Draft Public Procurement (Amendment etc.) (EU Exit) Regulations 2020

Julia Lopez Excerpts

Wednesday 11th November 2020 General Committees

[The Chair]

I call the Minister to move the motion in what I believe is her debut Delegated Legislation Committee performance.

[The Parliamentary Secretary, Cabinet Office (Julia Lopez)]

I beg to move,

That the Committee has considered the draft Public Procurement (Amendment etc.) (EU Exit) Regulations 2020.

It is an honour to make my first statutory instrument under your chairmanship, Mr Hollobone. It ensures that the UK meets the requirements of the withdrawal agreement and the Northern Ireland protocol, and replaces earlier statutory instruments that did not reflect those circumstances.

The instrument is essential to ensure that there is legal clarity for public procurement at the end of the transition period, and certainty while wider procurement reforms are considered and introduced in domestic legislation. The majority of it is unchanged from the Public Procurement (Amendment etc.) (EU Exit) Regulations 2019, which were debated in both Houses and made on 13 March 2019, and which addressed deficiencies in a no-deal scenario.

To provide legal clarity in public procurement, the instrument consolidates the 2019 regulations and incorporates changes in new provisions where relevant. As in the 2019 regulations, the amendments made by the instrument do not amount to a material change in procurement policy. They will ensure that the UK’s procurement system continues to function as intended at the end of the transition period and will grant certainty to UK contracting entities that they can continue to procure goods and services without substantial changes in the process. In that way, the Government are ensuring that those entities can continue to obtain value for money for UK taxpayers.

Principally, the instrument makes amendments to the three sets of regulations that implement EU directives on awarding contracts and concessions in the public and utilities sectors outside the field of defence and security. It seeks to provide a level of continuity for procurement procedures that began before the end of the transition period. Procurements that fall within that category, including orders from ongoing contracts such as framework agreements, will continue in substance to follow the unamended procurement regulations.

The instrument makes various amendments to the procurement regulations, to reflect recent amendments made to other domestic and retained direct EU legislation, for example in relation to the acceptable formats for advanced electronic signatures and the applicable rules for determining the origin of products. To enable the procurement regulations to reflect technological developments, and full and ongoing interoperability in electronic invoicing, a power has been conferred on the Minister for the Cabinet Office to make regulations to substitute a different e-invoicing standard or a different reference to the same standard, or to make changes to specific syntaxes for e-invoices.

The instruments disapplies, for the whole of the UK, the rights derived from article 18 of the treaty on the functioning of the European Union and parallel provisions in other agreements. Retaining those rights would leave a lack of clarity as to whether EU parties were in the scope of article 18 of the TFEU and therefore had additional rights in the UK compared with non-EU countries—for example, suppliers from the EU may be provided with additional rights compared with third-country suppliers.

The UK has been invited to accede to the Agreement on Government Procurement in its own right. The instrument contains contingency arrangements in case we are unable to legislate for GPA accession due to a delay in the Trade Bill. It mitigates the risk of a short gap in GPA membership by facilitating continued market access.

I have picked out some of the key features of the draft statutory instrument, but it does a lot of technical work. The particularly full explanatory memorandum to the instrument contains a lot of detail on the technical matters that I very much do not wish to detain the Committee with.

Left unamended, the existing regulations would not work as intended and the EU exit regulations made last year in the context of a no-deal scenario would come into force. That would amount to a breach of our international obligations and would cause confusion and uncertainty among procurers and suppliers, which would hamper the public sector’s ability to obtain value for money from procurement. I commend the regulations to the Committee.

[The Chair]

Hon. Members will be pleased to know that the debate can last until 4 o’clock.

--- Later in debate ---

[Julia Lopez]

I appreciate the hon. Member’s scrutiny. It is very important that we build public confidence in everything that we are trying to do on procurement. Ultimately, this is a narrow piece of legislation. We need to ensure that the public procurement regulatory regime will function after the end of the transition period, and that we have continuity and legal certainty for procurers and suppliers. There are many moving parts to the negotiations, and this is a belt and braces approach to ensure that all the legal details are tied up in time for the end of the transition period.

We are doing such things as transferring powers from the EU to the Cabinet Office, which will obviously happen once we are no longer in the transition period. The hon. Member asked about our e-tender service. I have spoken to officials about it, and I am assured that the new system, moving away from the EU’s notification system, will be up and running by 11 o’clock on 31 December. He rightly touched on our wider ambitions for public procurement and the Green Paper, which is currently in draft form. Ministers are starting to look through it, ensuring that it fits with our own ambitions for the work that we want to do on this area, particularly on social value.

The hon. Member talked about the need to simplify procedures to ensure that local authorities and officials understand the rules. That means not only simplifying everything that we are doing and helping businesses to access exciting public procurement opportunities, but ensuring that we have training in place for officials, both in central Government agencies and in local authorities, to understand the new rules and articulate them to businesses so that the system functions as a whole.

The hon. Member talked about procurement during the pandemic. I want to ensure that we retain public confidence in everything that we do on contracts that have been let. We are working with the National Audit Office on those issues. I am sure that we will have further opportunities to debate them in the House, including during Cabinet Office oral questions tomorrow. Ultimately, this is a very narrow amendment that tries to ensure that we have covered all bases when it comes to leaving the transition period, and I commend it to the Committee.

Question put and agreed to.