The Health and Social Care Select Committee published a report yesterday supporting the move towards integrated care for NHS bodies and away from market mechanisms, including the legal duty on NHS bodies to hold procurement competitions before NHS commissioning contracts are concluded. The report recommends that the government should remove key elements of the internal market and, in particular, should repeal section 75 of the Health and Social Care Act 2012 and Regulations which impose procurement duties on NHS commissioners. However, it is doubtful whether a limited repeal of this type will enable NHS bodies to commission services in a way that avoids EU procurement rules.
This report followed an inquiry by the Select Committee. That inquiry called on experts for assistance, including David Lock QC of Landmark Chambers who gave evidence to the committee.
Responding to the report, David Lock said today:
“Whilst the repeal of section 75 and the associated Regulations may well be a welcome first step in disentangling the NHS market from EU procurement and competition law, a far more comprehensive approach is likely to be needed in order to provide proper protection for NHS bodies from future procurement challenges. As long as the NHS is set up as a mixed market with a combination of public bodies, voluntary organisations and private companies providing services to NHS patients, the EU Procurement Directive and the Public Contracts Regulations 2015 will continue to apply to all NHS contracting decisions.
Repealing the NHS procurement Regulations will not affect the continuing application of the Public Contracts Regulations 2015 and thus will not avoid EU procurement laws impacting on the NHS. Thus, of itself, it is likely to deliver little practical benefit to NHS commissioners”