functions and are supplemented by regulations imposing specific obligations to help them implement these general duties. Cases are now beginning to emerge where the courts have ruled that institutions have been in breach of these duties.
Procurement is one obvious example of a public sector activity where these relatively new duties are engaged. The last Labour Government believed that the potential for using it to promote equality of opportunity had not been fully realised. In Make Equality Count (published in 2008) the OGC gives purchasing officers guidance on how to address these duties. It is not simply a question of imposing contractual obligations on suppliers to comply with discrimination law but of making sure that diversity issues are considered before the tender specification is designed.
The Equality Act and procurement
One of the key aims of the Equality Act 2010 was to introduce a new unified public sector duty to promote equality of opportunity which would cover the six main discrimination strands. The new unified duty is due to come into force in April 2011. The importance of procurement is recognised in section 155 of the Act which makes it clear that the regulations supplementing this general duty may impose duties on public authorities in connection with their procurement functions.
The current thinking on this topic for English authorities is set out in a consultation document published in August 2010. Its proposals diverge considerably from the proposals for the new public sector duty published by the outgoing Labour Government. This earlier document included a section on procurement and proposed three specific duties for public authorities undertaking procurement activities.
The Coalition Government does not currently plan to include any specific duties for procurement for English authorities. While agreeing with the previous Government that procurement has an important role to play in helping address inequalities it believes that this will be taken care of by the broader generic duties it plans to impose including the obligation to publish equality objectives and impact assessments of 'policies and practices'. Although the reference to policies and practices in the draft regulations attached to the consultation document could be clearer it is likely to embrace a requirement to assess procurement activities. Some respondents to the consultation notably the Equality Challenge Unit have argued that procurement should be addressed specifically as planned by the outgoing Labour Government.
The Welsh Assembly Government in its consultation on the performance of the public sector equality duty in Wales (published on 21 September 2010) has taken a different approach for Welsh authorities. It has proposed specific procurement duties which will require contracting authorities to have due regard to performance of their general equality duty when setting contract conditions and award criteria.
All those with an interest in procurement will need to follow the progress of these consultations closely and assess the regulations which will follow once they have been concluded.