By Prof Albert Sanchez-Graells, Professor of Economic Law (University of Bristol Law School).
One of the relatively recent developments in the post-Brexit review of UK public procurement law is the February 2021 proposal for the replacement of the current rules on the commissioning of healthcare services for the purposes of the English NHS (for background, you can watch here), with a new provider selection regime (‘the proposal’). This proposal forms part of the broader set of proposed reforms contained in the Health and Care Bill 2021-22 (on which the House of Commons Library has published a useful research briefing).
By Dr Albert Sanchez-Graells, Reader in Economic Law and Member of the Centre for Health, Law, and Society (University of Bristol Law School).
As Brexit day approaches and the UK and the EU fail to complete their negotiations for a withdrawal and transition agreement to ensure an ‘orderly Brexit’, more and more voices will raise strong concerns about the impact of a no-deal Brexit for important sectors of the UK economy and public sector. In a leaked letter, the trade association of NHS providers sent a clear warning message to the public bodies in charge of running the English NHS (NHS England and NHS Improvement). As widely reported by the press, NHS providers made it clear that poor co-ordination by ministers and health service bosses means there has been a failure to prepare for the UK to be left without a Brexit deal, and that this could mean “both stockpiles and shortages of medicines and medical devices”.
NHS providers have thus requested that the Department of Health and Social Care, NHSE and NHSI accelerate preparations for a no-deal Brexit. In this post, I argue that there is very limited scope for no-deal preparations concerning medical equipment and consumables, and that this can have a very damaging impact on the running of the NHS post-Brexit, given that it annually spends approximately £6 billion on goods (such as every day hospital consumables, high cost devices, capital equipment and common goods). (more…)
By Dr Albert Sanchez-Graells, Senior Lecturer in Law (University of Bristol Law School).
NHS England spends over £20 billion every year on goods and services, which typically accounts for around 30% of the operating costs of each hospital. A significant part of the remainder of NHS non-salary budget involves the commissioning of health care services. This expenditure and commissioning is controlled by NHS procurement rules, which in part derive from EU law. Different procurement rules apply in different countries within the UK, and both Scotland and Northern Ireland both have separate regulatory schemes. Even though this post only focuses on the situation in England, some issues reflect broader concerns in the UK context. Generally, NHS procurement rules are regularly criticised for imposing excessive red tape and compliance costs on the NHS, and calls for NHS procurement reform to free it from such strictures are common.
In this context, Brexit could be seen as an opportunity to overhaul NHS procurement and to move away from the perceived excesses of EU law (see eg Cram: 2016). However, I think that it is far from clear that such reform could not fit within the blueprint of EU law, and that most of the constraints on NHS procurement rather derive from independent decisions adopted by the UK over the last 25 years. Moreover, from an economic perspective, Brexit will probably hurt the functioning of the NHS (including its procurement), with or without significant regulatory reforms.
This post is based on my presentation at the event Brexit, Regulation and Society, held by ManReg on 13 June 2017, and concentrates on two issues. First, does EU law prevent significant reforms of NHS procurement and, if so, can Brexit suppress such constraints? Second, is the way the Brexit process is unfolding conducive to an improvement of NHS procurement, both from an economic and a regulatory perspective? (more…)