Question
To ask Her Majesty’s Government, further to the remarks by Earl Howe on 24 April (Official Report, col. 1509), whether Monitor has the power under the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 to act as a “firewall between the commissioners and the courts”; whether, in accordance with Regulation 76(7), failure to comply with Regulation 75 is “actionable”; and whether a clinical commissioning group acting in breach of its duties under Regulation 5 will be exposed to the possibility of a legal challenge in court.[HL251]
Answer
The Government cannot remove the possibility of legal challenge to commissioners’ decisions whether under the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013, the Public Contract Regulations 2006 or through judicial review. However, the regulations provide an accessible and effective alternative to challenging decisions in the courts by providing for Monitor, a specialist health regulator, to consider unfair procurement decisions.
In this regard, the regulations continue the approach of having sector-specific arrangements for the NHS. Historically complaints have been raised through these sector-specific arrangements in preference to the courts. There would be no reason for this to change so long as the regulations are in place.