My Lords, I welcome these regulations. They get the NHS off the hook from inappropriate compulsory competitive tendering of clinical services but also avoid throwing the baby out with the bathwater. Open procurement will remain an option where it is in patients’ and taxpayers’ interests.
In my previous experience, there have been several problems with the way in which the accretion of UK procurement rules and the EU procurement regime have tied the hands of the NHS. We have often had to go through the motions of competitive clinical procurements for services that would quite obviously be provided only in one place and by one part of the NHS—for example, billions of pounds-worth of specialised cardiac and cancer services for which it was blindingly obvious that the Germans and Italians would not turn up and try to replace Leeds General Infirmary or St Thomas’ Hospital. These regulations make these processes honest, in that when we embark on procurements, it will be for a good reason.
A related problem is that the legacy procurement rules have tended to lead to too much service fragmentation. We have seen examples where community nursing services have had to be tendered out but core general practice services have not, so getting the community nurses and GP practices working together has been much harder. One of the fragmenting consequences of the 2012 Act was that a lot of what had previously been NHS services became local authority-procured, and so sexual health services and health visitors were operating on a different procurement process through local authorities rather than through the local NHS. The Health and Care Act 2022 and these regulations overcome that problem. The NHS will still be subject to transparent and fair procurement, but it will now be much more flexible and proportionate.
The regulations are quite complex. Those noble Lords who have read through the materials may agree that it is fair to say that they will not command the attention of the pubs and clubs of Barnsley or Barnstaple, but they will make a huge difference to the way in which care is delivered right across the country.
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The five routes the Minister spoke about—the direct award processes A, B and C, the most suitable provider process and the competitor process—are conceptually all very clear, but the real-world impact will depend almost entirely on how they are applied. It is welcome to see some of the safeguards laid out in these regulations—the prior notification, standstill periods and independent review panel—but it will also be crucially important to monitor in practice when the so-called most suitable provider process is being used rather than the competitor process, how the specifications are set and how the criteria for contract awards are in practice weighted.
That is all for the implementation. The Government cannot be accused of having acted over-expeditiously on this one. The consultation first began in 2019, was repeated in 2021 and again in 2022, and we really are ready to roll. As I say, my experience in the health service was that I always tried to have in my mind the mantra, “Think like a patient, act like a taxpayer”. In my judgment, these new regulations give the NHS some better tools to do exactly that.