The Health Service Procurement (Wales) Bill

Next week, the Health Service Procurement (Wales) Bill finishes Stage 3 with a debate on amendments before the Senedd.

This is not a Bill which aims to fulfil the Welsh Government’s Programme for Government. Rather, it is a framework Bill in response to the UK Government’s Procurement Bill 2023, which is proposing a “light touch regime” for certain services that will not be subject to previous public contracts regulations. This includes health services.

The UK Government’s Procurement Bill provides an opt-out clause for the exemption of health care services from the new procurement regime. Instead, health services could use an option outlined in the Health and Care Act 2023 – the Provider Selection Regime – which is intended to move away from competitive tendering and towards collaboration and partnership.

However, this opt-out clause only applies to English Ministers.

The Welsh Minister for Health wants to reproduce this opt-out clause for Wales, so that the Welsh Government can decide, once the Provider Selection Regime’s details have been confirmed, whether it wants to introduce similar procurement arrangements for Welsh health services. This option could also avoid potential disruption when procuring services from English providers and vice versa as similar procurement schemes could be used.    

The Bill itself gives Welsh Ministers two powers:

·       A disapplication power, giving Welsh Ministers the ability to disapply parts of the Procurement Act that would apply to Welsh NHS services; and

·       A creation power, which allows Welsh Ministers to introduce a new separate procurement regime for those NHS health services in Wales.

 

Response from Welsh Health Providers:

Those stakeholders who provided evidence during Stage 2 of the Bill were broadly supportive of what it is aiming to achieve for greater flexibility, as well as alignment between Welsh and English health procurement regimes. It was recognized that there is a dependency between the Provider Selection Regime in England and new procurement arrangements in Wales.

However, they wanted assurances from Welsh Government that it would identify and make the most of any potential opportunities for Wales, as well as how these fit with the Minister’s vision for the future operation of health service procurement.

It was also highlighted that there were existing barriers within the current health service procurement regime in Wales, including a patchwork of contracting arrangements at local, regional and national levels; insufficient joined-up thinking and joint working in the health and social care sectors; short term funding and delayed funding decisions; regulatory barriers and variation across health boards on ways of working.

 

Political reception

Welsh Conservatives broadly welcomed the aim of the Bill – that of providing a level playing field and ensuring decisions on health procurement are being made in Wales – but noted that there were significant delegated powers for the Minister under the Bill, with little information about how they would be used.

Plaid Cymru claimed the Welsh Government was opening the door to privatisation through the Bill, as the UK’s legislation was to enable the outsourcing of more and more NHS services. They also noted that this was a framework Bill with little information on how powers would be applied. However, they also supported the Bill as evidence showed that introducing this would be a kind of “insurance policy”.