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Public procurement in the UK after Brexit: an agenda for reform

Anbud365: Public procurement in the UK after Brexit: an agenda for reformEuropas ledende ekspert på offentlige anskaffelser, professor Sue Arrowsmith, skriver her i en artikkel eksklusivt for Anbud365 om fremtiden for offentlige anskaffelser i Storbritannia i forbindelse med Brexit. Hun redegjør også for et reformprogram som Storbritannia har satt i gang mht egne anskaffelssregler – og fremmer i artikkelen samtidig sju egne forslag til dette programmet.

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Av Sue Arrowsmith, Achilles Professor of Public Procurement Law and Policy, University of Nottingham

Professor Sue Arrowsmith is Director of the postgraduate Executive programme in Public Procurement Law and Policy, University of Nottingham. This is a part time programme on public procurement law for procurement professionals, leading to the qualifications of a Certificate, Diploma or LLM (Master of Laws degree). It is a distance learning programme, with optional intensive seminars in Nottingham (2 days per module). No prior legal knowledge is needed. For more information email law.execpp@nottingham.ac.uk or go to: https://www.nottingham.ac.uk/law/study/cpd/executive-programmes/index.aspx

1. Introduction

Earlier this year the United Kingdom (UK) finally left the European Union (EU). Under the Withdrawal Agreement between the EU and UK a transition period applies until the end of 2020 (unless there is agreement to extend the period), and during this time the UK must apply EU procurement rules. Negotiations are currently going on for an EU-UK agreement for when the transition period ends and, in theory, that agreement could tie the UK into the EU’s procurement regime. However, at the time of writing this did not look likely. The UK has thus been discussing a domestic procurement reform programme on the basis that once the transition period ends the EU procurement rules will no longer apply.

To a large extent, the reform programme is being undertaken in order to take advantage of increased flexibility after Brexit. However, reform may not be limited solely to changes that are facilitated by Brexit: as explained below, the political opportunity for procurement reform that Brexit presents may also be leveraged to implement a more radical reform agenda.  

This article will consider what a new UK regime may look like.

The first section below gives some background, including the constraints under the Government Agreement of the World Trade Organization (GPA) (section 2). The article then explains the progress of the reform process, possible timescales and the general direction of travel of the reforms (section 3). Finally, the author will then outline her own proposals (section 4). The main thrust of the reforms is likely to be to reduce “red tape”, referring to a desire both to simplify the rather complex current rules and to give more commercial freedom to procuring entities. This is an approach that is in line with the general tradition of regulating procurement in the UK, which is sceptical of the value of rigid limits on discretion, as perhaps a cure worse than the disease.

2. Background: the UK’s traditional approach, EU law – and the future constraints of the WTO’s Government Procurement Agreement (GPA)

The UK’s traditional approach

To understand the UK’s approach to EU procurement law it is necessary to appreciate the UK’s traditional approach to regulating procurement. This had two main features, both of which contrast with the approach of many Civil Law countries. Of course, what is below is an over-generalisation as the full position cannot be described in a short article. However, it is sufficiently accurate for present purposes.

First, in many countries there has been a long tradition of laying down rules on public contracts, especially on tendering, in legal instruments that are, first, binding in effect and, secondly, (often) enforceable by suppliers. This was the case with many Civil law countries, such as France, Greece and Italy, which had detailed formal procurement “Codes” before regulation by the EU. This was not, however, the case with the UK, particularly in central Government where rules directed at value for money have been imposed through administrative directions and guidelines (currently mainly by the Treasury or Cabinet Office). In principle, these are not enforceable; and they are not even legally binding. Further, direction from central authorities such as the Treasury or Cabinet Office often has not taken the form even of non-binding requirements (directions)to act in a certain way, but merely the form of suggestions (guidance), leaving decisions to each procuring entity. Currently directions and guidance for central government – which supplement the legally binding EU rules – generally take the form of what are called Procurement Policy Notes (https://www.gov.uk/government/collections/procurement-policy-notes). These directions and guidance are often referred to as “soft law,” contrasting with the “hard law” of binding and enforceable legal rules.

A second feature UK procurement regulation is that the content of this soft law has often been quite basic and lacking in detail. In other words, there is a tradition of giving quite wide discretion to individual procuring entities.

These features of UK procurement regulation are also quite strong at local level, where local authorities have generally been free to establish their own rules. For procurement of goods and works (though not services) these must, however, take the form of general Standing Orders. (These are required under section 135 of the Local Government Act 1972.) Standing Orders are legally binding on the local authority once it has made them.  During the 1970s it was established in case law that these could not be enforced by suppliers. However, since then the case law has changed direction and probably today suppliers would be able to enforce them.

The above approach places value on the existence of discretion above the benefits that come from regulating discretion. Many public procurement systems place strict limits on discretion, taking the view that such limits are needed to prevent abuse, whether for reasons for corruption or to favour national suppliers. However, curtailing discretion can damage other procurement objectives. For example, assuming no abuse, discretion can enhance value for money – for example, by allowing negotiations with suppliers to enable suppliers to adapt their services to the authority’s preferences (as under the EU’s competitive dialogue procedure), or to improve tenders. This tension between limits on discretion to prevent abuse and discretion’s potential to improve public procurement outcomes has been examined most notably by Kelman in his seminal book, Procurement and Public Management: The Fear of Discretion and the Quality of Government Performance (Washington, DC: AEI Press, 1990).

Rather than seeking strict limits on discretion, the UK has long focused on culture, professionalism and professionalization (with the Chartered Institute of Procurement and Supply playing a significant role) as an important means to achieve good public procurement – things which the EU at supranational level has recently begun to appreciate, with the publication of the European Commission Recommendation on the professionalisation of public procurement: Building an architecture for the professionalisation of public procurement in 2017 (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32017H1805).

The UK’s approach has also traditionally been sceptical of the value of a legalistic approach to ensure effective procurement, in view of the disruption and other costs of constant legal actions.

It is these elements of the UK legal tradition that lie to a large extent behind the ideas for reform in the UK after Brexit.

The impact and implementation of EU law

As highlighted in the excellent book by Fernandez Martin, The EC Public Procurement Rules: A Critical Analysis (Oxford: Clarendon Press, 1996), the need for the UK to comply with EU procurement rules significantly changed the UK system. The Directives introduced detailed rules that were required to be implemented in a legal and enforceable form. These rules have become ever more detailed as the Directives have been interpreted – and added to – by case law at EU level and as new Directives have been adopted.

Although the Directives date back to the early 1970s, significant change did not occur in the UK until relatively recently, in the early 1990s, as only in the late 1980s did the EU begin seriously to enforce procurement law (including with the first Remedies Directive, 89/665/EEC). In the early 1990s the UK adopted its first procurement Regulations to transpose the Directives. These have since been amended and replaced many times, but the current Regulations maintain essentially the same general approach as the Regulations of the 1990s. 

Currently (covering England, Wales and Northern Ireland) there are four sets of Regulations: the Public Contracts Regulations 2015 (transposing Directive 2014/24), the Utilities Contracts Regulations 2016 (transposing Directive 2014/25), the Concession Contracts Regulations 2016 (transposing Directive 2014/23) and the Defence and Security Contracts Regulations 2011 (transposing Directive 2009/81). Other than in the case of remedies, the Directives are transposed almost wholly by copying them into national law. In general, nothing is added either to expand to explain the EU rules, or to restrict any of the powers that the EU allows for procuring entities.

The logic behind this approach is to maintain the UK’s traditional approach to regulating procurement. Thus legal rules are essentially the minimum required by EU law, and other aspects of procurement continue to be regulated in the traditional manner through soft law. For example, in the COVID-19 pandemic, the Government has issued a number of Procurement Policy Notes on issues such interpreting the legislation in the pandemic but, unlike some Member States, did not enact new legal rules for civil sector procurement. 

This is not to say there is no other law on public procurement in the UK. There have always been pieces of legislation dealing with a few areas. A notable example is the Public Services (Social Value) Act 2012, which places a duty on public bodies in England and (with exceptions) in Wales awarding larger services contracts to consider how what is being procured might improve the social, economic and environmental well-being of their relevant area. However, these are, in general, isolated pieces of legislation and they have not generally been integrated into a single procurement Act, Code or set of Regulations.

The future constraints of the GPA and other trade agreements

As mentioned, the UK is approaching reform on the assumption that EU rules will no longer apply. However, this does not mean there will be a “blank canvas”. This is because the UK has agreed (under a Decision in February 2019) to accede to in its own right after Brexit to the Government Procurement Agreement (GPA) of the World Trade Organization. The GPA is a multilateral (optional) agreement which provides for mutual access to public procurement markets. It currently provides access between the EU Member States on the one hand, and many of the EU’s trading partners, on the other. UK accession to the GPA after Brexit will mean that the UK’s access to markets of the non-EU partners will continue largely as they were prior to Brexit. The GPA will also provide for mutual market access between the UK and EU Member States, to replace access previously given under the TFEU and Directives (and currently provided under the EU-UK Withdrawal Agreement). The GPA will also govern mutual market access between the UK and EFTA states, including Norway.

The coverage for the UK under the GPA is based on the EU’s current GPA coverage for third countries. However, this is not quite as wide as coverage of the EU rules – it does not cover hard defence, certain utility and services contracts, or contracts below the EU thresholds (and the coverage of concessions is rather uncertain). However, it does cover the vast majority of contracts currently tendered under the Directives.

The GPA, like the Directives, imposes transparency rules, requiring competitive tendering and legal remedies for suppliers, to support its market access provisions. This effectively entails both a “hard law” approach to regulating procurement and substantive constraints on the extent of discretion that can be given to procuring entities. Thus there are constraints on the UK’s ability to resort to its traditional approach. However, under the GPA both the  transparency rules and remedies requirements are less stringent and detailed than those in the Directives, leaving significantly more freedom for the UK to design its own procurement rules in these areas than exists under EU law.

3. The current reform programme

The greater freedom offered by the GPA as compared with the EU rules, and the belief that this greater freedom can enable the UK to design better Regulations, is the main motivation for reform. However, it is important to highlight that the political opportunity provided by Brexit in this area is also being leveraged to consider broader reforms.

Against this background, in 2019 and 2020 the Cabinet Office held a series of stakeholder focus groups to explore options and in October 2019 established a Procurement Transformation Advisory Panel (of which the author is a member). The plan to reform the rules was first announced publicly on 4 November 2019 in The Telegraph newspaper under the headline see “[Prime Minister] Boris Johnson orders a ‘bonfire’ of red tape to give small firms a bigger slice of Government contracts after Brexit” (The Telegraph, 4 November 2019).

This headline and article give a flavour of the Government’s initial thinking, as being to reduce “red tape” – that is, to get rid of rules and detail considered to be disproportionate to its objectives, or counterproductive – and, both by this process and other means, to improve access for smaller organisations. This fits with the traditional UK approach of affording discretion, trusting to the appropriate exercise of this discretion to ensure good outcomes and to other means to minimise abuses.  

Progress has suffered inevitable delays as a result, first, of the 2019 General Election and, secondly – of course – the COVID-19 pandemic. However, a Green Paper outlining proposals and/or options for reform seems likely in 2020, although actual legal change may take well over a year given the pressures on legislative time at present.

The current Regulations (based on the Directives) will be retained at the end of the transition period and seem likely to remain in place (although with adjustments) until the reforms are completed. The main immediate change at the end of the transition period will be that UK contracts will no longer be advertised in the Official Journal of the European Union but instead in a new database, Find a Tender, which will be the new medium for meeting international obligations.

It remains to be seen whether the UK Government will remove the right to enforce the Regulations for foreign suppliers who have no access rights under a trade agreement at the end of 2020.

4. Some proposals: seven core principles

The present author has proposed seven core principles to govern the proposed reforms, which reflect the above agenda.

Principle 1.  An open contracting approach

The first is a commitment to a comprehensive open contracting regime of the kind promoted by the Open Contracting Partnership (www.open-contracting.org/wp-content/uploads/2019/05/OCP-strategy19-23digital.pdf). Open contracting is a policy of making all procurement information available and easily usable through a system designed specifically for the purpose – a manifestation of a broader concept of open governmental data. The Government already uses the Open Contracting Data Standard (OCDS) created under the auspices of the Open Contracting Partnership to implement certain existing disclosure obligations and policies. The value of such a system depends significantly on the quality of the data, however, and any such reform needs also to ensure high quality data is produced for the system.

Open contracting is obviously not precluded by EU membership, but the post-Brexit reform process provides an ideal opportunity to embed a commitment on this area in legislation and, it is submitted, should be leveraged to the full to this end.  It is also connected to other reforms in that open contracting can provide a means to monitor behaviour that is a better alternative to regulation of discretion (and thus also supports the case for allowing more discretion). An open contracting policy would subsume many specific post-award information obligations, as well as improving on them (for example, by providing for better transparency for awards under framework agreements), facilitating a simpler legal framework. Finally, such an important reform needs to be integrated carefully and from the start into the regulatory framework.

Principle 2. A single and uniform regime for the Westminster jurisdiction

The second proposed principle for reform relates to the content of award procedures and remedies. This is that there should be a single regime, in that all procurement rules should (for accessibility) be in a single Act and/or set of regulations, and a uniform regime, meaning that the rules should generally be the same for all contracts, sectors and entities.

In particular, current distinctions between different entities (contracting authority, public undertaking etc), sectors (utilities and defence) and contract types (concessions and others) should be largely abolished. Instead of four different sets of Regulations (based on the four different Directives), with a further sub regime for social services and certain other services, with very few exceptions there should be just one regime applying the same rules for all contracts. The current differences under EU law are, it is submitted a result of history and politics, not logic, and Brexit provides the opportunity for a more modern and streamlined approach – which could even provide an example for the EU in future.

The case for this approach rests on two key points.

The first is that this approach will reduce the costs of operating the rules for stakeholders (including SMEs and procuring entities). It will make the rules easier to understand and operate. It will eliminate uncertainties arising from differences in wording between parallel rules in different regimes. For example, in 2014 the Public Contracts Directive 2014/24 introduced an explicit provision that a single framework agreement may involve call offs both and without using a mini-competition under certain conditions (Art.33(4)(b)); however, no such provision was included in the utilities rules, even though these are generally more flexible, which could potentially lead to doubts over how far this is possible with utilities and whether the same limiting conditions apply (clearly not intended as the utilities rules are generally more flexible not less flexible). Further, a more uniform regime will reduce “boundary” disputes about what regime should apply in any given case.

The second point is that this can be done without making the rules less suitable for certain situations. This is because there is neither any significant justification for differences, nor much real difference, between the current regimes: many apparent differences are cosmetic, and those that are substantive are largely anomalous, the current position with multiple regimes being largely a product of historical or political considerations.

For example, while the Concessions Directive (2014/23/EU) has been presented as involving a different and more flexible regime, in reality the differences between the concessions regime and the utilities regime are very small. Further, the arguments made in the legislative process for having a different concessions regime – such as the need for more flexibility in modifying concluded contracts – have not in the end been carried through to actual differences in the Concessions Directive (which has the same rules on modifications as other Directives). This highlights the fact that there is, in the author’s view, no justification in procurement terms for treating concessions and other complex works or services contracts differently; they have the same features (such as long duration, need for flexibility in modifications, need for rules to deal with bids by consortia etc). (See S. Arrowsmith, “Revisiting the Case against a Separate Concessions Regime in the Light of the Concessions Directive: a Specific Directive without Specificities?” Ch.23 in F. Amtenbrink, G Davies, D. Kochenov and J. Lindeboom (eds), The Internal Market and the Future of European Integration (2019; CUP), pp.370-395.)

Similarly, the Public Contracts Directive (2014/24/EU) and Utilities Directive (2014/25/EU) have come much closer together in the 2014 reforms. For example, the conditions for using “flexible” procedures allowing discussions with suppliers in the Public Contracts Directive (competitive dialogue and competitive procedure with negotiation) have been greatly extended (in Art.26), while the rules on framework agreements for utilities have been tightened to make them in practice similar or those in the Public Contracts Directive.

Principle 3. Significant legislative simplification involving a shift from hard law to soft law

Successive waves of EU procurement legislation, including the reforms in 2014, have been heralded as involving “simplification”. In reality they have had the opposite effect, producing much longer, more complex and not entirely coherent Directives.

Numerous examples could be given of provisions that are superfluous and/or confusing. One detailed illustration will suffice here, however: the provisions on award criteria (in Public Contracts Directive Art.67(3)) stating that:

  “Award criteria shall be considered to be linked to the subject-matter of the public contract where they relate to the works, supplies or services to be provided under that contract in any respect and at any stage of their life cycle, including factors involved in:

(a) the specific process of production, provision or trading of those works, supplies or services; or

(b) a specific process for another stage of their life cycle, even where such factors do not form part of their material substance.”

This is wholly unnecessary, as well as confusing in its puzzling reference to “material substance – unintelligible to anyone not equated with the peculiar history of this provision.  It clarifies what appears to be an obvious meaning of the provision and is now clear from the case law (in particular, Commission v Netherlands (C-368/10), ECLI:EU:C:2012:284). It was added only to negate a misleading and confusing impression once created in the past by illogical guidance from the European Commission and that clarification is no longer needed. (On this see, in detail, S. Arrowsmith, The Law of Public and Utilities Procurement Vol. 1, 2014 (Sweet & Maxwell), at 7-170-7-179.) Guidance on the kind of matters that can be taken into account as award criteria is better addressed in soft law than in any Regulations (see below). The EU Directives themselves could benefit significantly from such a simplification process. (See further S. Arrowsmith “Modernising the EU’s Public Procurement Regime: a Blueprint for Real Simplicity and Flexibility” (2012) 21 Public Procurement Law Review 71.)

Such simplification, with its reduced detail, must be accompanied, however, by extensive high quality soft law in the form of, in particular, explanatory guidance – to explain to stakeholders points that are clear in the legislation but need transmitting to stakeholders in a different way – and interpretative guidance, to deal with unclear legal issues. Such guidance can provide certainty and comfort to practitioners and limit the need for many different individuals to interpret the rules, facilitating efficient day-to-day decision-making. It also allows useful flexibility – for example, where a rule fails to take account of all eventualities or of new developments – which is important in a complex field such as procurement.

Principle 4. Use of familiar concepts, rules and terminology where appropriate

Although the proposed reforms will bring some significant changes, it is the author’s view that new legislation should still use familiar concepts, rules and terminology as the starting point. These should be used where there is no reason for change. For example, the new legislation should continue to use the current concepts – such as the negotiated procedure with a call for competition – rather than use new terminology (such as the “selective tendering” terminology used by the GPA or terminology from other international systems).

This will have significant advantages in terms of familiarity and certainty, including because of the extensive body of case law and related literature that can help guide interpretation. This will make adaptation to the new regime less costly, including by avoiding re-litigating points already covered in a satisfactory way. This approach is particularly useful for the most technical areas, such as correction of errors in tenders.

This may be controversial from the Government’s point of view, given the political impetus to be seen as moving away radically from the EU model. However, in informal surveys taken by the author at various events there has been overwhelming support for this approach. It would be unfortunate if the UK Government were to allow such political considerations to override the above pragmatic considerations and perhaps undermine support for the reforms from the most important stakeholders – those who must apply the rules – by generating unnecessary uncertainty.

Principle 5. A rebalancing of interests (away from open market objectives towards value for money, sustainability and reduced procedural costs) and a related shift in regulatory strategy to increase flexibility

The EU Directives are concerned mainly with opening up markets to competition between Member States and not directly with “national” objective such as value for money, which tend to be given lesser weight in interpretation. One aspect of that is the focus on limiting discretion to prevent abuse in favour of national suppliers, even though this can also inhibit the opportunity to value for money, as explained earlier.

A very significant element of the reform should be a shift away from current concerns towards value for money and also towards reducing the costs of the procurement process, through giving more discretion to procuring entities. This would allow them to follow a more commercial approach, more akin to that followed in the private sector, which does not use formal competitive tendering as a general rule, albeit competition plays a significant role in much private procurement. In the author’s experience this is likely to have strong support from many groups of stakeholders.

It is the author’s view that this new balance should be achieved by taking as the starting point the legal framework that applies in the utilities sectors (although in line with the principles outlined above this framework must be applied with radical alterations, such as significant simplification of the detail of the rules). This will allow, in particular, free access to the negotiated procedure with a call for competition, thus allowing negotiation with suppliers, where appropriate, in a manner designed by the procuring entity to suit its needs. It will also, for example, allow wider use of qualification systems by the public sector.

A further reform that would be useful – and which would go beyond even the flexibility currently offered by the utilities (or concessions) rules – would be to allow the use of truly dynamic purchasing arrangements. These – unlike the current Dynamic Purchasing System concept – would allow suppliers on a purchasing system to continuously revise their offers as they think fit, and allow a procuring entity to simply to take advantage of the best offer on the system, without a tender to a specific deadline.  With some small modifications, this is possible within the framework of the GPA, which follows an approach quite similar to that of the early EU utilities rules.

Principle 6. A more effective and balanced approach to enforcement

This sixth principle proposed by the present author – and for which Government pronouncements have indicated support – is a more effective and more balanced approach to enforcement. This sixth principle – like the first proposed principle of open contracting – can be implemented regardless of Brexit. Indeed, the first element of improved effectiveness is probably required under EU law: doctrinal analysis backed up by empirical research on the use of supplier remedies suggests that the expense, length and other problems of the current remedies system – which requires actions to be brought in the High Court – is far from meeting EU effectiveness requirements. (See S. Arrowsmith and R. Craven, “Public Procurement and Access to Justice: a Legal and Empirical Study of the UK System” (2016) 25 Public Procurement Law Review 227.) It is somewhat ironic that such a reform should be considered only after Brexit, but this can be accounted for by the political impetus to procurement reform provided by the Brexit process.

In addition to being effective, however, the system also needs to be balanced. This means that it must take account of the costs as well as the benefits of better access to justice for suppliers. Such costs include the cost of funding review bodies, financial and resource costs of complaints and litigation, and delay to public projects. This may require some adjustments – such as to damages as suggested below – that would not be compliant with the EU’s own rules.

It is proposed that any new system should – like the EU system – focus on remedying violations before a contract has been concluded. A new system should retain the standstill and notification obligation and automatic suspension for this purpose, even though not required by the GPA.

A new system should also provide for rapid completion of the enforcement process, with a general target time for deciding complaints stated in the legislation. This exists in many EU Member States but not in the UK. To achieve this and ensure that costs are proportionate a new specialist review should be established, as has now been done in many other Member States. (On these points see European Commission, Economic efficiency and legal effectiveness of review and remedies procedures for public contracts, Final Study Report, MARKT/2013/072/C (April 2015) (“Commission remedies report”), available at http://ec.europa.eu/growth/single-market/public-procurement/studies-networks/index_en.htm.)

Some stakeholders in the UK have suggested that the courts should be retained as an additional, optional forum, to allow access to a “gold standard” of justice for those suppliers who can afford it. However, even with reforms to speed up litigation, the present author considers that this approach should not be adopted. This is not a balanced approach, in view of the time and costs that are still likely to be involved for procuring entities.

In addition, a balanced approach, it is submitted, should involve removing damages for lost profits except under the existing tort of misfeasance in public office in the UK, which requires intentional or recklessly unlawful behaviour for damages. Damages for lost profits should not be available when the procuring entity is not at fault in this sense. This is quite a different test from the current “sufficiently serious breach” test which applies to decide whether damages are available for lost profits under the Remedies Directive, according to the judgment of the EFTA Court in Case E-7/18, Fosen-Linjen 2. This test has been applied in the UK courts. The UK courts have taken the view that the sufficiently serious breach test does not generally require any fault and the case law seems to indicate that in the context of procurement a serious breach that could have affected the result of an award procedure will suffice: see Energy Solutions EU Ltd v Nuclear Decommissioning Authority (No.3) [2016] EWHC 3326 and, recently, Ryhurst Ltd v Whittington Health NHS Trust [2020] EWHC 448. It can be argued, however, that the award of damages for lost profits is only justified when a swift and cost-effective remedy is not available before an efficient review body – and that introducing such a body justifies removing the lost profits remedy in the UK.

Principle 7. A common framework across the UK jurisdictions

Finally, we should mention that the UK is not a single jurisdiction but that the devolved Governments in Scotland, Wales and (potentially) Northern Ireland enjoy power to regulate public procurement to varying degrees. There is a strong common element in the procurement laws of the different UK jurisdictions because they are all subject to the EU procurement rules, and also because in practice they have applied the same to implementing this EU law. Scotland has its own set of Regulations, but in general these have been almost identical to those in the rest of the UK. However, Scotland has also increasingly adopted additional rules to those in the Directives.

These points are important for the post-Brexit scenario since, freed from the constraints of EU law, the different UK jurisdictions – when they have much greater flexibility to decide their own laws – might choose more divergent approaches, leading to a more fragmented UK procurement system.

It is desirable that the Governments should work together to produce a common framework across the UK jurisdictions so far as that is possible. It would be unfortunate if the benefits of a simpler framework in the largest jurisdiction – the Westminster jurisdiction – were to be counteracted by greater complexity resulting from different approaches in different parts of the UK.

6. Conclusion

We have explained that the main thrust of the reforms to UK procurement law after Brexit is likely to be towards reducing “red tape”, referring to a simplification of the current rules and the loosening of restrictions on discretion. Such reforms would move regulation back in the direction of the UK’s traditional approach, harnessing the benefits of that approach while at the same time preserving and building upon the beneficial effects of legal regulation and complying with obligations under the GPA. It is expected that the current reform process will also be used to introduce other reforms that are not directly a consequence of Brexit.

The present author has proposed seven core principles to govern the proposed reforms, which reflect the above agenda and some of which, it is suggested, are likely to have significant support from many stakeholders.

It is far from clear at the present time, however, precisely what the content of the new rules will be. A Green Paper is expected in the next few months that will give a much clearer idea of what the new UK regime will look like.

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