Memorandum of understanding - NHS Consortium for Global Health

Published: 1 May 2024 Page last updated: 24 May 2024

Memorandum of understanding for the NHS Consortium for Global Health

Between:

  1. NHS England (NHSE);
  2. UK Health Security Agency (UKHSA);
  3. National Institute for Health & Care Excellence (NICE);
  4. NHS Resolution (NHSR);
  5. Office for National Statistics (ONS); and
  6. Public Health Wales (PHW)
  7. Health Research Authority (HRA)

(together, the Member organisations)

Background

(A) The Members have operated as a Consortium under a memorandum of understanding effective from 1st April 2020 until 30th September 2022 (the BHP MOU, a copy of which is annexed at Schedule 1 Annex 1) to act as a “Strategic Partner” to the Foreign, Commonwealth & Development Office (FCDO) Better Health Programme (BHP) to deliver a programme of Overseas Development Assistance-eligible technical assistance through the delivery of technical inputs and strategic advice across the BHP.

(B) The Members now wish to further strengthen and develop the Consortium under the terms of this MOU in order to expand its capability within global health programming for a range of stakeholders. In particular, the Members wish to enable the Consortium to develop working agreements with a range of partners and to generate income from a range of sources, including Official Development Assistance (ODA), non-ODA and commercial opportunities.

(C) The Members have formed and will operate the Consortium as a partnership of equals, inclusive of national health service-related arm’s length bodies, executive agencies and non-departmental public bodies from England, Scotland, Wales and Northern Ireland.

(D) Unless otherwise agreed by the Members, NHSE will enter into any funding, partnership or grant agreements or other service contracts with third parties (referred to in this MOU as Contracts) as agreed between the Members, on behalf of the Consortium and is referred to as the Host Member.

(E) Participation in the Consortium, and all activities related to it, is to be undertaken in a way which does not detract from any Member’s ability to fulfil their respective statutory functions supporting the NHS in England, Scotland, Wales and Northern Ireland.

(F) For the avoidance of doubt, the BHP MOU will remain in force until 30 September 2022 unless extended, or terminated earlier, in accordance with its terms, save that the Members have agreed that the governance arrangements contained in Schedule 3 of this MOU will also oversee the BHP arrangements from the Commencement Date of this MOU unless and until otherwise agreed between the Members.

The Members have reached the following understandings:

1. Purpose

(a) The purpose of this MOU is to set out how the Members will work together to achieve the Consortium’s vision in line with its values, and to support NHSE in its role as Host Member. The Consortium’s vision, mission and values are set out in the NHS Consortium for Global Health Strategic Framework contained in Schedule 1, Annex 2 of this MOU,(which may be varied by agreement of the Members in writing in accordance with Clause 7 of this MOU).

(b) As Host Member, NHSE shall enter into such Contracts as the Members may agree from time to time in accordance with the terms of this MOU and in particular the process set out in Schedule 2 (Procedure for Consideration of Proposals).

(c) The Members agree that they will co-operate and collaborate with each other in relation to the programmes undertaken by the Consortium in order to achieve the Consortium vision and mission, and will operate in line with the Consortium values at all times.

(d) The Consortium will not undertake any activities under this MOU other than those that are approved in accordance with the procedure at Schedule 2.

2. Principles of collaboration

The Members agree to adopt the following principles under this MOU and to:

(a) establish and adhere to the governance structure set out in this MOU to ensure that activities are delivered and actions taken as required;

(b) take on, manage and account to each other for performance of the respective roles and responsibilities set out in this MOU;

(c) communicate openly about major concerns, issues or opportunities relating to any Projects;

(d) share information, experience, materials and skills to learn from each other and develop effective working practices, work collaboratively to identify solutions, eliminate duplication of effort, mitigate risk and reduce cost;

(e) behave in a constructive and proactive manner;

(f) comply with applicable laws and standards including public procurement rules, data protection and freedom of information legislation;

(g) recognise the time-critical nature of any Projects and respond accordingly to requests for support;

(h) manage stakeholders effectively;

(i) ensure sufficient and appropriately qualified resources are available and authorised to fulfil the responsibilities set out in this MOU;

(j) act in good faith to support achievement of the Consortium vision and mission and compliance with these principles of collaboration; and

(k) work in a manner that does not bring any Member and/or the Consortium into disrepute.

3. Duration and review

(a) This MOU will commence on 1 April 2023 (the Commencement Date) and, subject to earlier termination in accordance with Clause 17, shall continue in force for 3 years until 31 March 2026 when it will expire unless extended for a further period or periods as may be agreed in writing by the Members.

(b) The Members shall review the terms of this MOU on an annual basis. Any amendments to the MOU following such review shall be effected in accordance with Clause 7.

(c) In the event of any conflict between the terms of this MOU and the terms of the BHP MOU in respect of matters relating to the BHP, the terms of the BHP MOU shall prevail. In all other circumstances, the terms of this MOU shall prevail.

4. Proposed Projects

(a) The Members agree that the terms of this MOU shall apply when any Member wishes to propose (Proposing Member) to the other Members a project (Project) falling within the scope of the Consortium vision and mission.

(b) A Proposing Member may submit a proposal for a proposed Project in accordance with the procedure set out in Schedule 2.

(c) If the Steering Group approves the proposal following the procedure in Schedule 2, then the participating Members shall work together to formalise the proposal into a Project, including reviewing and agreeing the terms of any associated proposed Contract.

(d) In order to formalise a proposal into a Project, the participating Members shall work together with the Host Member to produce a draft Project Schedule based substantially on the template project schedule (Project Schedule) contained in Schedule 2 -Annex 2 (adding certain matters, or excluding certain matters, as relevant to the particular Project). The Project Schedule should also reflect and/or flow down terms and conditions from any related Contract as appropriate and set out how any potential liabilities under such Contract(s) will be shared between the participating Members.

(e) The participating Members involved in the Project shall sign the Project Schedule once finalised. Once signed by the participating Members, a Project Schedule becomes part of this MOU. In the event of conflict between the terms of this MOU and a Project Schedule in relation to a Project, the terms of the relevant Project Schedule shall take precedence.

(f) A Project Schedule that has been signed by all participating Members may be amended at any time in accordance with Clause 7.

(g) Each Member shall in relation to any obligations allocated to it in a Project Schedule agreed in accordance with this Clause:

  1. perform such obligations, including by providing inputs in accordance with timeframes or milestones (if any) specified in the Project Schedule;
  2. use reasonable care and skill in performing such obligations;
  3. comply with good industry practice;
  4. comply with all laws applicable to it;
  5. obtain and maintain consents, licences and permissions (statutory, regulatory, contractual or otherwise) that are necessary to enable it to comply with such obligations; and
  6. ensure that the inputs it provides conform with descriptions and specifications (if any) set out in the applicable Project Schedule.

5. Sub-contracting

Any sub-contracting by any Member of activities to be delivered by the Consortium must be agreed by all Members in advance. Any activities sub-contracted by a Member remain the legal and financial responsibility of the sub-contracting Member.

6. Financial arrangements

(a) The Host Member will enter into such Contracts in respect of Projects as are agreed by the Members in line with the Consortium vision and values, and pursuant to the procedure set out in Clause 4 and Schedule 2. Such Contracts should set out the terms and conditions attached to any funding paid to the Host Member on behalf of the Consortium by a funder or grant making body, or other service recipient.

(b) The financial principles agreed between the Members in respect of Projects are set out in Schedule 5.

7. Amendment of this MOU

Any amendment to this MOU will be agreed by all Members and made in writing.

8. New Members and successor organisations

Additional organisations may become parties to this MOU on such terms as the Members shall jointly agree in writing (which shall be a variation in accordance with Clause 7) acting at all times in accordance with the Consortium’s vision and values. Any new Member will be required to agree in writing to the terms of this MOU before admission.

9. Governance

(a) An overview of the governance structure for the Consortium is set out in Schedule 3.

(b) Strategic oversight of the work of the Consortium will be undertaken by the Oversight Group, comprised of representatives from Department of Health and Social Care (DHSC), Department for International Trade (DIT) and FCDO to ensure alignment with UK government global health objectives.

(c) Functional oversight of the work of the Consortium will be undertaken by the Steering Group, comprised of representatives from the Members. The Steering Group will oversee the work of the Consortium Secretariat.

(d) The delivery of the Projects will be by a cross-organisation policy team, the Consortium Secretariat, responsible for the organisation of missions overseas, developing reports, and drafting tenders as needed and the design and establishment of arrangements for the implementation phase of the Consortium.

(e) Members of the Consortium will meet quarterly at the Steering Group to receive reports from the Secretariat and assure the delivery of the Projects. The Terms of Reference for the Steering Group are attached at Schedule 4.

10. Hosting arrangements

(a) Unless otherwise agreed between the Members, NHSE shall be the Host Member for the purposes of this MOU and the Consortium.

(b) The Host Member shall (subject to Clause 10(c)):

  1. negotiate and enter into such Contracts as may be agreed by the Members in relation to Projects in accordance with this MOU;
  2. host the Secretariat for the Consortium (comprised of employees from NHSE and UKHSA as at the Commencement Date) and provide administration support to the Steering Group;
  3. maintain separate financial records in relation to the Consortium activities and Projects; and
  4. prepare reports in accordance with Clause 11 below,

together, the Hosting Obligations.

(c) The Host Member shall not be obliged to carry out or perform any act (or omission) which would:

  1. conflict with the legislation, regulations, constitutional documents and standing orders governing the Host Member; or
  2. in the reasonable opinion of the Host Member, put the Host Member’s ability to deliver its statutory functions or its assets or reputation at risk.

(d) The Members agree that the Host shall be entitled to be reimbursed for the management and administrative costs reasonably incurred by the Host Member in connection with the Hosting Obligations as set out at Schedule 5.

(e) The Members acknowledge that the Secretariat may comprise employees from various Members and the Members shall cooperate with each other in relation to any staffing issues including grievances or disciplinary matters. A Member employing any Secretariat staff member (the employing Member) shall remain responsible for line managing their employees and for managing any complaints or claims brought against or by any of its employees working in the Secretariat in accordance with the relevant policies and protocols of the employing Member.

11. Reporting

(a) The Members will provide the Host Member with a written summary report no later than the second Monday of each month, or as otherwise agreed in writing by the Members.

(b) This report will cover the Member’s activities undertaken under any Projects (including any reporting requirements under any Contract in a timeframe as specified by the Host Member) and an assessment of progress made by the Member on Project delivery.

(c) The Host Member will collate the Members’ reports and present a consolidated report to the Steering Group on a quarterly basis.

12. Intellectual Property

(a) For the purposes of this MOU, Intellectual Property Rights shall mean patents, utility models, inventions, trademarks, service marks, logos, design rights (whether registrable or otherwise), applications for any of the foregoing, copyright, database rights, domain names, plant variety rights, know-how, trade or business names, moral rights and other similar rights or obligations whether registrable or not in any country (including but not limited to the United Kingdom) and the right to sue for passing off.

(b) All pre-existing Intellectual Property Rights or Intellectual Property Rights developed or licensed independently of this MoU (Background IPR) remains the property of the owning participant (or, where applicable, the third party from whom that participant’s right to use the Background IP has derived) and nothing in this MOU shall operate to transfer any Background IPR of one Member to the other.

(c) Subject to Clause 12(d) below and the specific terms of any Contract or Project Schedule, if relevant, any Intellectual Property Rights that are agreed in writing by the Members as being a new development, and thus foreground Intellectual Property Rights under this MOU (Foreground IPR), are vested in and owned by the Member creating or developing those rights.

(d) To the extent that any new Intellectual Property Right arises or is created, obtained or developed by any of the Members jointly, it shall be jointly owned in equal and undivided shares by the relevant Members. If any such jointly-owned Intellectual Property Rights are registrable, the relevant Members will agree who shall be responsible for the filing and processing of applications for registration on behalf of the other relevant Members and in their joint names, including in such countries as the relevant Members agree in writing, and at the expense of the joint owners of the Intellectual Property Rights. The relevant Members shall be responsible for the maintenance and renewal of any such registrations in such countries. The Members agree that the Consortium Technical Advisory Service (CTAS) database shall be considered Foreground IPR which is jointly owned by the Members in accordance with this Clause 12(d).

(e) Each Member shall grant a non-exclusive royalty-free worldwide licence to the other Members for the duration of this MOU to use any Background IPR that is owned by it and/or the use of which it is able to license, to the extent such use is necessary for the purposes of this MOU. The licence under this sub-clause © does not apply to any software or databases which are Background IPR. Any licence for software or databases which are Background IPR would be subject to separate licence terms to be agreed by the Members in writing.

(f) Each Member shall grant a non-exclusive royalty-free worldwide irrevocable licence to the other Members to use any Foreground IPR, whether jointly or solely owned, for the purposes of this MOU and for any academic and non-commercial research purposes.

13.Commercial Work

The delivery of Projects by the Consortium shall not preclude the Members from undertaking commercial activities with partner governments, organisations in partner countries or other commercial entities, provided that the relevant Member shall inform the Secretariat in writing of such activities within 90 days of such arrangements being agreed.

14. Special provisions

Members are expected to adhere to the DHSC Arms-Length Body (ALB) and Executive Agency (EA) Shared Principles for International Engagement and capture international activity via DHSC ALB reporting processes. This includes participation in the DHSC ALB International Quarterly meetings and mapping exercise as well as the provision to notify DHSC International policy leads about any and all international activity with foreign government departments and agencies.

15. Data Protection

(a) All Members will treat all information in accordance with relevant privacy and data protection laws, including the UK General Data Protection Regulation and Data Protection Act 2018.

(b) All Members will also ensure an adequate level of security when personal data is transferred to countries outside the UK

(c) NHSE will conduct quarterly internal reviews of CTAS to:

  1. ensure that information is being processed in line with the privacy and data protection laws;
  2. identify any relevant change of circumstance; and
  3. consider whether any additional data processing/data sharing agreements are required.

(d) All Members will co-operate with one another regarding the conduct of these reviews.

(3) All Members will comply with the information governance arrangements set out at Schedule 6.

16. Confidentiality

(a) Each of the Members understands and acknowledges that it may receive or become aware of confidential information belonging to the other Members whether in the course of the performance of this MOU or otherwise. For the avoidance of doubt, the Members acknowledge that separate confidentiality arrangements may be required on a case by case basis for certain packages of work that may be agreed under this MOU.

(b) Except to the extent set out in this Clause or where disclosure is expressly permitted elsewhere in this MOU, each Member must:

  1. treat each other Member’s confidential information as confidential and safeguard it accordingly; and
  2. not disclose another Member’s confidential information to any other person (except their employees, agents and professional advisers to the extent to which such disclosure is necessary for the purposes contemplated under this MOU, and subject to procuring that such persons are made aware of, and comply with, these obligations of confidentiality).

(c) The obligations of confidentiality imposed by Clauses 15(a) and 15(b) do not apply to any confidential information to the extent that it is required to be disclosed:

  1. by a requirement of law placed upon the Member making the disclosure (including any requirements for disclosure under the Freedom of Information Act 2000 and/or the Environmental Information Regulations 2004 or Code of Practice on Access to Government Information);
  2. to a Member’s auditors or for the purposes of regulatory requirements;
  3. on a confidential basis, to a Member’s professional advisers;
  4. to the Serious Fraud Office where a Member has reasonable grounds to believe that another Member is involved in activity that may constitute a criminal offence under the Bribery Act 2010;
  5. to a Member’s staff on a need to know basis to enable the performance of the obligations under this MOU provided that the receiving Member shall procure that any staff to whom it discloses confidential information pursuant to this Clause 15 shall observe the receiving Member’s confidentiality obligations under this MOU;
  6. on a confidential basis to any other central government body, any contracting authority (within the meaning of the Public Contracts Regulations 2015), any successor body to a central government body; and
  7. to the extent that a Member (acting reasonably) deems disclosure necessary or appropriate in the course of carrying out its public functions.

(d) The obligations of confidentiality in Clauses 15(a) and 15(b) continue in force notwithstanding expiry or earlier termination of this MOU.

17. Anti-Bribery

(a) Each Member will:

  1. comply with all applicable laws, statutes, regulations, and codes relating to anti- bribery and anti-corruption including but not limited to the Bribery Act 2010;
  2. not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK; and
  3. comply with any and all requirements set out in any Contracts in respect of anti-corruption policies.

18. Termination

(a) The Members may mutually agree in writing to terminate this MOU at any time.

(b) Any Member in the Consortium may withdraw from this MOU by giving 3 months’ written notice to the Chair of the Steering Group and the Secretariat provided that such withdrawal shall not take effect prior to the termination or expiry of all Projects that the Member is a party to unless otherwise expressly agreed in writing by the other Members.

(b) In the event of termination under sub-clause (a) above, the Members will be reimbursed for work completed up to the date of termination where such work was completed in line with Project objectives and approved by the Host Member prior to the termination date in accordance with Clause 6 above (Financial Arrangements) and within 30 days of receipt of the invoice. In the event that there is a dispute between the Host Member and any Member in relation to this sub-clause 17(c), the matter will be dealt with in accordance with the Dispute Settlement procedure as outlined in clause 19.

(d) In the event of withdrawal of a Member under sub-clause (b) above, the withdrawing Members shall co-operate with the other Members (including any new Member joining the Consortium) to the extent reasonably necessary to enable the other Members to continue with the activities pursuant to this MOU. The withdrawing Member will be reimbursed for work completed up to the date of withdrawal where such work was completed in line with Project objectives and approved by the Host Member prior to the withdrawal date in accordance with Clause 6 above (Financial Arrangements). The withdrawing Member shall reimburse the Host Member in respect of all sums it is holding but has not yet spent under this MOU within 30 days of the date of its withdrawal from the MOU.

19. Liability and indemnity

(a) In this clause 18, “Liabilities” means all losses, liabilities, expenses, costs and claims, including those incurred in the event of termination of any Contract, incurred by the Host Member in carrying out its role as Host Member.

Unless otherwise agreed in relation to a specific Project and documented in the form of a Project Schedule contained in Annex 2 of Schedule 2, each Member agrees that, save in the case of the Host Member’s fraud, wilful default, or negligence, irrespective of the subject matter (whether in breach of contract, under any indemnity in any agreement, contracts (including any Contract), or arrangements, tort, breach of statute or otherwise), in consideration of the Hosting Obligations of the Host Member:

  1. all Liabilities incurred by the Host Member in relation to a specific Project shall be borne by all participating Members in that Project in equal shares and each participating Member shall indemnify and keep indemnified the Host Member from and against all unavoidable Liabilities in relation to the specific Project;
  2. all Liabilities relating to any other matter under this MOU shall be borne by all Members in equal shares and each Member shall indemnify and keep indemnified the Host Member from and against all unavoidable Liabilities.

(b) Each Member shall, upon request to do so by the Host Member in writing, meet its share of any and all unavoidable Liabilities or reimburse the Host Member if it has already met such unavoidable Liabilities on demand (provided that the Host Member mitigates as far as reasonably practicable any loss(es) in relation to such Liabilities).

(c) Each Member shall indemnify each other Member against all actions, proceedings, costs, claims, demands, liabilities, losses and expenses whether arising in tort (including negligence) or as a result of default or breach of this MOU to the extent that any loss or claim is due to the breach of contract, negligence, wilful default or fraud of the indemnifying Member (or its employees, agents or sub-contractors), except to the extent that the loss or claim is directly caused by or directly arises from the negligence, breach of this MOU or applicable law by the indemnified Member (or its employees, agents or sub-contractors).

(d) Nothing in this MOU limits any liability which cannot legally be limited, including but not limited to liability for:

  1. death or personal injury caused by negligence; or
  2. fraud or fraudulent misrepresentation.

(e) Upon becoming aware of any claim, action or demand against it or any Member in respect of a Project, or any other matter in connection with this MOU likely to give rise to any claim, whether by way of pre-action protocol letter or otherwise (a Third Party Claim), the relevant Member shall, as soon as practicable, notify the other Members of the Third Party Claim in writing, giving the details of such Third Party Claim of which it is aware including, if applicable, the quantum of any such Third Party Claim.

(f) The Members shall agree the conduct of any Third Party Claim on a case by case basis.

(g) Except if the Members have agreed a particular Member shall have sole conduct of any Third Party Claim, no Member shall make any admission of liability, agreement, settlement or compromise with any Third Party in relation to the relevant Third Party Claim without the prior written consent of the other Participating Members.

20. Dispute settlement

(a) Any dispute that may arise as to the interpretation or application of this MoU will be settled by consultation between the Members via the Steering Group. If the dispute cannot be resolved by the Members within 30 days of the date of the dispute arising then a Member may escalate it for determination to the Director of Stakeholder Engagement of the relevant Members or equivalent title holder.

(b) If the dispute cannot be resolved by the Directors of Stakeholder Engagement within 30 days of the dispute being referred to them, then the dispute may be escalated for determination to the Chief Executives of the relevant Members.

(c) If the dispute cannot be resolved by the Chief Executives of the relevant Members within 30 days of the date of the dispute being referred to them, then the dispute may be escalated for determination to the Secretary of State as set out in section 9 of the National Health Service Act 2006 (as amended by the Health and Social Care Act 2012).

21. Contact information

Each Member will provide each other Member with contact details for their representative with responsibility for addressing normal day to day enquiries related to the programme.

22. Notices

(a) Business Day is defined as meaning a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

(b) Business Hours is defined as 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place (or location) of receipt.

(c) Any notice given by a Member to the other Members under or in connection with this MOU shall be in writing and shall be:

  1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its address as set out in Schedule 7; or
  2. sent by email to the addresses set out at Schedule 7.

(d) Any notice shall be deemed to have been received:

  1. if delivered by hand, at the time the notice is left at the proper address as in Schedule 7; or
  2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
  3. if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

(e) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

23. Responsibility for Staff

(a) Each Member will provide adequate supervision of and care for their staff, authorised agents and representatives, in line with their obligations as employer or as a result of any other relationship.

(b) The Members will each put in place a formal safeguarding policy (at an organisational level) which is communicated to and accepted by all staff who contribute to the work of the NHS Consortium (including but not limited to CTAS advisors).

24. Responsibility for Staff Overseas

(a) On overseas missions the Host Member will provide logistical support for all staff, authorised agents and representatives employed by Members in the Consortium, in line with the Host Member’s applicable policies and procedures which shall be provided to all Members in writing. Each Member will remain responsible for and liable for the actions or inactions of its own employees whilst on overseas missions on behalf of the Consortium.

(b) The Members shall ensure that all individuals involved in the project on their behalf will confirm on request from the Host Member by return of email that they have read and agree to comply with the Host Member anti-fraud, bribery, corruption and formal safeguarding policies ahead of travelling.

25. General

(a) Each of the Members is a health service body for the purposes of section 9 of the NHS Act 2006. Accordingly, whilst the Members intend to honour their obligations under this MOU, it shall be treated as an NHS Contract (as defined in section 9 of the NHS Act 2006) and shall not be legally enforceable.

(b) Subject to Clause 23(a) all matters arising out of or in connection with this MOU or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England.

(c) Nothing in this MOU is intended to, or shall be deemed to, establish any partnership or joint venture between the Members, constitute either Member as the agent of the other Members, nor authorise either of the Members to make or enter into any commitments for or on behalf of any other Member.

(d) Nothing in this MOU is intended to, or shall be deemed to, require any Member to breach any applicable law, regulation or guidance from a regulatory body.

Signatures

Signed on behalf of the Care Quality Commission

Ian Trenholm
Chief Executive
CQC
Date: 19 April 2024

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