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Efford's NHS Bill needs big changes if it's to restore our NHS

Labour's Lord Hunt defends Clive Efford’s NHS Bill and argues against wider reform such as the proposed NHS Reinstatement Bill. Here lawyer Peter Roderick responds to Lord Hunt’s legal points, and Professor Allyson Pollock further explains why we still need an NHS Reinstatement Bill.

Allyson Pollock
25 November 2014

Lord Hunt’s selective quotations from the 1946 Act which founded the NHS, and from the Efford Bill currently before Parliament, do not hit their target. The actual text of Clause 1 of the Efford Bill that Lord Hunt quotes simply copies and pastes from the 2012 Act. It’s not restoring any duty.

The Bill puts the Secretary of State back in charge but does not re-establish a duty to provide the listed health services. I see that the House of Commons library has just amended its briefing in this regard.  

Why does Lord Hunt not mention the all-important Clause 3 of the Bill and section 3 of the NHS Act 2006? Presumably, because he would then have to admit that the Bill’s Clause 3 would transform the 2006 duty to provide listed health services throughout England into a new duty to commission them, and with no geographical stipulation.

There is also a slight concern is around the Bill’s approach to the notorious Section 75 regulations which do much to force competition onto local health bodies. The Bill repeals sections 72-80 of the 2012 Health and Social Care Act - some of the key legislation around the regulation of competition to provide NHS services. This is to be welcomed as a step in the right direction of reducing tendering procedures. But for the record, the Bill doesn’t actually “repeal… the Section 75 Regulations” – i.e., The National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013. It repeals rather the power to make more such regulations in the future. Presumably it is intended that they should be revoked, but this must be clarified.

More worrying, there are concerns about what the Efford Bill would do regarding the EU/US trade deal, which many including the BMA have identified as threatening the NHS.

Lord Hunt says that “TTIP will not be ratified if it: ‘…shall cause any legally enforceable procurement or competition obligations to be imposed on any NHS body …. in any part of the health service.’”

But the Bill doesn’t actually say that.

Instead it says “No ratification…shall” have that effect. In other words, the Efford Bill presumes ratification by the UK government, and then seeks to limit its effect.

Ratification of a treaty follows signature. It is a step required for a treaty to become binding in international law. Once ratification has occurred, the obligations referred to would become binding in international law. So the TTIP Clause seems to set up a potential conflict between the UK’s international obligations and domestic law.

The TTIP clause is also only a partial exclusion. So it also needs to be clarified why all NHS-relevant obligations under TTIP are not excluded – whether they affect the UK government, NHS bodies (which are undefined here) and non-NHS bodies, commissioners and providers alike. And why does it not extend to other obligations, such as (for example) the ousting of the jurisdiction of the UK courts, or to the rights of private companies to bid for contracts?

There are two other, potentially more effective choices for Parliament here. It can either legislate to restrict the Crown prerogative by stipulating that the NHS cannot be included in TTIP. Or it can require the approval of Parliament (and the devolved legislatures) before ratification – as proposed by Clause 22 of the NHS Reinstatement Bill.

Professor Pollock adds: Lord Hunt makes several implied references to the NHS Reinstatement Bill without actually mentioning it. Our NHS Reinstatement Bill would abolish the purchaser-provider split. Lord Hunt argues against it because he says it would mean “another total top-down reorganisation of the NHS” and “staff that we meet the length and breadth of the country plead with us to avoid another reorganisation.  The NHS would simply collapse under the strain having been so weakened and demoralised by this Government”. 

The NHS Reinstatement Bill would not be a total top-down reorganisation. If it makes it to the Queen’s Speech in May 2015, that’ll be because voters - including staff and patients - will have put pressure on Labour and other parties to do so. That’s not top-down. That’s democracy. There are plenty of NHS staff supporting the Reinstatement Bill and who oppose the continuing inefficient and expensive market structures and mechanisms that are undermining the NHS and equal access to healthcare.

A reorganisation is necessary so that we all know who has the duty to provide and to ensure access to services.

The 2012 Act has resulted in chaos and fragmentation and the emergence of a large market bureaucracy which has seen money diverted from patient care to accountants, lawyers, management consultants and shareholders.

We need to return the health system to a state where it is coherent, organised, effective and efficient. This will inevitably require some structural changes, but it will establish a system that is more functional and will remove those elements of the current structure that are unnecessary and wasteful.

Efford rightly describes the 2012 Act as “hated”. It is dissolving the NHS as staff leave in droves. The NHS needs restoring and strengthening. Demoralised staff need to be trusted and paid properly. And we all need to know the NHS will be there for us when we need it. The Reinstatement Bill seeks to do just that.

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