In relation to competition law
, the Department has asserted that “competition lawwould apply where it applies, with or without this Bill”.
I note that the Department has not really sought to undermine the reasoning I haveapplied in order to reach my conclusions. Although the Department lists fourpoints which it believes support the contention that PCTs do not currently fall
within the definition of “undertaking” for the purposes of competition law, it has
wholly failed to address the likely position arising from the enactment of the Billor indeed, the general but crucial point that it is more likely that competition lawwill apply to the NHS with an increased involvement of the commercial sector asprimary care providers and through the extension of the Any Qualified Providerpolicy. Of course, whether or not competition law is applicable to the NHS, bothnow and after any reforms, is ultimately a matter for the Courts.
Guy Opperman MP: The falsehood of the 38 Degrees campaign on health
Mr Opperman makes the point that since my advice concerning procurement lawwas that procurement law already applies to the NHS, nothing will change as aresult of the Bill. Although I did make the point that procurement law alreadyapplies to NHS purchasing, and will continue to apply, I also reached andcontinue to hold the considered view, based on my experience as a procurementpractitioner, that by far the greatest impacts of the application of procurement lawto the NHS which will emerge from the Bill are wholly practical in nature owingto the complexity and the regulatory and administrative burden involved incompliance. Given that there might be no or insufficient incumbent expertise inprocurement in the new consortia, there is a very real risk that the functioning of consortia is compromised, at least initially, by the sheer regulatory burdeninvolved, under threat of potentially draconian remedies available to unsuccessfulbidders through litigation.7.
In dealing with the applicability of competition law, Mr Opperman appears tosuggest that it was my assertion that domestic competition law derives from Tony
Blair’s government. That is incorrect. Domestic competition law has existed for
some considerable time but was reformed and brought into line with European