Last week, the courts prevented a long-planned social enterprise from being created in Gloucestershire. The protaganist here wasn't Unison or the BMA but a 68 year old bloke who believed that such services ought to be kept in the NHS - and open to NHS providers to compete for.
Ahead of a verdict, the social enterprise has been pulled. Game over.
The net result of this will, of course, be a procurement exercise, the outcome of which might be well be not an NHS provider but a private sector one. This gentleman may rue the day he successfully stopped a social enterprise in its tracks.
So what does this mean for social enterprise and mutuals in public services?
It definitely brings EU competition law clearly into the frame when NHS bodies and Councils are looking at spin-outs. Competition law states fairly clearly that where there is a market for services - even when these are social or healthcare services - there should be open competition. Exception can be granted - but only where there is a clearly evidenced, higher reason for this.
However, there are ways to address this which also give nascent social enterprises a chance before facing the competitive market. Firstly, they can operate as independent business units in 'shadow' ahead of formal procurement - so that a trading record can be established.
Secondly, there is often not a straightforward procurement solution to the complex problems that a potential social enterprise is being set up to address. Councils in particular do often want to see a key local player in place which addresses a host of challenges, some of which do not easily lend themselves to procurement..
Thirdly, an NHS body or Council can set up a joint venture with the competition law satisfied by the process involved in selecting a JV partner. We haven't seen much of this so far, but I suspect it will become more common as procurement becomes more of a roadblock.