It is "extremely unlikely" an incoming government would be able to exempt the NHS from EU procurement law, according to the King’s Fund.
The think tank has produced a report in response to a commitment from the Labour Party to repeal the procurement and competition provisions in the Health and Social Care Act 2012, while in a speech to the King’s Fund in January shadow health secretary Andy Burnham committed to “claiming a full exemption for the NHS from EU procurement and competition law”.
In the report the King’s Fund said there was “widespread confusion regarding what the rules mean and how to comply with them” and “commissioners are unsure whether they need to run formal tendering processes to select new service models”.
The report said it was “clear that the government would be entitled to repeal Part III of the Health and Social Care Act 2012 and, along with it, the Procurement, Patient Choice and Competition Regulations 2013”.
“However, it seems equally clear that simply repealing the NHS regulations would not be enough, since commissioners would still need to comply with the EU procurement rules, at least whenever they enter contracts with foundation trusts or other independent bodies,” said the report.
The report said it was “extremely unlikely that the government would be able to negotiate an exemption for the NHS from those EU rules” and “it is almost impossible to overestimate the political, legal and practical obstacles it would need to overcome”.
However, the King’s Fund said the government could “extract commissioners from tendering obligations” by “bringing health services, specifically foundation trusts, more firmly back within the public sector”, because EU procurement law applies to public sector bodies when they establish contracts with external suppliers.