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Procurement and competition rules

Can the NHS be exempted?


In this briefing, The King’s Fund seeks to clarify whether a new government could extract the NHS from European Union procurement and competition rules.

How the rules apply to the NHS is an issue fraught with confusion and disagreement. Equally, opinions differ over how much room for manoeuvre any government would have in exempting the NHS from them – an ambition recently expounded by Shadow Secretary of State for Health, Andy Burnham, in a speech at The King’s Fund.

This briefing aims to clarify the current situation and assess what policy changes would be required should a new government wish to insulate the NHS from the application of the rules. It comprises:

  • an introduction to the debate over the rules

  • discussion of EU and UK procurement law, including how planned changes will affect procurement from 2016

  • discussion of EU and UK competition law, including the extent to which competition rules really affect providers.

The briefing – which does not constitute formal guidance – concludes that it is not possible to exempt the NHS from EU procurement and competition law. It does, however, suggest that the same aim could be achieved by making broader changes to policy, including bringing foundation trusts clearly back under the direct control of government.