Order, order!!

Public Sector Equality and Nondiscrimination Bill

A

BILL

TO

Bind council executives to the public sector equality duty and to require nondiscrimination in the offering of councils by public bodies.

BE IT ENACTED by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords, and Commons, in this present Parliament assembled, and by the authority of the same, as follows –

1. Public sector equality duty, application to executive actions of local authorities

(1) In section 149 of the Equality Act 2010 after subsection (9) insert—

(10) In this section only, “public authority” includes all acts of council executives even when enacting acts of the council body.

(2) Nothing in this Act shall affect the operation or enforcement of the Equality Act 2010, or legislation or duties so made under that Act.

2. Non discrimination in public sector procurement

(1) In offering contracts or making provisions about a contract tendering process public authorities have a duty to not discriminate against competitors or economic agents.

(2) The duty to non discrimination is not broken where a competitor or agent is discriminated agianst on the basis of a—

(a) required exclusion under section 3;

(b) legitimate discretionary exclusion under section 4; or

(c) where the defence and security exemption applies under section 5.

(3) A duty to non discrimination means to treat an economic agent or competitor differnetly than another economic actor than for reason of thier—

(a) age;

(b) disability;

(c) gender identity;

(d) marriage or civil partnership;

(e) pregnancy or maternity;

(f) race;

(g) religion or belief;

(h) sex;

(j) sexual orientation;

(k) country of origin;

(l) country of business activity; or

(m) country of manufacture.

Alone in making decisions about the procurement process, in designing the procurement process or in awarding the procurement other than required by a lawful enactment or regulation.

3. Grounds for required exclusion

(1) A public authority must exclude an economic agent or competitor from the contracting process if—

(a) the public authority is aware that an economic agent or competitor has been convicted of a schedule one offence;

(a) the public authority is aware that the economic agent or competitor is in breach of obligations established in a final judicial ruling relating to the payment of taxes or social security contributions;

(b) where the economic agent or competitor is bankrupt or in the process of undergoing bankruptcy

(2) The public authority has discretion to disapply a required exemption under (1)(b) if

(a) the amounts of unpaid funds are small; or

(b) where the economic agent or competitor was only informed of the exact amount due in the last three months before the deadline for the contract tendering closing.

4. Grounds for discretionary exclusion

(1) The public authority may at its discretion exclude economic agents or competitors where—

(a) they violated obligations to the authority made as part of entering the tendering process;

(b) there exists a conflict of interest within the meaning of this act that cannot be resolved other than by exclusion;

(c) they are guilty of grave professional misconduct that would make them unsuitable for the contract;

(d) to the public authority it appears have entered into an agreement that aims to distort free and fair competition;

(e) have failed to carry out a previous contract;

(f) the economic agent has attempted to or successfully obtained confidential information that would give it an advantage over competitors in the process; or

(g) they have negligently provided misleading information or deliberately mislead the authority about their fitness for the contract.

(2) Any economic agent that is excluded may apply for inclusion and provide evidence to demonstrate fitness to be considered.

(3) The burden of proof of a correctly excluded party to show fitness is on the party.

(4) The public authority may allow inclusion if and only if—

(a) the party has paid any amount due in respect of a criminal offence or civil liability owed; and

(b) has taken proportionate action to prevent professional failure, criminal conduct or breach of contract in future.

5. Defence and security exemption

Where the public authority is an armed service, the Ministry of Defence or an intelligence service within the meaning of the Intelligence Services Act 1994 and they are procuring any item or service which at any point is subject to confidentiality in whole or in part then they are exempt from the provisions of this act in respect to that contract tendering.

6. Artificial narrowing of competition

(1) A duty to non discrimination includes not taking steps to artifically narrow competition.

(2) In this act, competition is artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic agents or making it uncompetitive.

7. Remedy

(1) Where a court finds the actions of a public authority breach the duty to non discrimination, it may grant such remedy, or make such order to reopen a process with changes or under conditions, as the court considers just and appropriate.

(2) No award of damages is to be made unless, taking account of all the circumstances of the case, including—

(a) any other relief or remedy granted, or order made, in relation to the actions in question, and

(b) the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(3) In determining whether to award damages as part of a remedy and the amount of an award, the court must consider all relevant factors including

(a) the likelihood of success in a nondiscriminatory procurement process and the value of the contract,

(b) if there is an opportunity to reasonably reopen the procurement, and

(c) if any competitors who were at no fault would suffer financial detriment as a result of it being opened.

8. Public sector duty to non discrimination in investments

(1) A public authority must not in making decisions about investments, must not do so on the basis of the country of origin or business activity of an investment alone, but only on the financial interest in securing a good return for itself and on whose behalf they are investing.

(2) Where a public authority is not compliant with this section a court may make an order specifying reforms to transparency, oversight and compliance processes that must be carried out, failure to comply will result in loss of control of the investment to a person appointed by the court until such a time as the reforms have been made.

8. Interpretation

“Conflict of interest” means that the individuals involved in making procurement have both professional interests in the procurement process as part of their job and a separate financial interest to themselves personally or a friend or close relative in a specific outcome in that process.

“Competitor” means an entity competing for a contract.

“Economic agent” means a company or individual who may have an interest in applying for a contract.

“Public Authority” has the same meaning as within the Human Rights Act.

9 - Extent, commencement, and short title

(1) Section 1 and this section shall extend across the whole United Kingdom .

(2) The rest of the act shall come into force in England and Wales but have no application to Wales.

(3) This Act shall come into force 3 months after receiving Royal Assent.

(4) This Act may be cited as the Public sector equality and nondiscrimination Act.

###Schedule 1

A schedule one offence means an offence of—

(a) corruption under the Public Bodies Corrupt Practices Act 1889;

(b) under the Prevention of Corruption Act 1906;

(c) conspiracy under the Criminal Law Act 1977;

(d) fraud under the Theft Act 1978;

(e) fraudulent evasion under the Value Added Tax Act 1994;

(f) money laundering under the Proceeds of Crime Act 2002;

(g) fraudulent trading under the Companies Act 2006;

(h) fraud under the Fraud Act 2006;

(i) bribery under the Bribery Act 2010;

(j) the common law offence of bribery;

(k) the common law offence of cheating the revenue; or

(l) the common law offence of conspiracy to defraud.

Or a similar offence historically in the law of England and Wales or within the law of another jurisdiction.

This Bill was submitted by u/LeChevalierMal-Fait on behalf of the Libertarian Party, with thanks to u/Tommy2boys for discussions around the bill and his help and feedback on the issues raised.

This reading will end on the 22nd of June at 10PM BST.

M: This bill borrows and repurposes from EU public procurement directives