Exemption to Competition Rules

The Government has passed emergency legislation to relax UK competition law to help the economy and the NHS to meet the challenges of the Covid-19 outbreak. This note looks at the provisions which have been passed in relation to England only.

The Competition Act 1998 (Groceries) (Coronavirus) (Public Policy Exclusion) Order 2020 found here and the Competition Act 1998 (Health Services for Patients in England) (Coronavirus) (Public Policy Exclusion) Order 2020 (the Health Order) here have now both come into force, with the relevant Secretary of State making use of emergency powers to pass the exclusions from competition law without the following the usual Parliamentary process.

The Health Order enables health care providers to collaborate in ways which might otherwise breach UK competition laws during the current pandemic.  The intention behind the Health Order is to facilitate the NHS as a whole in addressing the effects or likely effects of the Covid-19 outbreak in England.   It is sometimes forgotten in the media reporting on the NHS that it is not a single entity, but rather a service formed of multiple economic operators both in the public and private sector who can fall foul of competition law requirements.

The Health Orders sets a “temporary healthcare disruption period” which commenced on 1 March 2020.  The Secretary of State will publish a notice giving 28 days’ notice, specifying when this period is due to end.

The Order will apply to an agreement that: –

• is made between: –
  • NHSE and a person (other than an NHS body) that provides services for the purposes of the NHS (Independent Provider) or an association of an Independent Providers;
  • One or more NHS bodies (other than NHSE) and an Independent Provider or Providers; or
  • two or more Independent Providers.
• relates to a qualifying activity;
• is notified to the Secretary of State;
• meets certain conditions; and
• is entered during the temporary healthcare disruption period.

A qualifying activity relates to any one or more of the following activities: –

• sharing information relating to capacity for proving health services of a certain type, including information regarding staff and facilities;
• the deployment of staff between NHS bodies and Independent Providers or between Independent Providers;
• sharing or loan of facilities for the provision of health services;
• the joint purchasing of goods, materials, vehicles, plant, apparatus, facilities or services (including the services of staff), for the purpose of the provision of health services; and
• coordinating the provision of health services of an activity or type of activity either generally or within a certain geographical area to be carried out by an Independent Provider or an NHS body.

There are conditions relating to the sharing of information as set out in the Health Order.   The Health Order should remove some potential legal barriers which may have otherwise impeded the delivery of services in these extraordinary circumstances.

The Secretary of State will keep and maintain a register of the agreements that have been notified under the Order. The register will be published when it is first compiled and each time it is revised.

In terms of commercial, procurement or commercial law, the legal landscape of the NHS is fast moving in reaction to Covid-19 and further updates will appear on our Covid-19 portal as these occur.