ICO orders Department of Health to disclose legal advice on application of EU competition law to NHS

October 5, 2011

The Information Commissioner has ordered the Department of Health to disclose legal advice on EU competition law given to ministers in relation to a key part of the Health and Social Care Bill.

The complainant wrote to the Department of Health in April in the following terms:

“What legal advice was given to the Secretary of State or other Ministers in the Department about the implications of “any willing provider” in the Health and Social Care Bill on EU competition law or EU procurement law either for the Explanatory Notes or at any time? And
I would also like to seek information on the legal implications for the replacement wording ‘any qualified provider’?”

In its response the Department said legal advice was integral to its advice to ministers on the introduction of the Bill. But it said that no separate legal advice was commissioned by officials on the impact of the Bill upon the application of EU competition law to the NHS.

The Department added that legal advice was sought in 2007 on the application of EU competition law during the process of setting up the Cooperation and Competition Panel (CCP). It argued that the 2007 advice was exempt from disclosure due to legal professional privilege.

The DoH also said that advice to ministers was exempt from disclosure under s. 35(1)(a) of the Freedom of Information Act as it related to formulation of government policy.

The complainant then asked for an internal review of the Department’s decision.

After carrying out the review, the DoH told the complainant that legal advice relating to the implications of “any willing provider” on EU competition or procurement law had not been the subject of submissions to ministers. It said it therefore did not want to rely upon s. 35(1)(a).

The Department also explained that specific legal advice on the application of EU competition law to the NHS was commissioned by officials at the time the CCP was established. It said the advice was exempt under s. 42 FOIA (legal professional privilege). The DoH also confirmed that the information in part 2 of the request was not held.

The complainant then wrote to the Information Commissioner to complain about the handling of his request, and to ask whether the Department was correct in withholding the legal advice.

The Information Commissioner concluded that:

There was a very strong public interest in promoting openness, transparency and accountability in the DoH’s decision making processes, “particularly in relation to changers to the NHS as it impacts such a large number of people”
There was a high level of interest in how the NHS is organised and who delivers services
There was a very strong public interest in allowing the public to be fully informed when legislation such as the Bill is being debated, “enabling them to fully engage in the debate”
He had taken into account the public debate taking place about the competition aspects of the Bill at the time the request was made and the extent of information available to the public that would enable them to understand the government’s position on the implications of the Bill in terms of EU competition law
He had considered the argument that there was already information in the public domain about EU competition law and the NHS from different sources “but this does not negate the public interest in the public seeing the legal advice the government holds on the matter”
The complainant had argued that once the private sector expanded and the state’s provision reduced in the NHS, EU competition law may become more prevalent
The Commissioner did consider there was a very strong public interest in the DoH being able to obtain full and thorough legal advice to “enable it to make legally sound, well thought out and balanced decisions without fear that this legal advice might be disclosed into the public domain”
He considered that disclosure might have a negative impact upon the frankness of legal advice provided “and may even have an impact upon the extent that legal advice is sought”. This could in turn have a negative impact on the quality of decisions made by the DoH which would not be in the public interest
He did not accept that disclosure would lead to the DoH or its legal advisers failing to record legal advice thoroughly in the future.

The Information Commissioner acknowledged that it was “a finely balanced case”. However, he ruled that the public interest in maintaining the exemption did not outweigh the public interest in disclosure.

A spokesman for the Department of Health said it was currently considering whether or not to appeal the Information Commissioner's decision.

The application of competition law to the NHS has been a controversial issue throughout the summer. In August campaign group 38 Degrees published a legal opinion that claimed that reforms in the Bill would increase competition within the NHS at the expense of collaboration and integration and/or make it "almost inevitable" that UK and EU competition law would apply.

38 Degrees said the likelihood of the courts finding NHS services fall within the scope of UK and EU competition law would be further increased by other government NHS policies, such as the extension in July 2011 of the right of Any Qualified Provider to be given a contract to deliver health services.

The campaign group also claimed that the new commissioning groups created by the Bill would be subject to "costly" EU procurement rules when they commissioned local health services, and that the plans would lead to a system geared heavily in favour of private companies.

It warned that it was unclear whether commissioning groups would have the procurement expertise to deal with complex procurement processes and avoid legal action from disgruntled bidders. "This could mean that the NHS ends up spending a lot of time and money fighting legal action instead of investing in patient care," 38 Degrees said. "Or worse, it could mean they are reluctant to commission any services for fear of being sued."

In its response the Department of Health said it did not agree with all the conclusions reached – in particular about the capacity and capability of commissioners to comply with procurement law and the steps being taken to address this.

"We have never said that competition law doesn't apply to the NHS or that the Bill would prevent it applying," the DoH said. "On the contrary, we have consistently said that competition law would apply where it applies, with or without this Bill. However, we have also acknowledged that there is legal uncertainty as to when competition law would apply in the NHS due to the absence of relevant case law."

The Department also rejected allegations from 38 Degrees that the Bill would do nothing to prevent "cherry-picking" by private health providers.

Philip Hoult