Labour's deputy leader and health spokesman in the Lords, Lord Hunt of Kings Heath, tabled the so-called 'fatal motion' to annul the England regulations to be debated on 24 April.
Lord Hunt believed opposition could build momentum in the coming weeks. He called the DH's defence of the regulations in response to critical legal opinion 'disingenuous' as it 'ignored the new context in which the NHS is being run'.
He said section 75 would force all NHS services out to tender and that there was convincing evidence that a market was being developed for health services.
Speaking to GP, he said: 'It's clear that the only defence for not putting services out to tender is if only a single provider could provide those services. The DH thinks you could use that as a reason to not tender for services. But the legal advice we have is that that is a very narrow test and CCGs will be getting advice from their solicitors that in order to safeguard against legal challenge they must put many services out to tender.'
Lord Hunt said he was working flat out to build support, particularly from Liberal Democrat peers for whom he said the vote would be a 'crucial decision'.
The GPC has demanded the regulations be withdrawn. Deputy chairman Dr Richard Vautrey said the changes since the first draft did not go far enough to reassure CCGs they would have the freedom to procure in the way they want.
Health minister Lord Howe said: 'Legal opinions that suggest the regulations force competitive tendering are misleading and wrong. Requirements have not changed from those that have applied for a number of years - commissioners do not have to competitively tender all services.
'It is also misleading to suggest commissioners could face legal challenges under these regulations - any challenge would be to Monitor by way of judicial review.
'Decisions on whether to introduce greater competition, including extending any qualified provider models, are entirely for local commissioners.'
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