Procurement and the Equality Act

The Equality Act contains a specific measure on procurement, making provision: “to enable duties to be imposed in relation to the exercise of public procurement functions”.

The accompanying guide ‘Framework for a Fairer Future: The Equality Bill’, states the act: “makes it clear public bodies can use procurement to drive equality”. It also: “enables ministers to set out how public bodies should go about doing so".

Public procurement is already inherently linked to the three existing public equality duties. However, the new legislation creates a more explicit connection between procurement and the new Single Equality Duty.

Rationale

The act’s impact assessment explains the decision to include procurement was based on evidence. This showed that government intervention is necessary to ‘encourage’ and ‘enable’ public authorities to use their procurement activities to further equality objectives.

The act seeks to invoke a cultural shift in how public authorities pursue equality objectives through their procurement activities. It also notes that:

“a common approach to equality in public procurement could reduce burdens on business applying for public sector contracts” and “make it easier for small and medium-sized businesses to compete.”

Amendment to the Local Government Act 1988

Local authorities are explicitly permitted to take non-commercial matters into account during the procurement process, when they consider it is ‘necessary’ or ‘expedient’ to do so. This is in order to comply with the Single Equality Duty.

The new Equality Duty

The Act establishes a new Single Equality Duty on public authorities. This consolidates the three existing public duties on race, disability and gender. Additionally, it covers age, sexual orientation, religion or belief, pregnancy and maternity and gender reassignment.

The new duty, like the three duties before it, requires public authorities to ‘have due regard’ to:

• eliminate unlawful discrimination
• advance equality of opportunity
• foster good relations when exercising their functions.

The accompanying guide explains the duty will require public bodies: “to consider the needs of diverse groups in the community when designing and delivering public services". It also applies to private bodies exercising public functions.

Specific duties and procurement

Clause 147 gives ministers the power to make regulations imposing specific duties on certain public authorities to enable them to carry out the new Equality Duty more effectively. The Equality and Human Rights Commission (EHRC) must be consulted before these are imposed.

Clause 149 gives ministers a regulation making power to impose specific duties in relation to public procurement functions. These are defined as: “those activities that fall within the European law public procurement regime”. Ministers do not have to consult with the EHRC before imposing these procurement-specific duties.

The explanatory notes give an example of how the power may be used. A minister could, for example, impose a specific duty requiring certain public authorities to take into account national priorities set out in a public service agreement (PSA) when setting their equality objectives.

Crucially, the act also gives ministers the power to modify or remove any duties on procurement that have been imposed, including those by other ministers. There is no equivalent power under the general specific duties.

Next steps

The government has consulted on the specific duties including the specific measures on procurement. On procurement, the consultation paper proposed a set of specific duties which will help public bodies to use public procurement to contribute to the delivery of their equality objectives under the Equality Duty. These consist of requirements on contracting authorities to:

• include how they will ensure that equality factors are considered as part of their public procurement activities to help contribute to the delivery of those objectives, when setting out their equality objectives and the steps they intend to take to achieve them
• consider the use of equality-related award criteria where they relate to the subject matter of the contract and are proportionate
• consider incorporating equality-related contract conditions where they relate to the performance of the contract and are proportionate.

The government will publish a response to the consultation shortly.

Further information

LG Improvement and Development's general information on the Equality Act

The EHRC’s response to the Equality Act – on the EHRC’s website

The Equality Act – on the Government Equalities Office (GEO) website

Framework for a Fairer Future: The Equality Bill (PDF, 40 pages, 1MB large file) – on the GEO website

Page published June 2010.