Labour’s deputy leader and
health spokesman in the Lords, Lord Hunt of Kings Heath, tabled the so-called ‘fatal motion’ to annul the regulations which will be debated on 24 April.
Lord Hunt told GP while it was rare to table a ‘fatal motion’, he believed opposition to the regulations could build a momentum in the coming weeks.
He called 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, alongside wider health reforms including ‘any qualified provider’, there was convincing evidence that a market was being developed for health services.
Speaking to GP, he said: ‘If you look at these regulations, it’s absolutely 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.’
DH’s assurances were ‘warm words’, he added, ‘but they are not worth very much’.
Lord Hunt said he was working flat out to build support for the motion, particularly from Liberal Democrat peers for whom he said the vote would be a ‘crucial decision’ after they backed the health reforms based on assurances which had not been met.
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.
'To be absolutely clear, deicisons on whether to introduce greater competition - including extending any qualified provider models - are entirely for local commissioners.'