Tuesday, 11 March 2014

Why so meek on Procurement and the Living Wage?

The silence from too many MSPs on the Scottish Living Wage is becoming increasingly hard to accept.  The Scottish Government has made important moves to deliver a Living Wage for directly employed public service workers but has shown little passion or even curiosity in terms of what might be possible for it to deliver through the near £10 billion spent annually on public procurement.

The Living Wage is an unusual case wherein a number of Scottish political parties are seemingly less progressive, or at least less vocal, than their UK counterparts or equivalents.

It is true to say that the position of the Scottish Greens and Scottish Labour are both consistent with those of their UK organisations and the independent MSPs have been stalwart supporters of a Living Wage. But contrast the relative quietness of the Scottish Tories with the position of Boris Johnson who loudly champions the Living Wage whenever the opportunity arises.  Or the Scottish Liberals’ reticence whilst Nick Clegg’s calls for a “compulsory Living Wage for government workers”. 

And whilst it’s hardly fair or accurate to describe Plaid Cymru as the exact Welsh equivalent of the SNP, their leader Leanne Wood has gone significantly beyond support for a Living Wage for directly employed public servants and argued for a Procurement Bill in Wales to ensure fair pay for those employed under government contracts.

Just to recap.  The Scottish Living Wage Campaign, comprising STUC, Poverty Alliance, SCVO, Oxfam, Scottish churches and public sector unions Unison, Unite, GMB, PCS, along with a whole host of care sector employers including their umbrella body CCPS, have all argued that the Scottish Government could and should include within the Procurement Reform Bill a stipulation that public contracts should pay the Living Wage.  The Scottish Government argues that it cannot do so, having sought advice from the European Union.

Our legal advice says they are wrong and STUC believes that if the Scottish Government were to ask the right question of the right people in the EU, this would become clear. A full Living Wage Campaign briefing is available here.

As long as the Bill clearly defines that the purpose of a Living Wage stipulation is to guarantee human dignity and provided that the stipulation is specific to the performance within specific contracts, the Scottish Government would be in strong position to defend its case.  Here is the amendment to the Procurement Bill we are supporting.

36 In section 8, page 3, line 33, at end insert <, and

( ) the Scottish living wage duty.>

39 After section 9, insert—

Scottish living wage duty

(1) For the purposes of this Act, the Scottish living wage duty is the duty of a contracting authority to specify in the contract notice relating to a regulated procurement that it intends to impose a condition relating to the performance of the contract that the economic operator who is the successful tenderer must pay the Scottish living wage.

(2) An economic operator pays the Scottish living wage if the remuneration of each of its employees who undertakes any activities related to the performance of the contract is at least the Scottish living wage.

(3) The Scottish Ministers must by regulations define the Scottish living wage for the purposes of this Act, and may from time to time as they see fit revise such definition.

Just for the avoidance of doubt.  The Greater London Authority which, under the leadership of Boris Johnson, is currently rolling out the Living Wage through procurement.  It said in February:

3.14. Public bodies can follow clear steps to protect themselves as they procure. To ensure compliance with European legislation, procurement decisions should be considered individually, rather than as a blanket policy. Within this context, the Mayor’s office has rightly been clear that a Living Wage standard in procurement is legally possible, and this standard is applied within the GLA group. 75 Some boroughs are confidently pursuing a proactive Living Wage commissioning policy.
3.15. Organisations need to seek their own legal advice when deciding to apply a Living Wage standard to procurement. The Mayor’s support for Living Wage contracting across the GLA group and encouragement of Living Wage procurement by others certainly helps to reassure employers that this is possible.

Just about everyone I have spoken to agrees nthat there is absolutely no prospect of the use of the Posted Workers Directive as the basis for a challenge to Living Wage contract performance clauses.  There is also absolutely no impediment under the existing powers of the Scottish Parliament to it enacting suitable legislation, nor any suggestion that independence would make it any easier or harder to pursue.

If it’s good enough for London, it’s good enough for Scotland, and it’s a time a few more of our MSPs started saying so.

 Dave Moxham


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