Y Pwyllgor Iechyd a Gofal Cymdeithasol
Health and Social Care Committee30/03/2023
Aelodau'r Pwyllgor a oedd yn bresennol
Committee Members in Attendance
|Gareth Davies AS|
|Jack Sargeant AS|
|Jenny Rathbone AS||Yn dirprwyo ar ran Sarah Murphy|
|Substitute for Sarah Murphy|
|Joyce Watson AS|
|Russell George AS||Cadeirydd y Pwyllgor|
|Rhun ap Iorwerth AS|
Y rhai eraill a oedd yn bresennol
Others in Attendance
|Dafydd Evans||Llywodraeth Cymru|
|Eluned Morgan AS||Y Gweinidog Iechyd a Gwasanaethau Cymdeithasol|
|Minister for Health and Social Services|
|Leanne Roberts||Llywodraeth Cymru|
|Mari Williams||Llywodraeth Cymru|
|Nick Lambert||Llywodraeth Cymru|
Swyddogion y Senedd a oedd yn bresennol
Senedd Officials in Attendance
|Claire Morris||Ail Glerc|
|Gareth Howells||Cynghorydd Cyfreithiol|
|Robert Lloyd-Williams||Dirprwy Glerc|
Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.
The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.
Cyfarfu’r pwyllgor yn y Senedd.
Dechreuodd y cyfarfod am 09:30.
The committee met in the Senedd.
The meeting began at 09:30.
Bore da, good morning. Welcome to the Health and Social Care Committee this morning. This meeting, as always, is bilingual, and I move to item 1. We have apologies this morning from Sarah Murphy, and welcome Jenny Rathbone, who's substituting for Sarah this morning. If there are any declarations of interest, please say now. No. In that case we move to item 2.
Item 2 is in regard to the Health Service Procurement (Wales) Bill, which has been referred to our committee for Stage 1 scrutiny. I'd like to welcome the Minister for Health and Social Services this morning and her officials. So, perhaps, if I ask officials to introduce themselves for the public record.
Mari Williams, Welsh Government legal services health team.
Morning. I'm Leanne Roberts. I'm the policy lead for healthcare procurement reform.
Eluned Morgan, health and social services Minister for Wales.
Dafydd Evans, senior responsible officer for the Bill.
Nick Lambert, Welsh Government legal services, Treasury team.
Thank you very much. Welcome back to some of the panel, who were with us for a technical briefing. We appreciate that, Minister. That was very helpful in our early discussions of the scrutiny process. So, thank you for that. Perhaps I'll ask the Minister: what does the Government want to achieve from this Bill? What's the Government seeking to achieve?
In order to answer that, if you don't mind, I'll just give a little bit of a background to how we came here, because it is a little bit complicated, and this is not the most exciting Bill you will have had in front of you as a committee. So, what happened is, after we left the European Union, the UK Government said, 'Look, we'll do things differently when it comes to procurement.' And the health team in the UK Government said, 'Oh, well, you know what? We might want to carve ourselves out of whatever you're going to do with the rest of the economy. We want something specific for health, and we want to do things differently for health.' And, as it happens, there was the Health and Care Act 2022 that was going through Parliament. They, therefore, effectively, have written something so that they can have a separate selection regime, so a separate procurement approach from the rest of the economy.
Now, because health is devolved, that was effectively an English-only Bill, so they just cracked on with that and didn't actually think about the implications for us, and obviously we live cheek by jowl with the English NHS. They have a huge market, we have 3 million people that we have to service. So, suddenly, we're in a situation where we're going to find ourselves in a different procurement place from England, and there are potential implications for that. So, what we're doing here is we're plugging a gap that has been created by some of the actions that have happened in England, and allowing us the opportunity, should we wish, to align ourselves to the new health procurement regime in England. Now, the problem is they're still going through that process at the moment, so we're not quite sure where it's going to land, in terms of what's going to be covered, but what we want through this Bill is the opportunity and the ability to be able to align, should we wish to do so. I hope that's given a little bit of a background, because it's quite technical, but that's a little bit of the background.
Can I come in straight away, just with a little supplementary? You said that you want to give yourselves an opportunity, as a Government, to align with changes in England. Do you see it exclusively in that way? Or do you see this also as an opportunity to differentiate yourself and head in a different direction, if you so wish, if you're not happy with what you're seeing developing in England?
So, that's an opportunity as well. We're going to have to see what they do and whether we want to follow that. At the moment, we don't know what they're going to put in, so what we didn't want to do was just say, 'Chuck us in that Bill', because we don't know what they're going to come up with. But this will give us the opportunity to follow or not follow, as we see fit.
Okay, thank you.
What do you see, Minister, as—? What's your vision, I suppose, for health procurement in Wales?
I think what's important is to understand that procurement in itself is not what we're about. We're about delivering our vision, which has been set out in 'A Healthier Wales', and what we need in terms of procurement is a system that will enable us to deliver the vision that we've got. What we have been advocating for a while is, perhaps, more collaborative working, making sure we've got high-quality services that are delivered efficiently, that are focused on patient outcomes, but making sure we also have the right checks and balances, which ensures that we spend the little money that we have efficiently on services.
Quite rightfully, Minister, you talk about patient outcomes, and you said earlier this isn't the most exciting Bill, as well. What would be your advice if I was to get back home this afternoon and a constituent said to me, 'What have you been doing?' I'd say, 'Well, I've been scrutinising this Bill.' How would you explain to your constituent, for example, how this Bill is going to make the health service better for them or the outcomes better for them?
I guess until we see the regulations, it's difficult to say, so let's remember this is what they call a framework Bill. It gives us a holding place where we can then make regulations underneath that, so it gives us the authority and the ability to make rules in future—
Can you give us an example, perhaps?
Okay. I think what's clear is that there are examples of where there may be barriers to entry for, perhaps, smaller providers, because the procurement rules at the moment could be quite onerous, could be quite high in terms of administrative need. What this will give us an opportunity to do, for example—at the moment, the default position is that everything's got to go through procurement—what this will do for us in future is allow us, for example, the opportunity to roll over contracts that exist already. If they're being well serviced, if we're getting efficiency from the system, we could roll over those contracts. So, that's one thing. It's very difficult to do that now; we have to go through the whole onerous activity. And if, for example, we could see that there was only the possibility of one tender coming up, then we could, perhaps, look at a direct contract being awarded. And then, of course, competition is the third factor. But, at the moment, it's just assumed everything goes out to competition. So, it just gives us a lot more flexibility in future that should save, or could potentially save on some administrative work. I don't know if Dafydd would like to expand on that.
Thank you, Minister. We've heard from a number of places that there are things that would want to be looked at through the regulations, so, exploring some of the things. But, currently, because of the way that procurement is done, and it's quite formal through that tendering—. People have talked to us about wanting to explore things like clusters, so where a health board may work with GPs and others in the third sector to come together to collaboratively put that best service together, perhaps, for communities. So, by having a process that is more collaborative, as the Minister's described, rather than it starting with formal procurement, there may be examples there where you could look at services slightly differently and bring a collaboration together to give those better services. So, those are the things we'd want to explore, I think, through the regulations and through consultation. But a Bill that is competition last, which is what this is, a provider selector regime, rather than competition first, which is what the default the Minister has described is, gives you that opportunity. We won't be able to explore those as well without.
I think the other thing is the third sector. There are real opportunities for the third sector here, as well. That's something I'm particularly interested in.
I think what Dafydd has outlined, and yourself, is what we've heard ourselves in the earlier evidence sessions. So, certainly, we've had that view from some stakeholders that it's a complex landscape at the moment in terms of commissioning. Minister, are you happy, and your officials as well, with the level of engagement that you've had with the UK Government?
I think it's fair to say that in the early days it wasn't great. They were just cracking on with this Health and Care Act and the provider selector regime development, and hadn't really thought about the impact it would have on us. So, after I wrote to the Minister, we have had better engagement. We have seen, for example, an early draft of their regulations, but we haven't got the final draft yet, so what I am hoping—. Things have definitely improved and they've agreed to liaise with our officials on cross-border arrangements as part of developing their guidelines. So, it's certainly improved, but it wasn't great at the beginning, I think it's fair to say.
Have you had any opportunity at all to feed into the UK Government's policy development in regard to the PSR?
Not really, and not early on. I think it's just kind of having a look at what's coming our way, because obviously, we don't have to follow everything that they're doing; health is devolved. So, once we know what they're doing, we can make a judgment then as to whether we want to follow it or not.
Okay. Thank you. Jack.
Thanks, Chair. Good morning, Minister. We've heard the same from officials and other evidence sessions that we hold. I'm just trying to gauge the risk of absolutely not doing this and how real that risk is.
So, I think, what we've had as a response from the people we've consulted with, so the people who commission, is a very clear, 'We want to align', okay? So, that's the line they've heard from us. So, there may be examples—. So, at the moment, for example, if you look at some very complex mental health support, we currently commission some of that from England, and what we don't want is a situation where those organisations in England that are providing a service to us now, for what is quite a small market—because you can imagine, we're not talking about a lot of people—they might just say, 'That's a completely different procurement regime. We're not playing; it's just too much trouble for us.' So, that's the danger, that we lose some of those services that exist at the moment. That's one of the dangers, anyway.
That's a good example as well.
Gareth and then Rhun. Gareth.
Thanks, Chair. I just want to ask on maybe a technical level; we see a lot of legislative consent memoranda going through the Senedd that are replications of or passages of UK legislation that come to the Senedd, so, in that sense, if we're taking a lot of the elements of the Health and Care Act from the UK, why was that not an LCM, and why is it a procurement Bill? Is that the will of UK Ministers to have something different in Wales, or is that the will of the Welsh Government to say, 'We want to take different elements and make our own Bill', as a consequence of the Health and Care Act going through the UK? I appreciate it's quite a layman's question, but just on a technical level, I'd just like to know.
So, had we gone down the LCM route and asked them to put us under the Health and Care Act, then we wouldn't have had any possibility of diverging from whatever they're going to come up with. And at the moment, what we're talking about is a framework Bill and the interesting bit of this legislation will come when we're looking at the regulations. So, what is it that's captured in the regulations? And until we see that, it's difficult for us to assess whether we want to align or not. So, we need the flexibility through this very short Bill that we're bringing through here to allow us to either copy or to say, 'Well, we'll take most of it, but there may be some areas where we don't want to play the same way you're playing in England.' So, that's why we didn't go down the LCM route.
Eisiau mynd yn ôl at yr ymateb i gwestiwn Jack oeddwn i. Dwi'n deall yn iawn mewn egwyddor pam fyddai swyddogion yn ofni y gallai darparwyr gwasanaethau benderfynu eu bod nhw ddim eisiau darparu gwasanaethau i Gymru eto. Mi fyddai hynny’n codi ofn y bydden ni'n colli rhai gwasanaethau. Ond i ba raddau ydych chi wedi gallu profi y byddai hynny’n digwydd, drwy siarad efo darparwyr sy'n dweud, 'Chi'n gwybod beth? Dydyn ni ddim yn rhagweld y bydden ni eisiau bod yn rhan o gyfundrefn iechyd yng Nghymru pe bai yna gyfundrefn gaffael wahanol'?
I want to go back to the response to Jack's question. I understand in principle why officials would be afraid that service providers could decide that they don't want to provide services to Wales again. That would raise concerns about losing services. But to what extent have you been able to prove that that would happen, by speaking to providers who say, 'Do you know what? We don't foresee that we would want to be part of a health regime in Wales if there was a different procurement regime'?
Dafydd, wyt ti eisiau dod i mewn fanna?
Dafydd, do you want to come in here?
So, most of the conversations we've had in the informal engagement so far have been with the NHS and specifically with the people in the NHS who manage all of the procurement and all of these relationships with the providers. So, I think it's their operational advice in the way that they currently manage these that—. They know that there are already tensions sometimes in being able to get services even under the current level playing field, because, as the Minister said, we're a small—we're sometimes a small market. So, we had a very clear message from the procurement experts in the NHS that, if you change the level of the playing field again—. There were some services, which we talked about last time—renal services, mental health services—where they're saying there's a very real risk of this.
It would be very useful to us as a committee if we were able to have this—even if it's unattributed, even if it's fairly confidential—so that we can understand better those actual concerns that arise from actual contracts that are currently held between the NHS and providers, if that might be available.
Well, I guess it's their information to give, so—
—we'll have to ask them whether they—. But you could ask them that directly, couldn't you, as a committee?
We'll do that.
Our hope is that you already have it, that you could pass it on.
Yes, I mean that's part of the consultation—that's what has been fed back to us.
Thank you. That's a good suggestion. Jenny, I want to come to you, but then do you want to come on to your set of questions after you ask your supplementary?
Yes, okay. So, just to clarify, it's a really helpful initial explanation, and I understand your desire to have flexibility, where you want to have a partnership approach, involving the voluntary sector et cetera, but, on the really big-ticket items of procurement, we're talking procuring from very large companies—the pharmaceutical industry is way bigger than the Welsh Government—so, on those big-ticket items, is it normally quite—? I would assume, or I wanted to explore whether you would normally want to be involved in that provider selection regime in negotiating those really difficult prices that pharmaceuticals try to extract from the NHS for new medicines, for example.
So, I think it's really important for us to make sure there is an understanding that this is about clinical services, so, not goods.
Okay, not goods. Okay.
Okay. So, that makes a big difference, obviously. So, we are talking about quite niche services. But there are opportunities as well. We were talking about services in England, as the example I gave, the mental health one—very complex mental health—but there's an opportunity also for Welsh companies, organisations, to be providing services to England, don't forget. So, we've got to remember that there's a different side to this as well. So, they might want to procure services from Wales and, under the new system, it may be that particular third sector organisations here in Wales may say, 'Actually, those barriers, some of those barriers have been removed now in a way that we wouldn't want to get involved in the past'—that, actually, there's an opportunity not just here in Wales, but actually to get into the English market as well.
Okay. Thank you, that's really—
Joyce, do you want to come in on that point or not?
Yes. I just want to, if I can, explore the crossover that's going to inevitably happen here, because you're talking about clinical services only, but clinical services very often depend on non-clinical services, like pharmaceuticals, that Jenny just described, for certain conditions. So, in order to manage them by providing the clinical help, you are still going to take off the shelf some form of, maybe, pharmaceutical, maybe other provisions. So, just for clarity, how are you going to manage that as a whole in terms of explaining, going forward? Because people are going to find that difficult, aren't they, to imagine: yes, we're providing a service, but, in order to provide the service, we need x, y and z and x, y and z is not a service, but we can't give the service without it.
So, I think what's really important is that there's an understanding that there can be mixed procurement. So, sometimes, there is a little crossover between goods and services. But it's not—. I don't think it's going to be the example you gave; it's not going to be pharmaceuticals. If I give you an example of blood, okay—so, if we wanted to procure blood from an organisation in England, you can't have blood without it coming in a tube. So, the service would be blood, but actually there'll be a mixed procurement there, because obviously you can't transport it without the tubes. So, I think the pharmaceutical thing takes you down a route down that I don't think this will be going. Would you like to expand on that?
No, that's correct. So, the provider selection regime, it is about clinical health services, but it does have the opportunity to have mixed procurement, but it'll be quite stringent, I suspect, about where that mix can go. And those will be part of the tests that will be part of the regulations. But it would need to make sense. It would need to be connected to—I think that is the word in the Bill—the health service and show that it is required and part of, effectively, buying that one contract and not be able to do those things separately. So, you've got the ability, where it makes sense, to have that mixed procurement, but, clearly, pharmaceuticals and other goods, they will be through normal procurement routes.
If I could, Chair—. So, things like endometriosis services in north Wales are currently procured from NHS in the Wirral and Liverpool. So, were that to continue—which it's not going to, but—then that would have to come under the regime of this new procurement.
So, the example that the Department of Health and Social Care used in their consultation—so, this is the easiest one—is, basically, an immunisation service. So, you would have clinicians who would be coming along and doing the immunisation, but, in buying an immunisation service, you clearly need people to administrate that, to make sure it's safe and take records and, effectively, input those onto systems, and there may be some goods with that. So, in buying that immunisation service, you're not just buying the clinicians, you're buying what has to go with it in terms of the administration to make sure that that service works on the day. So, that was the example used. It's where it would be sensible to do that and where it almost necessitates being bought as part of that one contract or service.
Thank you. Moving on—
Sorry, do you mind if Rhun comes in before you move on?
It's literally just to tease out what Joyce was saying. Could you buy the vaccine as a part of that package? You're not procuring it yourself, but you're buying a service that comes with a person and a room and a jab.
So, that would depend on what tests you put on, effectively, where does mixed procurement go into that. So, if you can buy that good separately—
You've decided not to: 'You buy it all. You buy it all in; we'll just pay for the whole service.' That could include the pharmaceuticals, or the vaccine, or whatever, as part of a package.
It would depend, effectively, on where the end of mixed procurement was allowed. So, I think, generally, for pharmaceuticals, it's viewed—. If you look at DHSC's consultation, they're, effectively, saying that pharmaceuticals would be outside that. We would have to see the final regulations that come through from them, and then we have, effectively, to say, 'What would we want to mirror here, and what are we able to do?', remembering that this regime has to sit squarely and tidily with the rest of procurement, so that people are really clear are you using this for health services and the rest for the procurement. So, that's what we'll have to get absolutely clear in developing the regulations.
It's 'could', I'm looking for—
Yes, and the problem is that we haven't seen their regulations, and, until we see the lines of where the mixed procurement starts and ends, it's difficult for us to answer that question.
Just to add, in terms of the drafting of the clause, it's 'connected to', and the aim of that is to ensure that the health services, or the goods that are connected to those, relate to that health service. So, they need to be connected in a substantive way. So, it's, as Dafydd says, that you couldn't procure the health service that you really need to, the clinical service, without the goods that come with it. So, that 'connected to', that's how it's been framed in the drafting, to ensure that.
So, the immunisation example would be a good one, actually. If you're buying an immunisation package, complete with the vaccine, it probably would, or it could, yes. Yes.
There is potential scope, but, as the Minister says, the regulations will have to provide the detail of the test that is to be then met in terms of mixed procurement.
Thank you. Jenny.
You could also be thinking of social prescribing, for example, which is high on the agenda. Okay. Very good. So, obviously, the Bill has gone through the Committee Stage in the House of Commons, but it still hasn't gone through the Report Stage in the House of Commons. How much—? Are there any risks of any delays in it actually passing through the final stages in the Houses of Parliament and becoming law? What are the—? Are there any risks, or does the current regime stand?
So, we think the risks are pretty low. So, obviously, the Health and Care Act 2022 has gone through. So, that has had Royal Assent. But what we're waiting for now is for the final Procurement Bill to go through. We're expecting Royal Assent imminently—
Once it's completed the Report Stage.
Yes. So, it's in Report Stage soon—in the Report Stage soon. So, after that, they'll crack on with the regulations, so—. Obviously—. I can see that there's an issue here, but, obviously, what we're trying to do is to minimise the time gap, so we just need to be ready for that time gap. Nick, do you want to come in there?
Yes, just to add to that that the UK Government also have a power within the Procurement Bill to disapply parts of it for their health service's purposes. So, they're in a similar place to us in terms of that part of our Bill as well.
Yes, well, that what was I wanted to ask you about, which is this disapplication clause that has been put in at the Committee Stage. So, Nick, would you be able to give us a sort of layperson's explanation of what is the importance of this insertion of the disapplication clause, and do we think that it'll be airbrushed from history at the Report Stage?
The idea of the disapplication clause is, effectively, to be able—to put it, I suppose, simply—to switch off bits of the Procurement Bill we may not want to apply, or may not need to apply, to the new regimes that will be introduced. So, I suppose it's a fairly simple piece of legislation, that says it just allows for that to happen, and allows, then, for the effective operation then of the PSR when it comes into place.
So, that, potentially, could give comfort to the health boards to be able to pursue some of our aspirations and vision.
So—. Okay, so, I'll try and—. Because these are very clever people, and I'm just trying to keep up with them. So, my understanding is that in the Procurement Bill—. So, there's this big new Procurement Bill, and what there's going to be is a carve-out for health, okay. So, they've done all the hard work, ironically, under the Health and Care Act 2022, okay—so, all of that is kind of going on in the background—on the assumption that they're going to get this carve-out from the public procurement Bill, yes. So, they are working under—. They've actually taken a Bill through Parliament. So, you think we're risking it—they're working it already and they haven't had that carve-out yet. So, they will be carved out, we'll be carved out, the health bit will be carved out. So, we're all in a similar situation in relation to risk. Does that make sense, Nick?
I think, overall, the point the Minister made is that we think the risk that there won't be a Procurement Bill to get a disapplication permit from is low, and, in terms of its timing, it's imminent.
Given that it's such a muddle, it doesn't look like there's been a lot of scrutiny. Is that the case? What scrutiny has the Houses of Parliament done on the potential implications of all this?
So, the key thing to remember is that this is a framework Bill, okay. So, the detail will come in the regulations.
Okay. Which is all the more reason why you, Minister, want to ensure that the regulations that we want will be made in Wales.
Thank you. I think that covers that. I suppose my next question is really on how this aligns with the social partnership and public procurement Bill, where we've established, or we hope we're going to establish, in law, things like fair work, the living wage, equality and diversity legislation, which is all in line with the Well-being of Future Generations (Wales) Act 2015. So, how much would those aspirations be at risk from any regulations and guidance that are devised in England?
So, I think the key thing to remember is that there will be an integrated impact assessment when we go out to consultation on this, and that will, obviously, include equality. So, I think that's quite important. I think the key thing to remember in relation to the social partnership and public procurement Bill—. So, what happened there is that they'd already started on that route before we started on this route. So, we were in a position where, by the time we realised that we'd have to act in this space, there was no scope for us to get involved in that particular Bill. So, the scope was quite limited. Had we got there earlier—so, you can see this is quite speedy, we're trying to make sure that we don't have a gap here, but had we got there earlier, we might have been able to put something into the social partnership Bill. But by the time we got there, our legal advice told us that we were out of scope, and so we couldn't be involved in that particular Bill.
Okay. Thank you. I think my last question is really around the opportunities for the Bill to promote and advance equality and inclusion through health service procurement. I'm thinking around social prescribing, I'm thinking around the recovery college work that's going on in Cardiff and the Vale where they're capturing the lived experiences of individuals, and using that to really embed and deepen the quality and effectiveness of services.
So, I think it's really important we don't go down a policy route here; this is a technical procurement issue. What health boards want to do and what they want to commission is a separate issue. How they commission is what we're talking about here.
Okay. All right, thank you.
Thank you, Jenny. Rhun ap Iorwerth.
Diolch yn fawr iawn. Buaswn i'n licio edrych ar sgôp y gyfundrefn newydd. Mae'n dal yn aneglur beth yn union ddaw allan o'r ymgynghori yn Lloegr, ond yr arwyddion ydy y byddan nhw'n cynnwys holl wasanaethau NHS, yn cynnwys llawer o wasanaethau gofal sylfaenol. Pa wasanaethau yn union—? Sut ydych chi'n diffinio pa wasanaethau'n union sy'n mynd i fod o dan sgôp y Bil yma yng Nghymru, jest er mwyn bod yn eglur?
Thank you very much. I'd like to look at the scope of the new regime. It is still unclear what exactly will come out of the consultation in England, but the indications are that they'll include all NHS services and include a wide range of primary care services. What services exactly—? How do you define exactly what services are going to be under the scope of this new Bill in Wales, just to be clear on that?
We're expecting that this will apply to clinical healthcare services that are defined under sections 1 and 3 of the National Health Service Act 2006, and that covers, basically, prevention, treatment and diagnosis of illnesses. So, it's very, very broad. What will happen is that there will be a list; there will be codes, a list of different kinds of services that could be impacted. There are around 40 different conditions and things that could be impacted, so, dialysis, pathology—there's a list of about 40. And what will be decided is, 'Right, out of these 40, how many of these do we want to be ticked off? How many do we want to come under this new regime?'
O dan regulations mae hynny, neu—? Ie.
Under regulations? Yes.
Yes. As the Minister said, the Bill has been written so that the full scope of clinical services delivered by the NHS could in theory go into this provider selection regime. But procurement needs to be very clear, black and white, whether things are in or not. So, the way they do that is through those common procurement vocabulary codes. So, as the Minister described, they are specifically listed, and there are about 40 of those. So, in bringing forward the regulations, that definitive list, and what is in that list or what may be left out of that list, will then give a very clear and definitive list of what services can be procured through this route versus what would be procured through just the normal new changes to ordinary procurement.
Okay. So, the scope is all of them; it's at the regulation-making stage that you decide technically which ones.
We'll know which exactly, yes.
Yes. And we haven't seen, as yet, what that list is from England. So, that's what the Minister said. So, we would want to understand what's in that. And I think, what we particularly want to make sure is that some of the ones the NHS are concerned about, we would check whether those were in there and for those to be in any Welsh PSR that was brought forward.
Diolch am hynny. Mae hynny'n help. Buaswn i'n licio rŵan gofyn ynglŷn ag un maes sydd ddim yna, sef gofal cymdeithasol. Mae'n amcan gan Lywodraeth Cymru i symud at drio integreiddio mwy ar iechyd a gofal cymdeithasol. Ydy'r Bil yma mewn unrhyw ffordd yn adlewyrchu'r bwriad i symud i'r cyfeiriad hwnnw, ac yn gallu caniatáu'r math o gaffael ar y cyd fyddai'n helpu integreiddio i ddigwydd?
Thank you for that. That's useful. I'd like to now ask about one area that's not there, namely social care. It's an aim of the Welsh Government to move to integrate more in health and social care. Does this Bill in any way reflect the intention to move in that direction and allow the kind of joint procurement that would help integration to happen?
So, social care can be included, but only when it's part of a mixed procurement. So, the Department of Health and Social Care have not included social care in their provider selection regime. Mari, this is quite complicated, isn't it, so I don't know if you want to say anything.
Yes. There are specific limitations around social care that have been explored, but as the Minister says, currently DHSC's regime is limited to healthcare services. So, at the moment, it's to align with what DHSC are doing.
Okay. There are some who have told us, including the Association of Directors of Social Services, I believe, that they fear that not including explicitly social care in there might limit the moves towards integration. Politically, Minister, what would you say in response to that?
I think what we're trying to achieve here in the first place is an opportunity, if we want, to have a level playing field. So, England is not going down that route. Now, I think they have an ambition also to integrate more their health and care services as well. So, they're in the same position as we are, effectively, but I think there are legal issues that constrain that.
Mae llywodraeth leol wedyn yn gorfod caffael amrywiaeth o wasanaethau iechyd. Sut bydd y ddeddfwriaeth yma'n effeithio arnyn nhw, a pha gynlluniau sydd yna i ddatblygu eu rôl nhw fel llywodraeth leol a'u capasiti nhw i gaffael gwasanaethau iechyd? Mae'r hyn rydych chi wedi'i ddisgrifio hyd yma i fi'n teimlo fel caffael iechyd ond efo elfen o ofal cymdeithasol. Beth os ydy'r caffael yn dod gan awdurdod lleol sydd yn bennaf yn ymwneud â darparu gofal cymdeithasol ac yn cynnwys elfen o iechyd ynddo fo?
Local government then needs to procure a range of health services. How will this legislation affect them, and what plans are there to develop their role as local authorities and their capacity to procure health services? What you've described thus far feels to me like procuring for health but with an element of social care. What if the procurement came from a local authority that is essentially responsible for social care but includes an element of health?
So, os iechyd yw'r value mwyafrif, wedyn, bydd e'n dod o dan hwn. So, dyna, o beth dwi'n deall, y llinell. Ond, yn amlwg, fe fydd rhaid cydweithredu mewn achosion fel hynny gyda llywodraeth leol. So, y cwestiwn yw wedyn i ba raddau maen nhw'n mynd i fod yn barod ar gyfer y newid yma. Y ffaith yw, bydd rhaid iddyn nhw ddysgu system newydd anyway achos bod y procurement Bill arall yn mynd i ddod mewn mwy neu lai ar yr un pryd. So, bydd rhaid cael rhywfaint o hyfforddiant ar gyfer y system procurement newydd, felly, yn amlwg, mae'n gwneud synnwyr, unwaith ein bod ni'n gwybod ble rŷn ni'n sefyll ar hwn, ein bod ni'n gwneud yr hyfforddiant sy'n ymwneud â hwn law yn llaw gyda hynny, fel bod pobl yn glir ynglŷn â ble mae'r llinellau.
So, if health has the biggest value, then it will come under this. So, from what I understand, that's the line. But, clearly, we will need to work collaboratively with local authorities. So, the question then is to what extent they'll be prepared for this change, and the fact is that they will need to learn a new system anyway because the other procurement Bill will be coming into force at the same time, more or less. We'll need some amount of training for the new procurement system, so it clearly makes sense, once we know where we stand on this, that we do undertake that training with regard to this alongside that, so that people are clear about where that line is.
Mae hynna'n ddefnyddiol ac mae'n fy arwain i ofyn un cwestiwn arall. Nid chi ydy'r Gweinidog sy'n gyfrifol am gaffael, wrth gwrs; mae yna Weinidog arall yn gyfrifol am hynny. Pa fath o gydweithio sydd yna rhyngoch chi a'r Gweinidog hwnnw? Dwi'n cymryd y Gweinidog cyllid fyddai'r Gweinidog—a hi, felly—er mwyn gwneud yn siŵr bod yna waith yn cael ei ddatblygu ar gynyddu capasiti ac ati, a gwella arbenigedd.
That's useful and it leads me to ask another question. You're not the Minister responsible for procurement, of course; there's another Minister responsible for that. What sort of collaboration is there between you and that Minister? I take it it's the finance Minister—with her, therefore—to ensure that work is being developed on increasing capacity and so forth, and improving expertise.
So, yn amlwg, fe fydd rhaid cael rhywfaint o hyfforddiant ar gyfer y Bil caffael newydd. Beth dydyn ni ddim yn gwybod eto yw beth fyddwn ni'n hyfforddi nhw mewn. So, tan ein bod ni'n glir, does dim pwynt inni fynd rhy bell i lawr y trefniant yna, tan ein bod ni'n gwybod beth fydd yn y rheoliadau. Dafydd, wyt ti eisiau dod mewn?
So, clearly, we will need some amount of training for the new procurement Bill. What we don't know yet is what we'll be training them in. So, until we're clear on that, there's no point for us to go too far in putting those preparations in place until we know what the regulations will be. Dafydd.
Diolch. So, we understand that there are a number of procurement changes currently going on, and we, as officials, are working across those different groups. Part of the reason we're trying to bring this Bill forward at the moment, and talking about trying to implement it, effectively, early in 2024, is that we can actually bring together the implementation of new changes and therefore work together with local authorities, health and others, who've got to understand the totality of those changes. So, we're very aware that we need to work with all of those interested stakeholders who will be impacted by all of these changes in procurement, and try and make sure that people understand, across the different regimes, what it is, what training, what support they need, so that those organisations can gear up across the totality of those. And that's why the timing of this is important for ourselves, to try and do it at the same time as the wider procurement regimes.
Ocê. Mae gen i un cwestiwn olaf, os caf fi. Mae'n debyg mai cwestiwn i'r Dirprwy Weinidog Gwasanaethau Cymdeithasol ydy o, o bosib. Efallai gallwn ni fel pwyllgor ysgrifennu ati hi, ond mi wnaf i ofyn, beth bynnag: sut mae'r cynigion yn y Bil yma yn rhyngweithio efo'r ymgynghoriad sy'n digwydd ar yr un pryd â'r fframwaith comisiynu ar gyfer gofal cymdeithasol? Achos mi oedd hwnnw yn gonsyrn gan rai fu'n rhoi tystiolaeth inni wythnos diwethaf—bod yna rywfaint o ddryswch o gwmpas hynny.
I've got one final question, if I may. It's a question, perhaps, for the Deputy Minister for Social Services. Perhaps we can write to her as a committee, but I will ask: how do the proposals in this Bill interact with the consultation that's happening at the same time on the commissioning framework for social care? Because that was a concern raised by some who provided us with evidence last week—that there was some confusion around that.
We'll be working closely with statutory partners as part of the stakeholder engagement, to explore how the Bill can work with the national commissioning framework and the integration of health and social care, and that is going to form part of the development of future regulations and statutory guidance.
Thank you. Joyce, you wanted to come, then I'll come to Gareth. Joyce.
We all know that procurement officers are not readily available to everybody, so the question, then, that follows—there are three questions. You've got a timescale for this Bill coming forward and you've got another timescale where you've recognised that training will need to be delivered, but you don't quite know what yet needs to be delivered, and then, the availability of those people to train. So, there are three things here that have to come together. So, how prepared are we for those three elements to come together in a timely fashion, so that people understand fully what it is they should be doing?
So, they know that this is coming; they're gearing up for it, they know that they're going to have to gear up for the new Public Procurement (Wales) Bill anyway. The issue about whether there are enough of them is beyond the scope of what I'm able to deal with here. That's a matter for local authorities. But, obviously, the health boards know that this is coming, they're geared up. This is their day job. We have, obviously, centralised shared services in Wales. This is their full-time job, this is what they do. So, it's going to be a core part of their activity. So, the people who work in this know it's coming, they know they're going to have to change, they know that they're going to have to train up pretty quickly, once we're ready.
But have we got enough people to be trained and enough people to train them?
I mean, I think that's a good question. In the NHS, there is an issue with have we got enough staff altogether with the limited budget we've got. It falls into that whole broader, 'Have we got enough of everything in the NHS?' When budgets are tight, that's difficult, but obviously there is an army of people already in the NHS who are involved in doing this work.
Thanks, Joyce. Gareth Davies.
Thank you, Chair. I want to cover my questions on the impact on stakeholders and providers this morning, if I may. In the committee, we've discussed with a number of third sector providers about the difficulties with the current procurement regime. An example of that would be the procurement approaches that vary between the health boards, regional variations, the need in different local areas to suit those demographics, communication, delays in decision making. If the Bill will not tackle some of those difficulties and those regional variations, are you taking other actions to address those barriers and some of these variations we've talked about this morning in terms of what's going on in the English system and what we want to incorporate into Wales? What can we do in that sense to make it representative of the situation in Wales?
I think the fundamentals of what's going to change here are going to be helpful to the third sector. At the moment, the default is you procure everything, you go out to tender, and that actually, I think, is a barrier for a lot of smaller organisations, in particular third sector organisations. What we've got here is an ability, first of all, to roll over contracts where people have already been through procurement. Where they're doing a good job, where they're delivering the service, where we've got no problem with the quality, standard and efficiency of what's being delivered, do you have to go out to procurement again? The answer is 'not necessarily' under this new regime. I think also you gave some examples there of where there may be some fairly unique circumstances, so it may be in a particularly rural part of Wales where there's a particular service that you want to procure, and there's only one organisation that can provide that service. Then, to go through the whole rigmarole of procurement when, actually, there's only one organisation that can provide it—
I think the intention of this Bill is that it's a bit of an anticronyism exercise, isn't it, really, in the sense that anybody who necessarily—. What we want to create is a culture of if there's a new and upcoming service that can provide something and it's value for money and something that's new, upcoming and representative of the needs of patients in the NHS, then that should also be respected as well, and not just going, 'Oh, we know Dave down the road does a good job', for example. It's just looking at and being aware and alert to some of these changes that happen, because some companies and some providers stagnate and you need to have a view of the market in order to see who's upcoming, who's competitive and have that competition in the market, because that can also drive prices and the value for money in some of these services as well.
That's why we've got to get the balance on this right, because I think what we've got to avoid as well is the danger of cronyism. We've got to avoid that. Just because Fred down the road is the only person who can deliver that particular service, and Fred is a mate of whoever, is that appropriate? Before, Fred would have had to jump through a few hoops to get the contract. So, transparency is going to be absolutely crucial, making sure that everything is above board. It may be that in England they might want to do things differently, and they might want to go, 'That organisation there is going to be delivering that service.' I want to avoid that here. I want to make sure it's all very transparent, that everybody knows what's going on and knows where the lines are in terms of when we're not going to go out to procurement. But on the other hand, if there's an organisation doing a cracking job where there aren't many other players in the market, to put them through the rigmarole of a high administrative burden doesn't make any sense either. Dafydd, do you want to come in?
You mentioned that people are saying communication and delays in decision making can be improved. I think it’s important to understand that, with the regime currently, tenders are put out there, and to some extent it's who responds to that. This change is more about building collaborations—it means you have to understand who’s out there, and it’s about building those relationships. So, in terms of communication and how can people work with the NHS or others, this regime should do that, and it will free up more people’s time to be able to monitor performance and those issues. And from a Government point of view, the Government puts the legislation in place, the statutory guidance is where I think a lot of that guidance will be, and clearly we will monitor and evaluate after a certain period of time how the procurement regime is working, and build that into any reviews. But I think there’s a real opportunity, for communication and delays, to get away from the transactional to the collaborative—'Let's understand'.
I'm really keen to shift more services out of secondary care, out of hospitals, into the community. That's where we've got to be heading in future. I'm really keen to see that cluster development happening. In future, rather than having this service and this service and this service all having a go, we might be able to build something together, with lots of partners coming together, in a different way from the kind of procurement approach that’s happened in the past.
Gareth, do you mind if I bring a couple in and come back to you? Jack and then Jenny.
Diolch, Cadeirydd. There are clear examples across the border where contracts have been perhaps not transparent, and there is room for concern here with this. But building on the points Dafydd mentioned, and that relationship building—. I don't want to go down the transparency route; I know Joyce is going to pick up some stuff on that. When I look at something like Care and Repair Cymru, they do excellent work in my constituency—really good work. But the way they've done that is because they've developed the relationships. They've developed the scheme to suit the need of the local area and the local population, and it's that point, isn't it, about building relationships. Will this Bill give them more scope to be able to go out and develop that sort of scheme, which is necessary? It might not be the same in Ynys Môn as it is in Flintshire, but they've developed it for the local need. Will this allow them to do more of that? Because at the moment that's quite tricky.
Do you know what? It’s the example that I was really interested in as well, because I think they do excellent work, and I don’t want to, if we can avoid—. But they get grants rather than go through a procurement route, so that’s slightly different again. That’s a different form of contract again. Is that right, Dafydd?
Yes. A number of organisations may hold both. They may have grants, they may have procurement, but—
You might want to shift those grants into this new regime where you could give them longer term agreements.
One of the things we heard, and I hope I'm not encroaching here, was actually that it wasn't essentially the regime of procuring, it was the funding cycle.
That's a slightly different thing again, but I think there's an opportunity here, maybe, to switch. To give them a little bit more of a longer term approach so that they can invest in their workforce and whatever, and not have that cliff edge at the end of the year, which I'm really concerned about, they may want to be switching some of those grants now into this new regime.
Primary care clusters are obviously a very important part of your vision for the future, and they have small budgets to enable them to commission X or Y to address a gap in very localised services. Clearly, transparency is really important—that Freda isn't just getting the contract, the grant, because we know her. But how do you make sure that this doesn't become a seriously bureaucratic process that people who are very busy clinicians just simply won't have the appetite for, and therefore will prevent them innovating and collaborating?
I think at the moment the system is probably stopping people who might want to get involved because the procurement route is so onerous, whereas in future—. Part of what I've asked health boards to do this year is to shift their resources into the community and make sure that that movement is happening. So, rather than it just be up to the GPs, who want to get on with their day jobs, you might get a bit more leadership from the health boards, who will be able to drive the clusters a bit more. They'll be able to do the management and the organisation, rather than the GPs having to bid into something. Does that make sense?
I think the devil will be in the detail in terms of the operating principles, but those are the things that we want to explore through this Bill and through being able to move away from what is seen by some as quite a rigid way of procurement at the moment for a sector such as health that is quite niche and is quite different. This is what we want to explore, and, through the regulations, we'll be able to see where there is latitude to do that and how we can take these things forward. The consultation that we'll have around the operating principles of this will be talking to people who run clusters, talking to everybody, saying, 'What are the opportunities that we can draw forward?' and then, hopefully, draw those forward into any regulations for the Minister and others in the next stage.
Thank you. Gareth, do you have any further questions?
Thanks, Chair, I've just got one last question, because we've naturally covered a lot of my questions; I hit all mine in one, in a way, and in the answers we've covered that as well. Just finally, whatever decisions we make have to be also in the best interests of the NHS. I always use the paracetamol example, because you can go to Home Bargains and buy a pack of 24 paracetamol for 25p or something like that, but there's evidence to say that they'll charge the same drug to the NHS for £5.
What alertness would there be in that system to protect the NHS and make sure that it gets value for money, and they're not being, necessarily, ripped off by big pharmaceutical companies? We've got concerns over some of those prices in the NHS, and, maybe, sometimes, where they might lack some of the expertise, in that market sense, to analyse what prices should be for a certain drug. What would there be in the framework, necessarily, to protect the NHS in that sense? Because we want to see value for money and we want to see taxpayers' money being spent quite prudently and quite wisely, and getting that value for money.
Absolutely, we're very interested in value for money. Obviously, as I've mentioned, pharmaceutical companies—industries—on the whole won't be covered by this regime. Procuring through competition is always going to be an option, so that's still going to be there. But what we're looking at here is more flexibility beyond that, which is not really available to us at the moment.
Thank you. Joyce Watson.
I want to give a voice to community pharmacies here. It's a real example of that crossover between what we were talking about earlier on, about that joint procuring—I don't think that was the right term, but, anyway, whatever that term was—and our desire, of course, to push services into the community pharmacy contract—the new contract that's coming forward. They've indicated to us a nervousness about how that would look for them, going forward, purely under the new procurement rules. Are you able to explain to us how that will be managed without impacting our desire to create community pharmacies and their expectation of delivering that?
I think we're really proud of what we've done in relation to community pharmacy in Wales. We're ahead of the game here compared to the rest of the UK. The one thing I wouldn't want to do is anything to undermine the established contracts and the way that, I think, they work well at the moment. The DHSC—so, the department for health in England—in their consultation, they included some examples where some pharmaceutical services would be out of scope, but others would be in scope. So, once we've got a better sense of where their proposed regulations will lie, what I'm hoping to do is to make sure that our officials work with community pharmacy and the contractual framework to make sure that we've landed in a place that works for both of us.
Yes, because that was a really good example, I think, of what we were trying to disentangle previously. Shall I go on to my—?
Yes, please. Yes, thank you, Joyce.
Most of my questions have been asked, but there are a few that haven't, and one is about communicating the new procurement regime so that it's understood by everybody—good luck with that, is what I say—but, anyway, when I say 'everybody', the people who need to know immediately. So, how are you moving into that space at the moment?
So, as you've heard today, this is quite complex. It's quite technical, and, actually, the public don't really need to get engaged in all of this. This is quite a niche group of people who need to understand this, so they're the people that we're most keen to communicate with. We've already done an informal consultation with them. Once we get much more clarity, in terms of what the regulations look like in England, we will then be in a position to do our formal consultation—12-week consultation—that will make sure that we're really getting engaged and involved with the people who will be impacted by this. So, that's all ready to roll, once we've, obviously, got this through the Senedd and we get the bit more formal detail from Westminster. Is that right, Dafydd?
And the other question: we're talking about procurement, so, therefore, we also have to talk about competitive tendering, because those two align in places; they have to. It underpins all that openness and transparency that people were talking about. So, in terms of making that clear, which is hugely important, how are you going about considering that, in terms of going forward, so that people clearly understand—it's a nuance; I know it's a nuance, but—understand that difference, which should, then, in turn, give some clarity about the openness and transparency that people will be looking for?
So, I think, as has been mentioned, testing the market, getting the best quality and the best cost efficiency, is also important. So, there will be lots and lots and lots of occasions when we absolutely want to continue with the competitive approach that we live under at the moment. So, the key thing then is how do you make sure that system is absolutely fair, and what we've done to make sure that it is fair is we've set out on the face of the Bill the steps that will need to be followed as part of that competitive tendering exercise, so we're absolutely clear about transparency, about what needs to be done, about the kinds of rules that they will need to follow.
Okay. And finally from me, we do have a code of conduct for funding to the third sector, and whether we can ensure that the procurement regime will adhere to that code of conduct for funding to the third sector, and, more crucially, how you ensure that people know that you're adhering to that code of conduct.
So, we're definitely going to need to consider the implications of how future regulations guidance aligns with the third sector code of conduct. So, once we know where the proposed regulations are, we'll have to look at those, at are they in line with what we're expected to do in relation to the third sector. I think there's likely to be some read-across in terms of general principles of good practice when it comes to procurement, so I'm not that concerned about it, but it is something we clearly need to keep an eye on.
Okay. That's it from me.
Thank you. Jack Sargeant.
Diolch yn fawr, Cadeirydd. We've covered already, I think, from the start, engagement and consultation. You've had the informal discussions, mainly with NHS Wales, I think Dafydd was saying earlier on. I think it's fair to say, and it's worth saying, in some of the conversations we've had informally with other stakeholders, they either didn't know about the Bill completely, or they didn't understand that the Bill would perhaps affect them in the way that it's likely to affect them. So, that makes the next stage of consultation—. The Minister's already talked about the 12-week consultation, which I think is good. It won't be a rushed consultation, it will be, perhaps, the normal, standard approach that is taken, which is something that we heard was needed. That makes that stage ever more important. So, on that basis, really, is—? There are two points. If there is a delay in England bringing through the regulations, is that going to impact on that 12-week consultation and the implication of what we do here in Wales—implementation, sorry—and then, secondly, that 12-week consultation—it's difficult for you to answer without seeing them, I understand, but—do you expect it to be purely on principle, or do you expect that to be more detailed, on those regulations and guidance?
Okay. So, look, I'm committed to a 12-week consultation. So, if they're late in England, then I would rather postpone when this comes into force than forgo the 12-week consultation. This is a framework Bill; the detail is what's going to be important. That's the bit that we really need to engage with people on, so I'm giving you that commitment. I think that's important. But, just in terms of operational principles, we've got an idea about the operational principles. Basically, the default position up until now has been everything procured, everything goes out to tender. Now, there will be exceptions to that and there'll be alternatives. So, those are the kinds of operational principles. Now, what I'm hoping and what I'm expecting is that, by the time we go out to consultation, we will have the regulations from England, we'll know where they stand, we'll know what areas they would want to cover. We will then, effectively, be going out to consultation on, 'Do you think the bits that they say should be covered'—
So, they still will have that meaningful input, even if it is, perhaps, a carbon copy.
Absolutely, and that's important for me. We need to know, 'Look, do you want to do a carbon copy or don't you?' Dafydd.
Thank you, Minister. I recognise the comments, and, as we explained, I think, in the explanatory memorandum, there have been a number of groups that we have spoken to, even outside the NHS, but that has been in an initial form, to gain their understanding about is there the need for these powers. I think people understand the need for these powers, but it's the detail that the Minister's described that everybody is interested in.
To give the committee some reassurance, we're already booked in to talk to the Welsh Local Government Association in April, voluntary organisations in June, so we are still talking and, therefore, building the narrative that the Minister has just described there that we will be coming during the consultation, and, therefore, in doing that, we're hoping that people understand, come that period, that it's not a standing start and that they understand, effectively, what's coming. But we're committed to trying to have that engagement at that point in time.
Thanks, both, for those answers, and I think the important point from that was the 12-week, the confirmation and guarantee of the 12-week consultation, because, in the informal discussions we had, I pressed, 'Well, if it's going to be rushed, you need—?' And it was quite clear, 12 weeks was needed; it can't be rushed. Some organisations haven't been spoken to for all those reasons, and I accept there have been discussions, and the explanation memorandum says that.
But just finally from me, looking at perhaps the users of this procurement regime, NHS Wales, the top procurement team, are going to get this, they're going to have the resource perhaps available. Of course we want them to have more resource, but we understand the difficulties there. With GPs, for example, they might find that a little bit trickier. So, then, yes, we've spoken about training already. Again, it's difficult, because we don't know what we're going to have to be training these people on, but there will be additional resource available, so, for example, GPs are up to speed with the new procurement regime when it comes out, because there is a concern that the committee has heard that this is a big change for some people and, if they don't get the relative training or guidance and different things, they could struggle.
Yes. I don't know to what extent GPs make use of the current system. Dafydd, can you—? Yes.
Public procurement has to follow current—. Well, I'll turn to Nick, but, public procurement—you know, whoever—follows current regulations, and so—. There are big changes coming, as you described, whether they're from the Procurement Bill or whether they're coming from this Bill.
It's all going to change, whether this Bill comes in or not.
I suppose the question would be, then, in the consultation that you have, there might need to be a look to say, 'This is changing. What do you think you will need in order to bring you up to scratch?' Because there could be an unintentional consequence here, where someone like GPs, busy as they are, as everyone else is, may just not be up to speed, and, unfortunately, we might be missing a trick here, in terms of—. It was just a comment that you might want to think about how to add that into the consultation period, or the discussions that you have with stakeholders again. I'll leave it there, Chair.
Rhun ap Iorwerth.
It's a question building on the consultation and engagement theme, specifically on the consultation that could happen on not just the making of the regulations, but on the application of the regulations. One possible amendment that is forming perhaps in our minds as a committee to the Bill could be potentially to subsection (3), where there is a list of principles that are important to be kept to on ensuring transparency, ensuring fairness, ensuring compliance can be verified, managing conflicts of interest in the granting of contracts. What would your thoughts be on adding to that list the need for consultation and involvement of the people—involvement of people who contracts will impact upon? That was a concern that was raised by a number of witnesses to our committee last week. It's part of the safeguarding we're looking for, that we're trying to build a procurement regime that's more sensitive to our needs as a nation but also to the needs of the people whose services it impacts upon. So, what would your thoughts be on adding to the face of that Bill the need for consultation and the involvement of people who use services and who are affected by them?
Well, I'm just trying to think through—. As you've heard, this is a highly technical Bill, and it's quite difficult to get your head around it as it is. So, what I would hope is that the people who are contracted to do the services would always have in the forefront of their minds the need to give a service to their communities. Now, how far down that route do you want to go? Because my fear would be that you would be adding in a significant additional group who, frankly, would find it quite difficult to access this whole debate. So, my fear would be that we'd be expanding the need to consult massively with people who wouldn't necessarily need to be engaged in what is fundamentally quite a technical arrangement.
I mean, we're talking about people who will be affected by services, and whilst hope is a great virtue in a Minister, I'd rather have legislation that gives us a bit more of an assurance than the Minister hoping for something. We're trying to—. You describe it quite rightly as a technical, rather dull Bill but that will actually do things that can have real impacts on people's actual lives, and what we're looking for here is a way of tying this Bill into those people's—even a technical Bill like this—into the lives of the people it will affect. Did you want to—?
I think this is—. The people affected need to be consulted, and you've heard the Minister say that—[Inaudible.]—the policy, we absolutely want to make sure that there's consultation in developing these, but it is quite a niche sector. I think you've heard that we're already trying to, effectively, make sure that we're reaching the people who need to hear about this and therefore are covered by, if you like, the normal consultation that is Government policy. So, I'm not sure whether there's a need beyond that to add—. And that might add some extra time. So, I think the thinking at the moment is that, the consultation that we're having here will reach the people who need to be involved in shaping those future regulations.
I'm just trying to work out who you're thinking—
We'll have further conversations, no doubt, and we'll be able to tease these things out further, but we're talking about principles here of transparency—really important; fairness—really important; ensuring compliance—technical, but really, really important; managing conflicts of interest—pretty basic stuff. But also making sure that decisions that are made are made in consultation with people. I think it could be seen—. I see it as one of the core principles—
So, I'm just trying to think of an example of what you might want us to do and whether that is practical. So, say if we had a blood service, okay, are you suggesting that we consult with everybody who would need that blood service on an incredibly technical issue, whereas, actually, all they care about is, 'Do I get my blood and is it safe?' Do we need to consult with them on that, because actually—
We can have a very long conversation about this, but people might have a strong opinion on the extent to which they want private involvement in the provision of a service. You know, this—
Well, that's a different question, isn't it?
It's a question, yes.
We'll have an opportunity to tease this out again, because I think there are some important principles here, raised by a number of witnesses independently of each other last week, so—yes.
Yes. Okay, thanks, Rhun. Can I just ask you to clarify one point, Minister on whether the rules for competitive tendering will be on the face of the Bill? I ask that question in regard to an earlier answer you gave, referring to the provisions in section 10A, which I was just looking at on screen, which sets out the requirements that must be addressed in the regulations. I'm just asking for some clarification on that.
So, we have included provision on the face of the Bill to set out steps that will need to be followed as part of the competitive tendering exercise.
Okay, right, thank you. And just some questions around the United Kingdom Internal Market Act 2020 as well, Minister. Again, referring to section 10A as well, what's your current thinking in regard to which objectives relevant authorities will have to pursue when they procure health goods and services?
So, in respect of the UKIMA, I think where the Senedd legislates to confer regulation-making powers on Welsh Ministers, those regulation-making powers in the future will also be exercisable free from the requirements of the Act. So, whilst the detail of any future regulations has yet to be decided, we're clear that they will not engage the UK Internal Market Act.
Thank you. So, do you believe that the non-discrimination principle set out in the UKIMA could, in theory, impact on the practical effect of the objectives that apply to the procurement of goods and services?
Just to reiterate what the Minister said, which was that, with UKIMA, the view is that UKIMA wouldn't apply, but just to point out that, currently, the Procurement Bill and, we understand, the provider selection regime and the current public contract regulations all contain provisions around non-discrimination in them already. So, that framework exists in procurement legislation.
So, if I've got this right, if for example—. I'm just looking for an example, I suppose, to help understand this. So, what if the regulations, for example, on goods made in Wales—wouldn't that put goods made in England at a disadvantage and therefore breach the non-discrimation principle? Have I got that right?
As I said, the view is that UKIMA wouldn't apply in this context and, as I just said, there are provisions already in procurement legislation that cover non-discrimination, and we talked just now about the objectives that are there around transparency and fairness.
Okay. Right. Are there any other questions from Members at all? No? Rhun.
Yes, just to tease out a little bit more, as we have some time, on the safeguards issue. We've touched on the need for safeguards, and one member of the committee saw this as a Bill that could guard against cronyism, where others are perhaps more concerned that it's a licence to potentially allow cronyism. Tell us a bit more—. You said in particular that transparency was going to be important. Describe the kind of transparency that will protect us from a future Government making decisions that can lead to the wide-scale privatisation very easily of parts of health delivery in Wales, the rolling over of contracts without tendering, potentially to people—. You've described the benefits of building up networks and understanding what different people can deliver. Well, we want those networks to be transparent. They can't be old-boys' networks, they can't be political networks, for example. Just tell us a bit more about those safeguards.
Okay. Well, I'll start and then if I could bring Dafydd in and maybe Leanne will want to say a few words as well. So, as I said, we've put on the face of the Bill a requirement for transparency, but as part of the development of the regulations and the guidance, and I guess through the consultation and engagement, we will be looking for what further safeguards need to be included. So, that's the opportunity for us to pin down some of those details. Dafydd.
Yes, thank you, Minister. If we look at what was in the consultation from DHSC around transparency, there are some of the suggested steps, if you like, or safeguards, that will be put in there. As I said, we'll see them when they come through in the final regulations, but in there, it talks about things like publishing details of the intended approach quite publicly, there is publishing a notice for tender, recording decision-making processes, responding to successful bidders. So, I think there are tiers of things in here that—. And importantly, publishing the confirmation of awards—still. So, there are a number of actions that could be looked at here that make it absolutely clear that this is very public still, in terms of what has and hasn't happened, and that there would, effectively, be—. I think, in here, that there's an annual report on what has been done by a public body. So, I think, as the Minister said, we've put it on the face of the Bill that that safeguard must be there, and I think in bringing forward the regulations, we'd say, 'Well, what are those right steps and stages that effectively, then, deliver those principles for the Senedd?' But, there are some examples there where, again, we could ask in the 12-week consultation, 'Are these right? Is there something different that we should be doing in Wales?'
Can I ask—Leanne, have you got anything to add?
Just to add that, obviously, that sort of thing is already happening through procurement in Wales. Obviously, we've got the Sell2Wales platform, where things are advertised and reported on. So, there's already a reporting mechanism for this. And, as Dafydd mentioned, it is about publishing awards, et cetera, so just to demonstrate that there is that element of transparency happening.
Thank you. Jack Sargeant.
Thanks, Chair. It's on that point, isn't it, of publishing awards. And I would suggest that—maybe I'm being cynical today, but there we are, it's the end of term for me—one of the areas where we might want to differ from the UK Government is in that transparency space. Because we're talking about publishing awards, being frank here, they publish awards anyway and they just don't care. So, that's that problem, isn't it—annually publishing that 'I give money to my mate.' They do that anyway. The point being: should that money go to their mates in the first place? So, that's the space where, perhaps—. And I don't mean to tease out an answer here, because I don't think you can answer this here, but I do think that is a space that both this committee and the Welsh Government need to have a big look at.
So, I'd be more than happy to do that, and we're keen to get this right. And if you've got any particular ideas for when it comes to the guidance—when it comes to that—then let's see how far we can go with that, because I'm up for that. I think it's really important that we're as open and transparent as we can be, in order to avoid that kind of cronyism that we may see in other places.
It's ping pong, I think. [Laughter.]
One question that I have asked before, but I'll ask again, I think all of us can see benefits in being able to strengthen the relationships with third sector organisations and make tendering, or make the process of procuring, easier for them. Have you had further thoughts on the potential of differentiating between profit-making private companies and third sector charitable organisations within the Bill, and treating them, in some way, in a different way, to reflect the kind of values that we have?
Well, I'd certainly want to be more in that space, so it may be that, when it came to, 'Right. Out of the three different options that we have now, compared to the first option, then—.' It may be that, when it came to the third sector, you might want to be more interested in rolling over contracts and that kind of thing for the third sector, whereas, actually, if it's private sector, you go 'Right, back out to the market, thank you very much.' So, I think there's scope for us to look at that.
And certainly in regulation, there would be the question at this point, I guess, of: is there room to get that on the face of the Bill, even?
Well, again, until we know what we're talking about, it's really difficult. That's the problem. And I completely understand, but we don't know what's coming, you don't know what's coming, and I can see that's a frustration for you. It's a frustration for us. What we're doing with this Bill—and let's keep on remembering—that all this Bill is is a mechanism for switching off the bit that relates to health in the Procurement Bill, and switching it on back in the Wales health Act. And once that's been done, that's the end of this Bill, that's finished, you don't have to look at this ever again. So, it's not like any other; it's a framework Bill that's going to be switched, and it will be really open and transparent. So, the interesting bit—you're right—will come when it comes to the regulations.
Which we won't be able to amend.
And I get that. I understand that. I understand that that is difficult. I understand that, and I can understand the frustration. That's the way—
I suppose, what if you bring forward these regulations, and, then, at some point in the future, you want to bring different regulations, would the framework—? That's what I'm trying to grapple with.
I think that's quite an important point, because the more you put on the face of the Bill now, the more you tie yourself in not being able to adapt from learning, going forward.
But, when it comes to really important values, that's a good thing.
Yes. I was going to answer your question, Chair. I think the issue here is that, with the first set of regulations made, I'm absolutely sure that, after a number of years, after such a different change to something that's been around for years in this, you'd want to evaluate that, and understand effectively what has worked, what hasn't, and you would review those in a further set of regulations. So, the framework is giving you that flexibility to learn, with time, coming forward in the regulations.
Right. Okay. We're out of time, but I've got two questions for clarity, and, Gareth, you had a quick-fire question as well.
Thanks, Chair. Yes, really quickly. Just on this 'not knowing' basis. If we are faced with a sudden medical emergency, like COVID-19, again, or if there's a viral mutation and things change, what happens then if none of the providers under the new framework fall within providing some of those services and equipment to the NHS? You look at COVID, for example, there were very niche areas in terms of providing personal protective equipment, because they're single-use plastics. They're quite niche areas in terms of providers. So, what part of the framework could we look at to acknowledge that, just to put some contingency in in case there is a medical emergency?
Because we don't have a crystal ball, we can't see into the future.
There needs to be something, I think, there to incorporate that.
So, all of that—. Most of the examples you gave there were goods, so they wouldn't be covered by this anyway.
So, just one for clarity. I know we touched on this earlier, but we've had quite a bit of evidence in terms of the complexity of the commissioning landscape across Wales. I just want to be clear in my own mind how the Bill and any regulations will address those difficulties that have been brought to us.
Well, as I say, part of what is going to happen here is that this is going to be—. In terms of the legislative clarity, okay, this is going to be switched on and switched off, okay? So, switched off and switched on somewhere else. So, this Bill will come and go, and then you'll just have to look to the National Health Service (Wales) Act 2006.
So, just in terms of the complexity of the environment, the environment's going to change anyway, because there's going to be a new procurement Bill. Within that environment, there will be a carve-out for clinical health services. The people involved in clinical health services are a fairly small number of organisations and people, and what we're doing here is making sure that when we get to the next stage, we're going to be consulting with them, obviously, in detail. So, the people involved in the way this happens will be engaged. Most of them have been engaged already. They know this is coming. We're talking about the Welsh Health Specialised Services Committee and very specialist, specialist services. So, there are really specialist people who understand that this has come in, and obviously the next phase will be, 'Right, let's get into the detail', not just for those people who are commissioning it, but also for the people who'll be providing those services in the future. So, next time—. We've been looking at some of the providers, but I think it'll be much easier for us to consult with the providers of those services when we've got the list of what's going to be impacted.
Okay. Thank you. And my final question. I've just had a note. Earlier in this session you referred to the potential of grants being shifted to longer term grant funding. So, often, it's the case that grants are available from certain pots of money for limited times. I'm just trying to explore what you were talking about in that regard. Are you talking about grants being made available for longer term projects for funding?
I think it's important here to get the two things clear. So, grants are given to organisations for things that they want to do. Procurement is when contracts or money are given to organisations for things that you want them to. That's what buying a service is. So, this PSR would apply to when relevant authorities, local authorities, NHS want a service and want to pay for that service. So, you will always have grants, you will always have procurement services, but that's the difference between when the PSR would operate. Effectively, it's being paid for a specific ask, and by bringing the third sector along there may be more opportunities in them being part of clusters or collaboratives, as the Minister and others said.
Go on, Jack, come in.
Just very, very quickly. If you take my example, then, of Care and Repair, and they would develop this unique thing, perhaps, in Flintshire and other areas, that would be a grant, as it is now. Then you might see that the NHS or health boards want to procure that through this new regime rather than awarding them grants. Is that what you're trying to say? If you were developing something, 'There's a grant. Make sure it works', and if it does, rather than giving it on a grant basis, we will procure this off you now through the new regime.
So, I think it would come down to, 'What is the purpose here?' So, if the relevant authority wanted to go and buy a service, then that could come through this PSR. But, as I say, Welsh Government and others, if there are things that organisations want to do, that they want to do themselves, that is where a grant would still be specific. So, it's about understanding which side of the grant and procurement line you are and things can be developed on both sides.
So, it's equally as important that those organisations understand the importance of this Bill and what that could mean for them.
We're way over, aren't we, so I'll stop.
That's a fair point. Right, thank you. That was the last question then. Can I thank the Minister and her officials for the time this morning and for the technical briefing provided earlier in the session? We're very grateful for that. We'll reflect on the evidence. There's a short timescale for us as well; we'll look to publish our report just after Easter. But, on that note, I trust you'll have, at some point, some time to have a rest over the Easter break, for the Minister and officials. So, diolch yn fawr iawn. Thanks for being with us this morning.
We'll move to item 3. There are a number of papers to note that I'll just whizz through quickly. There's the Welsh Government's response to the committee's report on the draft budget; the letter from the Finance Committee; correspondence from the Equality and Social Justice Committee regarding its inquiry into data justice; the committee's letter to the Minister for Health and Social Services regarding endoscopy services; and some various correspondence regarding the Health Service Procurement (Wales) Bill. They're in the public agenda and the private packs this morning. So, are Members happy to note those? Thank you very much.
bod y pwyllgor yn penderfynu gwahardd y cyhoedd o weddill y cyfarfod ac o eitem 1 i eitem 3 ar agenda'r cyfarfod a gaiff ei gynnal ddydd Iau, 27 Ebrill 2023 yn unol â Rheol Sefydlog 17.42(vi) a (ix).
that the committee resolves to exclude the public from the remainder of the meeting and from items 1 to 3 at the committee's meeting on Thursday, 27 April 2023 in accordance with Standing Order 17.42(vi) and (ix).
Cynigiwyd y cynnig.
I move to item 4. In accordance with Standing Order 17.42, I would resolve to exclude the public for the remainder of this meeting and items 1 to 3 at the committee's meeting on Thursday 27 April. We'll be then, hopefully, discussing our draft of this report. Are Members content? We'll move into private session.
Derbyniwyd y cynnig.
Daeth rhan gyhoeddus y cyfarfod i ben am 11:08.
The public part of the meeting ended at 11:08.