This blog was written by Julian Blake of E3M partner Stone King for the Human Learning Systems (HLS) website and we are pleased to share it on ours as we believe our approach in E3M is complementary to the work of HLS.

Julian, who is a public benefit lawyer and co-author of The Art of the Possible in Public Procurement, sets out how law should be an enabler of, not blocker to, the adoption of Human Learning Systems approaches.

HLS principles resonate because they are good and right. The same is true of the related principles of social enterprise; co-operative participation; community wealth-building, and localism. All focus on improving people’s lives in complex environments.

Against these principles are non-human, non-learning systems, where process has come to distort purpose. This is particularly the case in politico-economics and public law.

Over decades, in public service commissioning, competition law has acquired a dysfunctional primacy. Public sector contracts, through failure of imagination, are still taken from the commercial law textbook. The Government’s current “Transforming Public Procurement” proposals for legislative reform, unfortunately, perpetuate this and emphasise flexibility and transparency, which are already features of the current law, properly understood and applied.

True transformation requires some fundamental shifts:

• prevailing, persistent, narrow channels of thought need expanding;
• siloed public sector departments need connecting, and
• the commissioning practice and law textbook needs to be written.

In 2016 I co-authored The Art of the Possible in Public Procurement, in exasperation at the way initiatives and innovations of public benefit providers were repeatedly blocked by misinterpreted and misapplied public law. That publication resonated, because it too, was good and right. It led to five years and counting of the question: “I know we can do this, but how?”

The answer is through commissioning in a way that adopts multiple, collaborative, facilitating, co-ordinated methodologies. The answer is not through serial procurements of transactional contracts in phantom, or undeveloped, “markets”, unconnected to actual need.

One of the purposive procurement concepts I have championed is the “Innovation Partnership”. Introduced in 2015, Innovation Partnerships answered questions about how public authorities could create co-designed, collaborative, developmental relationships with purpose-aligned providers. The European Commission’s message was: “don’t think you can’t do these things, because you can”. But this led to many conversations ending with: “this sounds interesting, but we can’t do it, because no one has done it”.

Enter the courageous Leicestershire County Council and Oldham Council, who have pioneered Innovation Partnerships in Children’s Services and Social Prescribing respectively and were each award-winning for their innovation. An independent evaluation complemented Leicestershire on its approach “to risk and uncertainty”. In contrast to a standard procurement yet again.

This starts painting a picture of a legal and regulatory environment that is not obstructive to HLS and the other purpose-driven principles, but facilitative. Where the multi-sector, multi-stakeholder community partnership may become a reality.

The fundamental required change is for “collaboration theory” to become as familiar and natural as competition theory. Public Procurement is part of competition law, protecting fair commercial competition against market distortion. That may, or may not, also give assurance of optimum public service delivery. Alternatively, public benefit collaboration models might be more efficacious. Especially, where the demand is for full coverage, high quality, sustainable, improving, responsive, adaptive services, meeting actual immeasurable, complex, inter-connected and changing needs.

That is a challenge to mindsets and at the practical level, to those responsible for legal advice and facilitating documentation reflecting such re-orientated public service relationships. Reaching for change does not come naturally to legal, procurement, treasury, decision-making officers or councillors, or, to be fair, most of us.

So how can these concept shifts restore human purpose as paramount, so the commissioning system can learn to engage with socio-economic complexity?

I suggest an important contribution can be made through being much more demanding of what legal interpretation, advice and support must offer. While equally true of other disciplines, I speak as a public benefit lawyer. The law does not preclude what is good and right.

Through the E3M Procurement to Partnership Toolkit, I summarise five fundamental correctives for public service commissioning:

i) commissioning as social ecosystem management;
ii) purpose as paramount;
iii) social/public value as 100% inherent and integral (not merely additional);
iv) purpose-alignment with the public benefit sector being a prime resource, and
v) all this meaning that relational partnership may, substantially, replace commercial transaction.

There are many versions of the same message, including as articulated through HLS. The essential legal point is that none of these messages need any legal change. They just need more legal application and creativity and a healthy detachment from traditional, risk-averse, unhelpful, legal orthodoxy.

The misconceived procurement presumptions that a public authority’s role is to buy a service and it knows what to buy, may then give way to appreciative enquiry into actual needs and where actual knowledge resides.

Commissioning may then comprise strategic use of subsidy; investment; leveraged investment; and community engagement, facilitation and asset transfer, as well as contract.

Any contract can then be a working, collaborative agreement, with a primary focus on realising human, public benefit objectives, including through continuous communication and appropriate adaptation.

Multi-party collaboration agreements may describe particular organisational roles, harmonise perspectives and integrate activity.

Ultimately, it can be a legal condition of participation in public services that any supplier must be meet Public Value Imperatives, including, being purpose-driven, non-extractive and dedicated to meeting actual “human” needs; with a developmental “learning” commitment, thereby contributing to real improvement in the public service “system”.

To find out more, see:
The Art of the Possible in Public Procurement
From Procurement to Partnership: A Practical Toolkit for Commissioners

You can contact Julian at JulianBlake@stoneking.co.uk