Efford's NHS Bill "paves way for NHS Preferred Provider policy"

Lord Phil Hunt responds to criticism of Labour's new NHS Private Members Bill, arguing in some respects it goes further than the original 1946 NHS Act.

Philip Hunt
25 November 2014

Last Friday, MPs voted overwhelmingly to give Clive Efford’s National Health Service (Amended Duties and Powers) Bill its Second Reading.

Disgracefully, only a small handful of Coalition MPs bothered to turn up to either make their case or to support the Efford Bill; it was carried with the full support of the Labour Frontbench and the Parliamentary Labour Party.

It was never going to be the case that a Private Member’s Bill would achieve everything that we will want to do in a Labour Government Bill, but it is a clear statement of intent and repeals the worst aspects of Cameron’s 2012 Act.

But even in doing so there appear to be some who would rather keep the 2012 Act than see Clive’s Bill being successfully passed into law.  For them, only another total top-down reorganisation of the NHS will do, going back to the structures of 25 years ago.

Health service 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, despite the heroic efforts of staff to keep it operational.

We have promised to avoid another major reorganisation and will work with the structures we inherit to restore the national basis of the NHS and integrate services with social care.

Clive’s Bill begins that task.

It restores parliamentary accountability for the NHS by re-establishing the duty of Ministers and the Secretary of State to make arrangements to provide services.  Some argue that the Secretary of State’s ‘duty to provide’ is missing, or not quite expressed as it was in previous NHS Acts.  Let me remind them of what the 1946 Act that established the NHS said:

It shall be the duty of the Minister of Health to promote the establishment in England and Wales of a comprehensive health service…’

It goes on to say:

‘…and for that purpose to provide or secure the effective provision of services…’

Compare that to the opening words of the Efford Bill:

‘Secretary of State’s duty to promote comprehensive health service based on social solidarity.

The Secretary of State must continue the promotion in England of a comprehensive health service…’

And the clause goes on to say:

‘…the Secretary of State must: … secure that services are provided in accordance with this Act.’

In fact, the Efford Bill is stronger than the 1946 Act with the inclusion of ‘social solidarity’.  It does what we said and returns accountability to the Health Secretary.

On competition, the Bill removes the competition role of Monitor and deletes the clauses that relate to the Office of Fair Trading, the Competition Act 1998 and the Enterprise Act 2002.

It also repeals the Section 75 Regulations of the 2012 Act which have led to the widespread tendering of NHS services.  Far from doctors deciding, as Lansley wanted us to believe, the decisions on our health services are in the hands of competition lawyers.

By repealing these parts of the Act, the Efford Bill paves the way for Labour’s policy of NHS Preferred Provider.  The inclusion of clauses concerning the right of the Secretary of State to make directions and for arrangements to be based on NHS Contracts adds further protection for health services from EU procurement law.

Admittedly, some people do want to go further.  They don't want to have any non-NHS provision in the health service.  The NHS Preferred Provider model will give the NHS the first chance to deliver and improve services and to innovate – but where it can't or won't then those services will need to be open to third and private sector providers.

Let me be clear, Labour will never accept a lack of, or below standard provision of services for the public, but non-NHS involvement will always be in support of the NHS, not in a replacement role.

There’s another area where the Efford Bill paves the way for a Labour Secretary of State. 

The 2012 Act allows trusts to earn up to 49% of their income from treating private patients (Private Patient Income Cap).  This means they can devote up to half of their beds, operating theatre time and other services to private work.  This can result in NHS patients waiting longer for treatment and with waiting times already at the highest for six years is simply unacceptable.

The Bill allows a lower limit to be set by the Secretary of State with a requirement for specific Ministerial approval of any PPI Cap for an individual Trust above that limit.  This will be a far lower level, much nearer to the 3% average back in 2010.

Finally, despite many opportunities to do so, Coalition Ministers have failed specifically to exempt the NHS from the Transatlantic Trade and Investment Partnership (TTIP) treaty negotiations between the EU and the US.

The Efford Bill exempts the NHS in the most effective way – by stating 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.’

It could not be clearer.

Through the efforts of Clive Efford and his Private Member’s Bill, we have laid out action to remove the most noxious parts of the Health and Social Care Act 2012, and made a clear step towards a Labour Government Health Act to get the NHS back on track.



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