Health minister Earl Howe has insisted government assurances given during the passage of the Health Act on competition rules remain intact, after new regulations sparked accusations of backdoor privatisation of the NHS.

In recent days campaigners, the Liberal Democrats and Labour have raised concerns that procurement regulations published this month will open up the NHS to privatisation. Both the Liberal Democrats and Labour want the regulations dropped.

Ministers yesterday pledged to review them. In March 2012, during the passage of the Health Act, ministers said commissioners “would be under no legal obligation to create a new market”. But doubts have been raised over whether the secondary legislation, laid before Parliament earlier this month and set to go live from April, enshrine this principle.

Speaking exclusively to HSJ at a Reform event yesterday, Lord Howe said: “The assurances given by both [then health secretary] Andrew Lansley and myself when the Health and Social Bill was going through parliament stand absolutely today. There has been no change of approach at all.”

The minister added that he would “reflect” on concerns raised by the Liberal Democrats and was potentially “open” to improvements.

“We are making sure that we have got the wording absolutely right and clear. The legal advice is that we have got the wording right but I am always open to better ideas about how we can improve it and that’s what I think I should do,” he said.  

However, he implied that if Monitor felt that CCGs had taken procurement decisions which were not in “the interests of patients”, there were occasions when Monitor could overrule commissioners.

“[Monitor is] there to protect the interest of patients and police anti-competitive conduct and make sure that the procurement decisions that are made are genuinely in the interests of patients.

“They are not there to second guess commissioners’ decisions where these are in the interests of patients,” he explained - suggesting if the reverse was true, the watchdog could step in. 

The regulations said CCGs should consider NHS providers on the same basis as private providers – a move critics said will promote independent providers.     

The regulations said: “[CCGs] must treat providers equally and in a non-discriminatory way, including by not treating a provider, or type of provider, more favourably than any other provider, in particular on the basis of ownership.”

Lawyers have told HSJ the new regulations will make it easier for independent sector providers to get contract decisions overturned by Monitor if they feel they should have been open to tender.

The rules ban “any restrictions on competition that are not necessary”.

They say contracts can only be awarded without tender for “technical reasons, or reasons connected with the protection of exclusive rights” or for “reasons of extreme urgency”.

One health service lawyer told HSJ: “I think this is a real move towards privatisation, towards opening up a market.”

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