My Lords, Amendment 3, tabled by the noble Baroness, Lady Brinton, of Kenardington, and the noble Lord, Lord Scriven, of Hunters Bar, would, as the noble Baroness said, explicitly name the NHS in the definition of a contracting authority. We are also debating Amendment 173, to which the noble Baroness, Lady Bennett of Manor Castle, added her name, and Amendments 171 and 172, to which the noble Lord, Lord Hunt, spoke so eloquently.
There is a concern, which I understand after several meetings with those involved, about the interplay in health between this Bill and the arrangements across the NHS in the light of the Health and Social Care Act. I very much enjoyed the meetings that I had with the noble Baroness, Lady Brinton, and thank her and
the noble Lord, Lord Alton, for their kind comments on the Bill more generally, as well as my noble friends Lady Noakes and Lord Lansley. It has been a pleasure to work on this Bill across the House. I thank the noble Lord, Lord Coaker, for his comments, although we are no longer working together from the Back Benches.
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Having looked at the matter carefully, I will make some general points before I reply on the individual amendments. Parliament debated the Health and Care Act only very recently. The passing of the regulation-making power in that Act showed that Parliament recognised that, in certain instances, the NHS is a special case. We ensure that it is off the table in trade agreements, and the will of Parliament was that certain healthcare services should not be subject to our regime because there is often no market and because it creates undue bureaucracy to require NHS bodies to contract with themselves. Some of the points made by the noble Baroness, Lady Bennett, may have also been in mind.
The Bill provides for new and separate rules for healthcare services to patients and service users, although not for goods except those that are an integral part of the delivery of a clinical care services contact. I made this point in Committee, as referenced by the noble Baroness, Lady Brinton. The new provider selection scheme regulations will establish the new NHS regime in the coming months, with a new emphasis on collaboration.
That is the background. I also assure noble Lords that the Cabinet Office procurement team will be involved in signing off the new arrangements; there will be guidance on important issues; and the regulations, which are under development, will be subject to the affirmative resolution procedure in both Houses. I am sorry that we do not have either set of draft regulations for noble Lords yet, but I hope that I can give some sense of the direction. Against this background, I will comment on the amendments.
Regarding Amendment 3, there is no doubt that NHS organisations are contracting authorities. In addition to applying to only a narrowly defined subset of healthcare services, the scope of the forthcoming healthcare procurement regulations will explicitly limit the field of authorities that can use these regulations to a defined list of bodies involved in health and social care. I reassure noble Lords that the central government authorities list, which includes the NHS and which is brought within scope of the current definition of “contracting authority”, will be replicated in the operation of the Act by naming central authorities in our regulations. There are a great many contracting authorities, which change frequently over the course of time. Our international commitments call for regular updating, and it makes sense to continue to identify central government authorities in regulations and not on the face of the Bill.
Amendments 171 and 172 would significantly extend the scope of Clause 111 so that the Bill could be disapplied for contracts for all kinds of goods and services which could be said to support the integration of health and social care services. This would weaken the regulation of non-healthcare procurement by enabling
procurers to use the lighter DHSC rules when the full rules would be more appropriate, and would indeed present compliance risks with our international trade commitments.
The noble Baroness, Lady Brinton, made an important point about how the mixed contracts containing some elements of healthcare services and some of non-healthcare services need to be treated. The DHSC’s recent consultation on proposals for its new provider selection regime acknowledges the need for integrated procurement, such as combined health and social care services. Integrated procurement supports greater collaboration between the NHS and its partners, which in turn supports more joined-up care for people, including those with complex needs. I think we all agree that this is important.
Existing procurement legislation and the provisions in the Bill provide for mixed procurement approaches to ensure that there is clarity on which rules apply when contracts involve a mixture covered by different legal regimes. My officials have worked closely with the DHSC to ensure that the healthcare regulations address mixed procurement harmoniously with the provisions of the Bill.
We expect the wider Cabinet Office rules to apply to mixed contracts that involve a provider selection regime element and another healthcare or non-healthcare element if those elements could reasonably be supplied under separate contracts. If they could not be, the Cabinet Office rules will apply where the non-provider selection regime element has the higher value.
Amendment 173 comes from a different angle. It would delete the power at Clause 111 to disapply the provisions of the Bill to certain healthcare services that are in scope of the regulation-making powers in the Health and Care Act 2022, and make the Bill, when it is an Act, apply as well to all procurement by NHS England. I think this is a recipe for confusion.
The Procurement Act will apply to procurement by NHS England, whether it is buying goods, services or construction, but will not apply where NHS England is buying healthcare services that are to be purchased under the provider selection regime. For this flexibility to work, Clause 111 needs to disapply the Procurement Act in relation to the tightly defined subset of healthcare services to patients and service users that will be governed by the provider selection regime when procured by relevant authorities. I assure noble Lords that it will be used for this purpose only and that these limitations on usage will be set out in the forthcoming regulations.
Because of the importance of integrated care, on occasion there may be mixed contracts under the provider selection regime containing elements that, if procured separately, would have been procured under this Bill. I will work extremely closely with the DHSC to ensure that the provisions are not used to circumvent the more stringent procurement obligations in the Bill. Indeed, Clauses 4 and 9 are designed specifically to ensure that authorities are not able to design contracts to avoid the new rules. The Government will also be able to issue guidance—that is an important point—or change the regulations if the mixed contracts turn out to be a problem.