Closed consultation

Tackling modern slavery in NHS procurement: proposed regulations and guidance

Published 21 November 2024

Applies to England

Introduction 

The UK government is committed to eradicating the crime of modern slavery both domestically and abroad. Since the publication of the first modern slavery statement in 2020, concerted action across government has ensured that risks of modern slavery in our supply chains are diligently identified and addressed. 

Under the Modern Slavery Act 2015, the UK became the first country to require organisations to publicly report on the steps they are taking to prevent modern slavery in their operations and supply chains.

The procurement policy note 02/23: tackling modern slavery in government supply chains (PPN 02/23) details the requirements that in-scope organisations of this PPN must take to ensure modern slavery risks are identified within their procurement activities, and how these risks should be managed in government supply chains. In-scope organisations of PPN 02/23 are central government departments, executive agencies, non-departmental public bodies and, notably, NHS bodies. 

It is the government’s view that the NHS has a significant role to play in combatting modern slavery through taking steps to ensure that NHS supply chains and business activities are free from ethical and labour standards abuses. 

The Health and Care Act 2022 introduced 2 duties relating to modern slavery in supply chains within the health service.

The first, at section 47, required the Secretary of State to undertake a review of modern slavery in NHS supply chains. This report was presented to Parliament in December 2023, making the recommendation for the Secretary of State to continue implementing modern slavery regulations, which are the subject of this document.  

Section 81 of the Health and Care Act 2022 inserted section 12ZC into the National Health Service Act 2006 (the NHS Act 2006) for the Secretary of State for Health and Social Care to make such regulations as the Secretary of State thinks appropriate with a view to eradicating the use in the health service in England of goods or services that are tainted by slavery and human trafficking. The intention is that the regulations will impose broad legal duties in relation to modern slavery and procurement. For clarity, the regulations will only apply to public bodies conducting procurement activity in England.

These duties will be imposed on public bodies procuring goods or services for the purposes of the NHS, and they will sit alongside guidance, which will set out the detail of how the duties can best be complied with. Public bodies will have to have regard to any relevant guidance issued by NHS England in carrying out their duties under the regulations. 

We are inviting public bodies, suppliers and interested members of the public to give us their views on the proposed regulations. The consultation is seeking views on a wide range of considerations including:

• how the regulations will be implemented
• the impact of the regulations on tackling modern slavery
• how frameworks and dynamic markets (as defined within the Procurement Act 2023) should assess and manage modern slavery risks
• how public bodies want to be supported to implement these new duties

NHS regulations: why we need them

An estimated 50 million people live in modern slavery across the world. Modern slavery exists in every country, including the UK, with instances of forced and child labour documented within the supply chain of the health and social care sector. 

Parliament has been clear that goods made with, or services delivered with, forced labour have no place in the NHS. The government, supported by NHS England and the Department of Health and Social Care (DHSC), wants to send a clear signal that the NHS should not be purchasing any goods or services which have been tainted by slavery or human trafficking.  

The requirement to make regulations was therefore added to the NHS Act 2006 (as inserted by the Health and Care Act 2022) to support this ambition, and these proposed regulations will fulfil the Secretary of State’s obligation under the amended NHS Act 2006. 

By introducing these regulations, DHSC is committed to eradicating modern slavery for goods and services used in the health service, building on the commitments already included within government policy (in particular PPN 02/23). These regulations extend to other public bodies not currently in scope of PPN 02/23 to ensure any procurement for goods and services for the NHS is assessed and supply chain risk of modern slavery is mitigated. 

The regulations will introduce requirements for public bodies to identify and mitigate risk to resolve modern slavery issues in their supply chains, and to signal to suppliers that the health service will not tolerate human rights abuses. Public bodies will require suppliers to review and improve their practices in accordance with these regulations. 

The regulations include the requirement to assess risk, and where risk is assessed, take reasonable steps during both pre-procurement and procurement stages. Reasonable steps are presented within the guidance as a range of options to implement within procurement activity, contracts, frameworks and dynamic markets, as mitigation to assessment of modern slavery risk. The guidance is published in draft form with this consultation - see ‘Tackling modern slavery in NHS procurement (draft guidance)’ on the consultation page.

Mitigation measures should be included in contracts to manage identified modern slavery risk, and to ensure any risks or issues detected during the term of a contract can be adequately remedied. It is intended that reasonable steps taken in response to identified modern slavery risks must be proportionate to the level of assessed risk and relevant to the specific subject matter, procurement or contract. The regulations will be broad in nature, and more specific detail on implementation will be included in guidance. 

Scope of the policy 

The organisations that the regulations apply to will be referred to collectively as public bodies. These do not just apply to NHS bodies but will apply to any public body that is procuring any goods or services (other than excluded goods and services) for the purposes of the health service in England, such as framework providers and local authorities. The term ‘public body’ will be defined within the regulations.  

The regulations are drafted to cover public bodies which procure goods and services for the purposes of the NHS rather than applying to a defined list of public bodies. Any public body procuring goods and services for the purposes of the NHS will be in scope. It is recognised that most procurements in scope of these regulations will be conducted by organisations connected to the NHS. For illustrative purposes, some non-exhaustive examples of who the regulations apply to are listed below: 

• DHSC when procuring goods and services for the purposes of the health service (whether NHS or public health)
• NHS England when procuring goods and services for the purposes of the health service (whether NHS or public health)
• integrated care boards (ICBs) when procuring goods and services for the purposes of the health service (whether NHS or public health)
• NHS trusts and NHS foundation trusts when procuring goods and services for the purposes of the health service, including when arranging the provision of healthcare services by other providers (whether NHS or public health)
• local authorities when procuring goods and services for the health service as part of their public health functions, in section 75 partnership arrangements with the NHS, and when working collaboratively with other public sector authorities procuring goods and services for the health service
• framework owners such as NHS Shared Business Services and the Crown Commercial Service, when procuring goods and services for the purposes of the health service

The regulations will apply in any circumstance where a public body is a named authority that has a right to call off a framework or dynamic market. (A call-off contract is a contract between a buyer and framework supplier. The call-off process is a set of instructions a buyer must follow when buying through (or ‘calling off’) a framework. Direct award or further competition tend to be the most common buying processes available, depending upon the framework you wish to use.)

It is recognised by DHSC and NHS England that local authorities are not currently required to implement risk assessment methodologies within PPN 02/23 but will now fall inside the scope of these regulations when procuring goods and services for the NHS. While some authorities may have chosen to implement the PPN as invited within the scope, others may not routinely undertake these requirements. In this regard, we hope that those impacted by these new regulations within local authorities will engage with us, so we know how best to support when implementing with these new duties.  

The guidance drafted by NHS England applies to any organisation procuring goods or services to deliver health services, and therefore applies to local authorities. This consultation is seeking views from all affected public bodies to provide feedback on the guidance included with this consultation (published in draft form).  

The New burdens doctrine will be conducted following consultation by the department to determine expected resource, effort and any potential costs to local authorities which may occur in implementing these regulations.  

The regulations have been drafted to align with the rules in the Procurement Act 2023 and Provider Selection Regime (as described at paragraph 6). Procuring or procurement in the regulations refers to “the award, entry into and management of a contract”.  

All goods and services procurements for the purposes of the health service In England will be in scope and are not limited by any financial threshold. 

These regulations only apply in England. 

These regulations would not apply to:  

• contracts for the provision of works
• contracts of employment or secondment, including arrangement of fees for appointment to a public office
• grants
• loans, guarantees and financial assistance
• funding transfers between NHS bodies
• contracts relating to the acquisition or rental of an interest in land or property leases

Works are not in scope of the Secretary of State’s duty to make regulations (in section 12ZC of the NHS Act 2006) and therefore the regulations will not cover the procurement of works as that term is used in other procurement legislation. Public bodies in scope of PPN 02/23 would still need to apply the PPN where procurements of works are undertaken. It is nevertheless recommended as best practice that all procurement activity is risk assessed for modern slavery. We look forward to receiving views during the consultation to further support in shaping this guidance.  

Overview of the regulations 

The intention of the regulations is to introduce requirements during the commercial lifecycle, to undertake risk assessments and to take reasonable steps to mitigate identified modern slavery risks in order to eradicate modern slavery. The regulations apply to all contracts for the purposes of procuring goods and services to the NHS and also contain requirements for frameworks and dynamic markets. 

Activities to be carried out during the commercial process 

DHSC wants the regulations to require public bodies to assess the level of risk of modern slavery and human trafficking taking place in relation to the suggested procurement of goods or services. Where the public body considers such a risk to exist, they should be obliged to take reasonable steps to mitigate the risk. The guidance will define what proportionate actions could be taken to address the risk.

The regulations will apply to procurement conducted following the regulations coming into force and will not apply retrospectively. Public bodies will still be required to ensure compliance with the PPN for any existing agreements.

Requirement to undertake a risk assessment  

It is being proposed by DHSC that the regulations place a duty on public bodies to complete a modern slavery risk assessment prior to advertising an opportunity or, where competition is not used, prior to the contract being signed.  

The regulations align requirements to undertake a risk assessment with the new procedures and transparency notices included within the Procurement Act 2023 and Provider Selection Regime.  

Requirement to take reasonable steps to mitigate the risks  

Where risks are identified, the regulations impose an obligation on public bodies to take reasonable steps to address and where possible eliminate the identified risks. The regulations set out an example list of what ‘reasonable steps’ should be taken to allow a proportionate response after a consideration of the type of procurement by a given public body. Reasonable steps should be taken when: 

• designing a procurement procedure for the purposes of awarding the contract or framework or dynamic market
• setting the conditions of participation or award criteria in relation to the contract or framework or dynamic market
• setting the terms of the contract or framework or dynamic market
• managing the contract or framework or dynamic market

The guidance will describe what risk drivers might constitute high, medium or low risk (which is still in development) and suggested reasonable steps to take in those circumstances.  

Frameworks and dynamic markets 

The regulations also contain provision in relation to how modern slavery risks should be addressed when conducting framework activity or establishing a dynamic market. The regulations propose there should be obligations for a public body to: 

• assess the level of risk of modern slavery taking place in relation to the supply chain activity in scope of a framework or dynamic market
• take reasonable steps to mitigate any risks identified in that risk assessment
• manage and review any risks during the term of the framework or dynamic market
• reassess all frameworks and dynamic markets periodically

The regulations will aim to reduce bureaucratic obligations on public bodies in that if the owner of a framework or dynamic market has conducted a risk assessment, the procuring public body calling off a framework or dynamic market can rely on that risk assessment for contracts awarded under the terms of the framework or dynamic market. A public body should ensure that during their call-off activities, the risk assessment is up to date and relevant to the specific requirements of the subject matter, procurement and contract.   

Framework and dynamic market owners will be required to periodically reassess the risk during the term. This is particularly important for long-term agreements or developing markets. This requirement will be proportionate and relevant to the subject matter, procurement, initial risk and supply chain.  

Main provisions 

The regulations contain the following provisions:  

Regulation 3 sets out the application of the regulations. They will apply to a public body procuring goods or services other than excluded goods and services for the purposes of the health service in England. Regulation 3(2) provides a list of excluded goods and services. 

The regulations require public bodies undertaking a procurement of any good or service for the purposes of the health service to first assess whether there is a modern slavery risk and the extent of any modern slavery risk (regulation 4). Where the procurement relates to a framework agreement or dynamic market, a risk assessment must be carried out in accordance with regulation 5 (for framework agreements) or regulation 6 (dynamic markets).

When that assessment identifies that there is a modern slavery risk, the public body is required to take reasonable steps to address and where possible eliminate that risk (regulation 7). The reasonable steps taken in response must be proportionate to the level of the assessed risk and relevant to the contract, framework agreement or dynamic market (regulation 7(2)). 

The regulations identify reasonable steps which could be taken in relation to the procurement process (regulation 8) and in relation to the management of the contract, framework agreement or dynamic market (regulation 9). These reasonable steps include responding to any instance of slavery or human trafficking and reassessing the extent of the modern slavery risk.  

Reasonable steps would be applied for all levels of risk. The guidance provides more detail regarding the implementation of reasonable steps for the levels of risk identified.  

The reasonable steps included within the regulations are not exhaustive and public bodies can apply other reasonable steps that are proportionate to level of risk assessed and relevant to the subject matter.  

Regulation 10 provides that there is a duty on framework and dynamic market owners to reassess risk during the term of the framework or dynamic market.

The regulations also require public bodies to have regard to any relevant guidance issued by NHS England in making a risk assessment and in taking any reasonable steps to address an identified modern slavery risk (regulation 11).

Further considerations 

Significant consideration has been given in the drafting of these regulations to ensure interaction with procurement legislation, modern slavery legislation and procurement policies. Attention has been given to: 

• the Procurement Act 2023, which received Royal Assent in October 2023. The Procurement Act reforms the way public authorities purchase goods, services and works by simplifying and modernising procurement rules and procedures. These regulations are set to be implemented after the Procurement Act comes into force. The Procurement Act will repeal several procurement laws and replace them with a single legal framework. The Procurement Act 2023 will repeal the Public Contracts Regulations 2015 (PCR), which have been used for historical basis and understanding
• PPN 02/23: tackling modern slavery in government supply chains - PPNs are statements of government policy that public bodies are required to implement if they are deemed to be ‘in scope’. The PPN and guidance sets out a risk-based approach to identifying and managing modern slavery risks across government’s commercial activities, and these regulations align to the contents of the PPN so as not to create disparity for public bodies and markets when implementing these requirements
• NHS-specific procurement legislation such as the Health Care Services (Provider Selection Regime) Regulations 2023 (PSR)

These regulations also interact with: 

• the Modern Slavery Act 2015, which is designed to combat modern slavery in the UK and consolidates actions for previous offences relating to trafficking and slavery. These regulations do not impact any duties contained within the act relating to procurement and supply chain activity
• the Public Services (Social Value) Act 2012, which requires all public sector organisations and their suppliers to look beyond the financial cost of a contract to consider how the services they commission and procure can improve the economic, social and environmental wellbeing of an area
• PPN 06/20: taking account of social value in the award of central government contracts, which contains a model for in-scope organisations to deliver social value benefits through their commercial activities aligned with government policy outcomes. Modern slavery award criteria are included and could be considered as an approach to taking reasonable steps within procurement activity in response to assessment of risk in supply chains

As noted in the main provisions, NHS England will provide the guidance to support implementation of these regulations by:  

• defining how management of risk will vary depending on the level of risk identified and type of the agreement being procured
• defining specifically how risks are identified at pre-procurement stage, which will be similar to the process under PPN 02/23
• describing how reasonable steps should be applied in procurements where risk is found

The guidance has been informed by the NHS supply chain review (as referenced in the introduction). 

Recourse mechanism 

We do not intend for there to be any specific recourse mechanism in the regulations (that is, any mechanism to enforce compliance with the requirements in the regulations).

Any breach of duties under these regulations could be challenged using judicial review.  

Consultation questions 

Organisations

How many commercial practitioners are employed in your organisation (including commissioners and procurement and contract management professionals)?

Please present as a whole number. Where an individual undertakes one or more of these roles, please only count them once.

The Cabinet Office released procurement policy note 02/23: tackling modern slavery in government supply chains (PPN 02/23), which required organisations in scope of the PPN to:

• comply with risk assessment methodologies detailed within the PPN
• respond to the risk within procurement and contract activity

Is your organisation in scope of PPN 02/23?

• Yes
• No
• Don’t know

If you answered yes, how far has your organisation implemented PPN 02/23?

• Started
• In progress
• Implemented
• Not applicable
• Don’t know

Draft regulations and guidance

The Secretary of State’s statutory duty in section 12ZC of the NHS Act 2006 prescribes a broad duty to implement modern slavery regulations to eradicate the use of goods and services tainted by slavery and human trafficking.

The regulations are ‘National Health Service (Procurement, Slavery and Human Trafficking) Regulations 2024 (draft regulations)’ on the consultation page.

The guidance is ‘Tackling modern slavery in NHS procurement (draft guidance)’ on the consultation page.

Do you agree or disagree that the regulations address the Secretary of State’s statutory duty in section 12ZC of the NHS Act 2006? 

• Agree
• Neither agree nor disagree
• Disagree
• Don’t know

Please provide your views, evidence or experience to support your answer. For comments linked to a specific regulation, please identify the reference in your response. (Maximum 250 words)

Do you agree or disagree that the guidance is sufficiently consistent with the regulations as drafted?

• Agree
• Neither agree nor disagree
• Disagree
• Don’t know

Please provide your views, evidence or experience to support your answer. For comments linked to a specific regulation or section in the guidance, please identify the reference in your response. (Maximum 250 words)

Regulation 3(1) states that the regulations apply to a public body procuring goods and services for the purposes of the health service in England.

Do you agree or disagree that regulation 3 clearly defines the goods and services in scope?

• Agree
• Neither agree nor disagree
• Disagree
• Don’t know

Please provide your views, evidence or experience to support your answer. For comments linked to a specific regulation, please identify the reference in your response. (Maximum 250 words)

Frameworks and dynamic markets

The regulations require the periodic reassessment of risk through the term of the framework or dynamic market.

Regulation 10(2) sets out factors which a public body must consider when determining how often to carry out a reassessment.

Regulation 10(3) sets out a list of circumstances in which a public body must reassess risk. In the event that the requirements of regulation 10(3) do not apply, the guidance recommends that a risk assessment take place no less than every 2 years.

Do you agree or disagree that a proportionate and relevant reassessment of risk should be required during the term of the framework or dynamic market to ensure modern slavery risks are identified in line with the duties and guidance? 

• Agree
• Neither agree nor disagree
• Disagree
• Don’t know

Please provide your views, evidence or experience to support your answer. For comments linked to a specific regulation or section in the guidance, please identify the reference in your response. (Maximum 250 words)

The guidance includes expectations about what should occur at the end of a framework or dynamic market in relation to the duty to reassess risk (see the ‘Reassessment of risk’ section in the guidance).

Do you agree or disagree with the proposed measures within the guidance for end of framework or dynamic market activities in relation to reassessment of risk? 

• Agree
• Neither agree nor disagree
• Disagree
• Don’t know

Please provide your views, evidence or experience to support your answer. For comments linked to a specific regulation or section in the guidance, please identify the reference in your response. (Maximum 250 words)

Modern slavery risk assessments

Modern slavery risk assessments will result in an outcome of low, medium or high risk of modern slavery. The reasonable steps included in regulations 8 and 9 set out a range of options that could be applied to respond to the level of risk. The guidance will describe when during procurement the reasonable steps should apply.

Do you agree or disagree that the guidance is sufficiently consistent with existing policy set out in PPN 02/23: tackling modern slavery in government supply chains?

• Agree
• Neither agree nor disagree
• Disagree
• Don’t know

Please provide your views, evidence or experience to support your answer. (Maximum 250 words)

The guidance includes reasonable steps relating to the application of the social value model set out in PPN 06/20: taking account of social value in the award of central government contracts.

Do you think the guidance is sufficiently consistent with existing policy set out in PPN 06/20?

• Agree
• Neither agree nor disagree
• Disagree
• Don’t know

Please provide your views, evidence or experience to support your answer. (Maximum 250 words)

Do you agree or disagree that the ‘reasonable steps’ detailed within the guidance are sufficient to mitigate risks of modern slavery in NHS procurements? 

• Agree
• Neither agree nor disagree
• Disagree
• Don’t know

Please provide your views, evidence or experience to support your answer. (Maximum 250 words)

Suppliers and trade associations

As a potential supplier to the health sector, do you see any challenges in implementing the reasonable steps, should modern slavery risk be identified? 

• Yes
• No
• Don’t know

Please provide your views, evidence or experience to support your answer. (Maximum 250 words)

Guidance: what else could help you

What more would you like to see from the accompanying guidance which will aid you in adopting processes or complying with these regulations? (Maximum 250 words)

Broader impacts of the regulations

Are there any other broader impacts of these regulations that should be taken into consideration which have not already been considered within this consultation? (Maximum 250 words)

How to respond 

We hope to achieve broad support for these proposed regulations, and we want to hear from as many people as possible. The responses will inform the development of the regulations, and the subsequent NHS England guidance.  

The consultation is open for 12 weeks. The deadline for responding is 11:59pm on 13 February 2025. Please respond using the online survey. 

If you require any clarification on the consultation document, email the DHSC Commercial Policy Team on commercialpolicy@dhsc.gov.uk. Do not send any personal information or consultation responses to this email address.   

The consultation is issued by DHSC on behalf of both DHSC and NHS England. The response to the consultation will be published by DHSC as a joint response on behalf of DHSC and NHS England as soon as possible after the consultation closes.  

Privacy notice 

This notice sets out how we will use the information collected through this call for evidence, as well as your rights as a respondent under the UK General Data Protection Regulation (GDPR). 

Summary of policy

DHSC is seeking views from relevant public bodies, interested parties and the public on the draft regulations and guidance seeking to eradicate slavery and human trafficking from NHS supply chains in England.

The regulation will impose legal duties to assess modern slavery risk in NHS supply chains and take reasonable steps in a proportionate and relevant way when buying goods and services for the NHS. This will include duties requiring public bodies to first assess the extent of the modern slavery risk in relation to that procurement and then take reasonable steps to address and where possible eliminate that risk.

Data controller 

DHSC is the data controller. 

What information we collect 

When you respond to the consultation online, we will collect information on: 

• whether you’re responding as an individual member of the public or on behalf of an organisation
• the name of your organisation (if you’re responding on behalf of an organisation)
• the number of commercial practitioners employed in your organisation (if you volunteer this information and if you’re responding on behalf of an organisation)

How we use your information 

We collect your information as part of the consultation process: 

• for statistical purposes - for example, to understand how representative the results are and whether views and experiences vary across organisations
• to reduce the likelihood of individuals being able to submit multiple responses

Legal basis for processing your information 

The legal basis for processing your information is to perform a task carried out in the public interest, specifically that of consulting the public on the draft of the National Health Service (Procurement, Slavery and Human Trafficking) Regulations 2024 (MSR) before the draft regulations are laid in Parliament in accordance with section 12ZC of the NHS Act 2006. 

Who your information may be shared with 

Responses to the online consultation may be seen by: 

• DHSC officials running the consultation process
• officials from other government departments and devolved administrations who will be reviewing the consultation responses
• DHSC’s third-party supplier (SocialOptic), who is responsible for running and hosting the online survey

International data transfers and storage locations 

Storage of data by DHSC is provided via secure computing infrastructure on servers located in the European Economic Area. DHSC platforms are subject to extensive security protections and encryption measures. 

Storage of data by SocialOptic is provided via secure servers located in the UK. 

How long we keep your information 

We will hold your personal information for up to one year after the online consultation closes. Anonymised information will be kept indefinitely. 

We will ask SocialOptic to securely delete the information held on their system one year after the online consultation closes. 

How we protect your information and keep it secure 

DHSC uses a range of technical, organisational and administrative security measures to protect any information we hold in our records from: 

• loss
• misuse
• unauthorised access
• disclosure
• alteration
• destruction

We have written procedures and policies that are regularly audited and reviewed at a senior level. 

SocialOptic is Cyber Essentials certified. This is a government backed scheme that helps organisations protect themselves against the most common cyber attacks. 

Your rights 

By law, you have a number of rights, and processing your data does not take away or reduce these rights under the UK  GDPR and the UK Data Protection Act 2018. 

You have the right to: 

• ask for and receive copies of information about you
• get information about you corrected if you think it is inaccurate
• limit how your information is used - for example, you can ask for it to be restricted if you think it is inaccurate
• object to your information being used
• get information deleted

Some of these rights might not apply when the information is being used for research. We will let you know if this is the case. 

Contact us or make a complaint 

We will always try to respond to concerns or queries that you have about your data. 

If you are unhappy about how your information is being used, or if you want to complain about how your data is used as part of this consultation, you should email data_protection@dhsc.gov.uk or write to: 

Data Protection Officer
39 Victoria Street
London
SW1H 0EU

If you are still not satisfied, you can complain to the Information Commissioner’s Office (ICO). You can find out how to contact them at the ICO website. Their postal address is: 

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Changes to this privacy notice 

We keep this privacy notice under regular review, and we will update it if necessary. All updated versions will be marked by a change note on the consultation page. This privacy notice was last updated on 21 November 2024.