This presentation discusses some of the potential impacts that Brexit and the June 2017 election can have for NHS procurement in England. It was used in the Brexit, Regulation and Society Seminar held by ManReg in Manchester on 13 June 2017.

1. Scoping the impact of Brexit
for NHS procurement
Dr Albert Sanchez-Graells
Senior Lecturer in Law
Brexit, Regulation and Society
ManReg, Manchester, 13 June 2017
13 June 2017
1Brexit & NHS Procurement

2. Agenda
• To try to identify potential impacts of Brexit on
NHS procurement
• To disentangle domestic regulatory choices from
EU requirements or restrictions
Brexit & NHS Procurement 2
13 June 2017

3. Starting point, where were we before Brexit?
• NHS procurement has been characterised by a peculiar
purchaser-provider split since the 1990s
• Aim of creating an “NHS internal market” to generate
competition-based incentives to improvement in service
delivery & cost management
• Ever evolving system (‘continuous revolution’ Maynard:2016)
that has created increased scope for public-private
competition (Odudu: 2012; Hunter: 2016)
Brexit & NHS Procurement 3
13 June 2017

4. Starting point, where were we before Brexit?
• NHS procurement is primarily covered by two sets of
domestic rules (+ large volume of soft law)
• Public Contracts Regulations 2015 (grossly misunderstood)
• Health and Social Care Act 2012 + NHS (Procurement, Patient
Choice & Competition) No 2 Regulations 2013
• Given its organisation as a (mixed) market, it is also
subjected to a host of EU and UK competition rules
• CA 1998, EA 2002 + TFEU, including State aid (for SGEIs)
Brexit & NHS Procurement 4
13 June 2017

5. Could Brexit alter the situation?
• In structural terms, mostly not
• “leaving the EU is an irrelevance when it comes to what many
regard as the creeping marketisation of the NHS” (Hunter:
2016; McKenna: 2016; Taylor: 2016)
• But it could indeed have negative operational impacts
• If “NHS internal market” kept -> impact on private
competition in healthcare provision, incl. healthcare
insurance
• Even if “NHS internal market” dismantled, acquisition of
equipment & supplies could face barriers & costs (Hall: 2017)Brexit & NHS Procurement 5
13 June 2017

6. Brexit … one year after
• It is simply unavoidable to point out to existing
uncertainty (Simpkin & Mossialos: 2017)
• Brexit White Paper (Feb 2017)
• “We will not be seeking membership of the Single Market, but will
pursue instead a new strategic partnership with the EU, including an
ambitious and comprehensive Free Trade Agreement and a new
customs agreement.”
• Great Repeal White Paper (March 2017)
• Only one mention to procurement as example of ‘negative procedure’
Brexit & NHS Procurement 6
13 June 2017

7. Brexit … one year after
• Economic effects of Brexit are starting to be felt (ONS)
• Made worse by GE of 8 June 2017 (!?)
• Making any predictions about the stability of the Tory/DUP
(minority/coalition) government is excessively risky
• This may trigger a crisis of government and alter on-going
plans
• Also possible that ‘technical’ reforms carry on as planned
Brexit & NHS Procurement 7
13 June 2017

8. What plans for the NHS post-Brexit?
• Conservative manifesto 2017
• “A Britain in which the economy is strong to support
world-class public services, with the most ambitious
programme of investment in people, technology
and buildings the NHS has ever seen”
• “the most ambitious programme of investment in
buildings and technology the NHS has ever seen”
Brexit & NHS Procurement 8
13 June 2017

9. What plans for the NHS post-Brexit?
• Conservative manifesto 2017
• “… we will consult and make the necessary legislative
changes. This includes the NHS’s own internal
market, which can fail to act in the interests of
patients and creates costly bureaucracy. So we will
review [its] operation … and, in time for … the 2018
financial year, we will make non-legislative changes
to remove barriers to the integration of care”
Brexit & NHS Procurement 9
13 June 2017

10. (How) can this be achieved?
• Experimentation through STPs* that suppress
the purchaser-provider split
• Stevens (CEO NHS England): STPs “will for the first
time since 1990 effectively end the purchaser-
provider split, bringing about integrated funding and
delivery for a given geographical population”
• Is this possible and/or desirable? (Hare:2017)
* sustainability and transformation plans, including accountable care organisations (ACOs)
Brexit & NHS Procurement 10
13 June 2017

11. Would the NHS not have to comply with
procurement rules at all?
• This is a highly unlikely scenario
• Even if purchaser-provider was suppressed (thus, potentially
allowing for a derogation of the NHS Regs (No 2) 2013), the
NHS would still need to buy from the market
• What would be the effect on supply chains?
• This would be particularly relevant in terms of physical and IT
architecture
• Given UK tradition: PPPs? Concessions?
Brexit & NHS Procurement 11
13 June 2017

12. References
• Hall, “Brexit: Its Impact on Procurement and Buying in the NHS?”, J of mHealth, Jan 19, 2017
• Hare, “The end of the purchaser/provider split?”, NHS Confederation, March 14, 2017
• Hunter, “Does the NHS still reside in a grey area for EU competition law?”,
UKiCE, April 6, 2016
• Iacobucci, “STPs will end purchaser-provider split in parts of England, says NHS chief”,
BMJ 2017;356:j1125
• Maynard & Dixon, “Should the NHS abolish the purchaser-provider split?”,
BMJ 2016;354:i3825
• McKenna, “Five big issues for health and social care after the Brexit vote”,
King’s Fund, Jun 30, 2016
• Odudu, “Competition law and the National Health Service”, Competition Bulletin, Oct 8, 2012
• Simpkin & Mossialos, “Brexit and the NHS: Challenges, uncertainties and opportunities”,
(2017) 121 Health Policy 477-480
• Taylor, “Brexit and NHS competition and procurement rules”, NHS Competition Regulation,
Jun 28, 2016
Brexit & NHS Procurement 12
13 June 2017

13. Thank you for your attention
Be in touch
a.sanchez-graells@bristol.ac.uk
www.howtocrackanut.com
@asanchezgraells
Brexit & NHS Procurement 13
13 June 2017