Section 75 - what happened next

Since last weeks big report from Cutcher & Reynolds, the section 75 legislation introducing compulsory tendering to NHS services has hit the headlines but the battle is far from over. Here's a quick roundup of what's happened.

Last week OpenDemocracy reported that the government had laid regulations on the 13th February to open up virtually all areas of England’s National Health Service to competitive markets. The regulations are on course to becoming law on the 1st April, unless annulled or withdrawn.

The ‘Procurement, Patient Choice and Competition’ regulations have proved controversial because they contradict the government’s previous promises and assurances that commissioners would be free to decide when and how to use competition to secure services for patients. The regulations force competitive markets across the board, barring only very exceptional circumstances. They also grant regulator Monitor sweeping statutory powers to enforce competition and challenge contracts that don’t comply with the strict new competition regime. In short, they extend and embed the market in the heart of England’s NHS.

Yesterday Health Secretary of State Jeremy Hunt stood by the regulations when questioned in the Commons, as did Health Minister Earl Howe when talking to the Health Service Journal, both insisting the regulations are consistent with previous assurances. However pressure against them is mounting and gaining critical mass.

Last night the Guardian reported that Jeremy Hunt will be forced by his Liberal Democrat coalition partners to rewrite the regulations. Nicholas Watts reports that a source close to Hunt has said that the Health Secretary will sit down with Lib Dem peers opposed to the regulations and look at the wording and its interpretation to ensure that everyone is happy.

What exactly this means in practice remains to be seen. The regulations have not yet been withdrawn and much will depend on what can be agreed between the Coalition partners and how strong Liberal Democrat opposition is. The Liberal Democrat peers have made it clear that they cannot support the regulations in their current form as they contradict assurances previously given in the House of Lords.

The Telegraph, and New Statesman have also now taken up the story of the controversy the regulations are causing within the Coalition.

Labour’s front bench have led opposition to the regulations, with Labour leader Ed Miliband sponsoring a prayer calling for the regulations to be annulled (Early Day Motion 1104).

The Liberal Democrat MP Andrew George has already signed the Early Day Motion and publicly called for the regulations to be withdrawn.

Green MP Caroline Lucas originally tabled a prayer against the regulations, but has since signed the one led by Labour for purposes of political impact. Lucas commented, “If enough Members seize this eleventh-hour opportunity to take a stand against the Government’s disgraceful regulations, we still have a chance of keeping our vital NHS services in public hands."

The campaigning group 38Degrees launched a petition against the regulations, imploring all politicians to “do all you can to ensure that they are defeated or withdrawn”. The petition has already surpassed 222,000 signatures. It follows an initial petition from 38 Degree member Charles West, a former doctor and Liberal Democrat candidate, whose petition adds a further 20,000 names against the legislation at the time of writing. That's nearly a quarter of a million signatures.

The Secondary Legislation Scrutiny Committee in the House of Lords will be examining the regulations on the 5th March. Their website states that they have received over 2000 messages about the regulations.

The Health Select Committee have also scheduled a special session to examine the regulations on Tuesday 19th March.

Dr David Wrigley is coordinating an open letter from doctors and healthcare workers for publication in a national newspaper. The letter expresses concern that the new regulations will “irreparably damage our NHS” and calls for parliamentarians to insist on a debate and then vote the regulations down. The letter finishes by saying that the regulations represent “a further nail in the coffin of a publicly provided NHS, free from the motive of corporate profit allowing it to concentrate on patient care first and foremost.”

Jon Skewes, director for policy, employment relations and communications at the Royal College of Midwives, also issued a statement on the regulations:

“I am deeply disappointed with the Government because they seem to have promised one thing and delivered the opposite. We were repeatedly assured by ministers that compulsory competitive tendering would not be imposed on organisations commissioning maternity services. The regulations as they stand will mean that this is exactly what will happen. I call upon peers and MPs to look at these regulations very carefully. Continuity of care is vital in maternity services if we are to have safe and high quality care. I fear that the fragmented service that these regulations could lead to will mean poorer care for women, babies and their families.”

Keep Our NHS Public issued a parliamentary briefing on the regulations, which has been widely shared. Unite and the TUC are also opposing the regulations, branding them “privatisation by the back door”.

Labour Shadow Health Secretary Andy Burnham has just tweeted, "Need to step up fight against s75 regs on ‪#NHS competition after PM refused to withdraw them. Please lobby your MP to sign EDM 1104."

The NHS Alliance have just said released this press statement:

"The proposed changes to section 75 appear to be contrary to previous reassurances from the government that CCGs will have the freedom to choose when and whether to use competition. Commissioners should be able to work with the providers that they believe will offer the best services, at the best value, taking guidance from the local population’s feedback. Forcing providers down costly and unhelpful procurement routes will only serve to disengage them with the health service, and potentially remove valued and trusted services from local areas – regardless of local opinion."

In the Commons today, David Cameron issued a baffling response which can be summarised as "Labour did it first, and these regulations will actually decrease competition". 

With talk of rebellion over the regulations at the Lib Dem Spring Conference, the political machinations in the coming days and weeks are likely to determine whether the regulations are withdrawn, amended or annulled. In the meantime, campaigners are urging politicians and the public to keep the pressure up and for the media to keep a spotlight on the unfolding story.

 

About the author

Oliver Huitson is Co-Editor at OurKingdom and a freelance journalist. He contributed chapters to Jenny Manson's 2012 book, Public Service on the Brink, and NHS SOS (2013). He has written for The Guardian, The New Statesman and the BBC. He is on Twitter as @OllyHuitson

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