NHS Long-term Plan: Dr Albert Sanchez-Graells submits evidence to House of Commons Committee

Press release issued: 4 April 2019

The Law School's Dr Albert Sanchez-Graells has submitted written evidence to the House of Commons Health and Social Care Committee in the inquiry on legislative proposals put forward to support the implementation of the NHS long-term plan. In his evidence he warns that proposed legislation would result in significant de-regulation, removing important checks and balances without identifying alternative regulatory frameworks.

In his written evidence, Dr Albert Sanchez-Graells addresses proposals relating to existing competition law and public procurement legislation, placing them in the context of the ‘NHS internal market’, which is based on a purchaser-provider split created to provide competition-based incentives to improve service and cost management.

“The legislative proposals to support the implementation of the NHS Long-term Plan seek to effectively exempt the ‘NHS internal market’ from competition enforcement and oversight and to exempt the award of contracts between NHS entities from compliance with procurement law, which would be replaced by an unspecified new ‘best value’ test.”

The evidence discusses the difficulties raised by the proposal's justification of such an exemption. Touching on post-Brexit reform and how such proposals are currently legally inviable, it also points out that the ‘potential advantages’ suggested by the proposals are already achievable under current rules.

In a section on NHS procurement, Albert’s submission states that “[i]t is worth stressing that the procurement rules applicable to NHS expenditure seek to ensure the integrity of the procedures for the award of contracts and the achievement of value for money in a manner consistent with the patients’ interest.

Suppressing procurement-related requirements could thus result in an erosion of the integrity and the efficiency of the system and, ultimately, in risks of maladministration of public funds. The substitution of existing mechanisms for largely equivalent mechanisms would not improve procurement governance and would create unnecessary costs.”

Ultimately, the evidence highlights that the plan’s suggested “changes would not result in a dismantling or transformation of the ‘NHS internal market’, but in its almost complete de-regulation.

This would remove important checks and balances and could result in NHS Improvement’s and NHS England’s unfettered discretion in the operation of the ‘NHS internal market’, with unforeseeable effects in terms of its performance and the adequate governance of the NHS. These would be undesirable changes to the existing legal framework, which the Committee should oppose.”

Read the full submission online: Written Evidence to the House of Commons Health and Social Care Committee’s NHS legislation inquiry

A paper by Albert entitled ‘Centralisation of Procurement and Supply Chain Management in the English NHS: Some Governance and Compliance Challenges’ was recently published in a special issue of the Northern Ireland Legal Quarterly legal research journal.

Further information

Dr Albert Sanchez Graells is a Reader in Economic Law at the University of Bristol Law School. He is a specialist in European economic law, with a main focus on competition law and public procurement. He is also interested in general issues of sector regulation and, more broadly, in the rules supporting the development and expansion of the European Union's internal market. He takes a law and economics approach to his research and is particularly keen on the analysis of the systems of incentives and enforcement mechanisms that law creates or facilitates.

The Centre for Health, Law, and Society (CHLS) promotes cross-disciplinary and cross-sector perspectives on the impacts of law and governance on physical, mental and social wellbeing. Based within the University of Bristol Law School, the CHLS comprises leading scholars whose work focuses on wide-ranging practical areas from within and far beyond health care systems, including clinical medicine, reproductive care, mental health, social care, and public and global health.