4. Some other key policies and principles linked to public procurement
Sustainable procurement duty
The 2014 Act describes the sustainable procurement duty as 'the duty of a contracting authority —
(a) before carrying out a regulated procurement, to consider how in conducting the procurement process it can —
(i) improve the economic, social and environmental wellbeing of the authority's area,
(ii) facilitate the involvement of small and medium enterprises, third sector bodies and supported businesses in the process
(iii) promote innovation; and
(b) in carrying out the procurement, to act with a view to securing such improvements identified as a result of paragraph (a)(i).'
This means that public bodies need to think about, and act on, how each regulated procurement process carried out by them can improve the economic, social and environmental wellbeing of their area as well as facilitating the involvement of SMEs, third sector bodies and supported businesses, supporting innovation and acting on their findings.
Compliance with the sustainable procurement duty ensures that procurement activity is aligned to a range of policy priorities that are described in the National Performance Framework. The relationship between Scottish Government priorities and the sustainable procurement duty is described in more detail at section 2 of this document. Compliance with the duty also helps us to meet other legal obligations on procurement including climate change, human rights and equality obligations.
Climate change targets
Our procurements contribute towards delivering climate change targets – i.e. net-zero greenhouse gas emissions nationally by 2045 in response to the global climate emergency. A core component of sustainable procurement is the reinforcement of other Scottish Government policies such as the Circular Economy Strategy, 'Making Things Last'. The sustainable procurement tools help identify opportunities to make appropriate use of and to protect Scotland's natural resources in the following areas:
- climate change including low carbon initiatives;
- people and nature – including animals and plants – in the form of biodiversity, landscapes and natural heritage initiatives; and
- consumption and production in the form of waste reduction, material scarcity and energy efficiency initiatives.
As part of our commitment to mainstreaming sustainable public procurement, our new sustainable procurement tools platform was launched in June 2020, and we continue to promote its role as a central source of tools and guidance. The tools also house the recently launched climate literacy e-learning which is accessible and free of charge to every buyer in Scotland to help build their understanding and confidence in driving the climate agenda. This reflects the importance of using public procurement to support our climate aspirations. We are exploring with partners how we might further develop this training to make it available for SMEs and the third sector. Further information about our specific work in procurement to help address the global climate emergency is described at section 7.
The Scottish Government is committed to ensuring that everyone in Scottish society can enjoy their human rights in full. That includes being able to live with dignity and being treated fairly and without discrimination. We should all be able to make properly informed choices. That includes participating in making decisions which affect our rights, whether services are delivered directly or are procured from third parties.
The Scotland Act 1998 and the Human Rights Act 1998 ensure that Scottish legislation and the actions of public bodies have to comply with core human rights standards derived from the European Convention on Human Rights. Public bodies are also expected to support implementation of other international human rights treaties ratified by the UK, such as the International Covenant on Economic, Social and Cultural Rights and the European Social Charter.
We are also working to implement the UN Guiding Principles on Business and Human Rights (UNGPs). These provide good practice guidelines for the private sector, including where the state either contracts with, or legislates for, business enterprises to provide services that may impact upon the enjoyment of human rights.
The Scottish Government's annual Programme for Government highlights further commitments to enhance and develop human rights protections in Scotland. Proposals developed by the National Taskforce for Human Rights Leadership are expected to result in new legislation to incorporate United Nations
and other international human rights treaties into domestic law.
The United Nations Convention on the Rights of the Child (Incorporation)(Scotland) Bill was passed by the Scottish Parliament on 16 March 2021. The legislation, once commenced, will require public authorities to act compatibly with the UNCRC requirements defined in the bill. Children's rights should be built into all aspects of service delivery and planning including budgeting and relevant procurements. These rights will be enforceable in the courts.
The sustainable procurement duty provides a mechanism for the Scottish Government and other public bodies to comply with the general equality duty set out (section 149) in the Equality Act 2010 ("the 2010 Act") and with the specific duties in the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012. In essence, the specific legislation requires the Scottish Government, when delivering policy, to have due regard to the need to:
- eliminate discrimination;
- advance equality of opportunity; and
- foster good relations between people who share protected characteristics and people who do not.
The Fairer Scotland Duty, Part 1 of the Equality Act 2010 (also known as the socio- economic duty), came into force in Scotland in April 2018. It requires public bodies including the Scottish Government to have due regard to how they can reduce inequalities caused by socio-economic disadvantage when making strategic decisions.
Fair Work First
We are clear that Fair Work is central to achieving the Scottish Government's priority for sustainable and inclusive growth, and as we transition out of the COVID-19 pandemic and into a period of economic recovery and renewal, Fair Work is more important than ever and must be at the heart of employment practices, funding and procurements.
The public sector can lead the way by applying the targeted Fair Work First criteria in public contracts. We are committed to continuing to roll-out the Fair Work Action Plan commitments which touch on procurement policy and practice across many sectors including social care and procurement.
Public buyers can use the national sustainable procurement tools to tackle a wide range of socio-economic and environmental outcomes through procurement (e.g. encouraging a diverse workforce, asking bidders to adopt 'Fair Work First' practices, including closing the gender pay gap) and to address inequality (e.g. training and recruitment activities targeted at disadvantaged groups) through their procurements. See section 6.3 for more information.
In common with human rights obligations, the responsibilities imposed by the Equality Act 2010 cannot be transferred or delegated. More information about how equality considerations apply in our procurement process is available on our website. The Equality and Human Rights Commission (EHRC) has also produced guidance for Scottish public authorities.
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