The important point is that the impact of competition law applying has not yet been properlydebated. In addition, whether something should be done to prevent competition law applyinghas also not been properly debated or thought through.
As paragraph 45 the advice  – although I am not entirely sure that any lawyer has sufficientexpertise to offer an opinion in this area – the principal concern is instead a practical one owingthe administrative burden on consortia to comply with a competition regime which alreadyapplies. That is an existing administrative burden, but it follows that the conclusion itself is amillion miles from what you may have been led to believe the advice says by the 38 Degreeswebsite.
Once again, it seems that Mr Phillips has mixed up
.Paragraph 45 of the legal opinion is clearly discussing
law. As mentioned above, itis the applicability of procurement law to increased numbers of inexperienced commissioningconsortia where the administrative and financial burden arises. Furthermore, as the legalopinion points out, it is experienced commercial providers with deep pockets that stand to gain.
“Given that there might be no or insufficient expertise in procurement in consortia, there is a very real risk that the functioning of consortia is compromised, at least initially, by the sheer regulatory burden involved, under threat of potentially draconian remedies available to unsuccessful bidders through litigation. Commercial providers on the other hand will already be familiar with and are likely to have had considerably more experience of the procurement regime.” (para.45)
Once again, Mr Phillips fails to deal with either of these points.
The Secretary of StateThe second advice prepared by junior Counsel deals, in essence, with the existing general dutiesof the Secretary of State. The 38 Degrees summary in this regard suggests that there is somefundamental change between what is proposed and the current regime.
Yes we do! There is a fundamental change. Our legal advice supports this:“
It is clear that the drafters of the Health and Social Care Bill intend that the functions of the Secretary of State in relation to the NHS in England are to be greatly curtailed. The most striking example of this is the loss of the duty to provide services pursuant to section 3 of the NHS Act 2006, which is currently placed on the Secretary of State. This will be transferred to the commissioning consortia, and reformulated accordingly. In real terms this means that,effectively, the government will be less accountable in legal terms for the services that the NHS provides.” (Bullet 1, executive summary)
In fact however, as paragraph 2 of this opinion makes clear in its first sentence, “Currently, theduty in section 3(1) has been delegated to the Primary Care Trusts.” This duty (in section3(1) ofthe 2006 Act) is a duty as to the provision of ‘certain services.’ It is more specific than the generalor target duty in section 1(1) to promote a ‘comprehensive health service,’ but is still a generalduty as paragraph 9 of the opinion points out. It is, as that paragraph also makes clear, the mainduty in relation to the provision of health services and, as already noted (and as per paragraph 3of the Executive Summary of the opinion), is currently delegated to the PCTs which theGovernment proposes abolishing.  That duty will then fall to the commissioning consortia whichwill be established. Other than changing commissioning responsibilities from PCTs to consortia, it