Efford's "Save the NHS" Bill - does it do what it says on the tin?

This Friday MPs vote on a Bill its advocates say will "reverse the most noxious elements of Cameron's Health Act". Does it merit our support?

caroline m.jpg
Caroline Molloy
19 November 2014

Labour MPs pledge their support to Clive Efford's NHS Bill, being voted on this Friday.

A private members bill that Labour say will “halt the rush to privatisation and put patients rather than profits at the heart of our NHS” is to be debated in parliament for the first time on Friday.

Trade unions are urging MPs to “back the bill”, put forward by Eltham MP Clive Efford, whilst suggesting it is only “a start”. The Trade Union Congress says the Bill will “put patients’ needs before private profits and protect health services from privatisation”. It's supported by Labour affiliate, the Socialist Health Association, and by 38 Degrees.

The Bill has also been given “qualified support” by the British Medical Association and a cautious welcome by Lord David Owen, a vocal critic of the Health & Social Care Act, who told OurNHS:

"These are imaginative and constructive proposals that deserve not just a Second Reading but careful consideration in Committee. No small Private Members Bill can cover every important aspect of the NHS but this Bill gives us an opportunity to act quickly”

But what does the Bill actually do?

It appears to give the Health Secretary considerable power to determine what counts as ‘anti-competitive behaviour’ and what counts as an abuse of a dominant ‘market position’ within healthcare.

It also gives the Health Secretary the power to decide just how much money Foundation Trusts should be allowed to make from private patients (currently capped at 49% of income) and adds some safeguards about patient detriment.  

And it contains an apparent attempt to stop the EU/US trade treaty from forcing more competition on the NHS.

The current ‘competition’ framework is forcing the NHS into costly battles to see off private sector bids to takeover services. It’s even stopping mergers between cash-strapped Foundation Trusts.

Efford’s bill would scrap Monitor’s role in enforcing competition - including the notorious Section 75 Regulations. So many - including the TUC and the BMA - have broadly welcomed it. The BMA say it would be a step forward to “remov[ing] competition [’s]… prioritisation as a policy goal”, though they express their traditional doubts at giving politicians more say over the NHS.

The unions have been using it as a campaigning tool, encouraging local groups to petition and attend a vigil in support of the Bill.

The Bill has no chance of becoming law unless Tories or at least Lib Dems decide it’s a good way to seem to atone for their supposed ‘mistakes’ over the Health & Social Care Act, oddly leaked to the press last month.

However, whether the bill makes it to committee stage or is merely considered as the basis for future legislation, it’s worth considering whether the Efford approach - which appears to rest on the ideological bent of the health secretary - is the best way forward.

Is the Efford approach right? That depends on three things…

Firstly, common sense would suggest, the answer depends on who the health secretary is. So this is certainly clever politics for the Labour party.

The BMA puts it thus: “the safeguards rest purely upon a sympathetic Secretary of State. Although we agree with the Bill’s policy intention to limit competition, further amendments are required to fully realise that intention.”

Secondly, the answer will also depend on what duties the Secretary of State is constrained by.

On this front, the Efford Bill falls down. What it doesn’t appear do - despite the hype and the headlines within the Bill itself - is reinstate the Secretary of State’s historic duty to secure or provide a comprehensive and universal healthcare system across England. The final abolition of this duty by the 2012 Act was identified by campaigners as one of the worst aspects of the 2012 Act, and it’s restoration is the centrepiece of an alternative attempt to save the NHS, the NHS Reinstatement Bill developed by Professor Allyson Pollock & Peter Roderick (not currently before parliament).

As Pollock says: “Instead [the Efford Bill] would leave untouched the power of clinical commissioning groups (CCGs) to arrange services they consider appropriate”.

Analysis by lawyers working with Pollock suggests that under the Efford Bill, the Secretary of State retains a duty merely to “promote” a comprehensive health service, rather than to provide it - and to back up CCG arrangements (which many see as the final stepping stone to an insurance model) by “arrang[ing] the provision” of health services “to such extent as he considers necessary to meet all reasonable requirements”- in other words, as he sees fit.

Thirdly, the answer will depend on whether the Efford Bill measures as a package hold together and stand up against domestic and international competition law. Competition law is currently perceived as major threat to our ability to run our health service in the interests of patients not profits.

On this front, many including the BMA have welcomed the fact that the Efford Bill uses phrases like “social solidarity” (which has some meaning at EU level) and appears to limit the applicability of the 1998 Competition Act to the NHS.

Gaps and contradictions - reining in, or extending the market?

But Pollock amongst others highlights that there appear to be curious contradictions in the Efford Bill.

Pollock raises concerns that the Efford Bill “appears to defer unnecessarily to EU competition law”.

She asks for clarification as to why the Efford Bill defines the NHS as a “service of general economic interest” (SGEI).

This is a point also picked up by Jenny Shepherd, Green parliamentary candidate for Calder Valley (and OurNHS contributor), who suggests:

“SGEIs are subject to EU Competition Law, which means corporations have rights to their budgets, by bidding for contracts to run their services. The Efford Bill had the option of categorising the NHS as a  “non-economic” non-marketised public service with no commercial involvement. This would put the NHS outside the scope of EU competition law and remove the right of corporations to bid for NHS contracts. But the Efford Bill chose not to do this.”

Dealing with Foundation Trusts - whose autonomy also increases the NHS’s exposure to competition laws - is anther curious gap. Despite ritualistic objections from private/public network the NHS Confederation, the Efford Bill doesn’t appear to rein in that autonomy sufficiently to reduce competition law risks - nor to scrap the 2012 requirement for all NHS Trusts to become Foundation Trusts.  

Such a move would have been a simple measure which would reduce both the marketisation and reorganisation facing the embattled NHS. It’s widely accepted that most non-Foundation Trusts are finding the transformation impossible - and facing privatisation, or merger, as a result. The Efford Bill certainly makes mergers easier as a way out of this problem - the parliamentary briefing plays up that angle considerably - but is this what campaigners want?

Utlimately, according to Pollock, the Efford Bill would “extend the market structures that have been increasingly applied to the NHS over the last 25 years”.

What about TTIP?

Efford also makes bold claims on the Transatlantic Trade & Investment Partnership (TTIP) issue, saying “My Bill will give Parliament sovereignty over the NHS and will protect it from the EU-US treaty.” But according to Pollock, this claim needs “further clarification”. And writing yesterday in OurNHS, War on Want director and respected TTIP expert John Hilary observed that “such national legislation would not be enough to save the NHS from TTIP”.

A step in which direction?

Overall, though, Pollock joins the BMA and the Unions in giving Efford the benefit of the doubt, suggesting it is a “step in the right direction”, though one that “needs to be radically amended at second reading to ensure reinstatement of the NHS”. 

A charitable reading is that any weaknesses in the Bill are partly a feature of it being a short private members bill, and partly necessary to get the Lib Dems on side in the face of a government majority.

But others are more critical, seeing the Efford Bill as ultimately weakening the NHS’s ability to avoid privatisation.

As well as the fears raised by Pollock, the National Health Action Party and others that the Bill could in places actually further entangle the NHS in unhelpful domestic and international competition law, entirely unneccessarily,  there are other concerns.

The Bill leaves in place the commissioning framework but gives the Secretary of State considerable discretion over how it is used. Some fear this could be used to protect the NHS, if the Secretary of State was so minded - but could also be used to protect favoured private companies, or perhaps unaccountable third sector organisations.

For example the BMA suggests “the removal of 62(10) may have worrying implications as this could have an impact on the current protection on the proportion of services provided by the private and public sectors. At the moment, Monitor must not intentionally carry out its functions in order to change this, a move the BMA welcomed. The Bill removes this protection.”

Another related focus for criticism is some complex additions to legislation on contracts and competition (Section 6) that has left some NHS legal experts privately mystified about what this section is really designed to achieve.

The most radical criticisms suggest that what Efford does here and elsewhere in the Bill is deliberately permit a selective removal of competition. That selectivity may then be used to establish or protect private monopolies where companies are already rapidly establishing a strong footing in the collapsing shell of the NHS.

According to Lucy Reynolds, an academic in health policy at the London School of Hygiene and Tropical Medicine and another vocal critic of the Health & Social Care Act, section 6 of the Efford Bill sets up the possibility of “using the new “NHS contract” arrangements to opt to exempt certain contractors” from competition. “The most likely candidate”, she suggests, is the actual purchasing (commissioning) of healthcare - increasingly delivered by Commissioning Support Units which are themselves soon to be privatised.

Lucy Reynolds suggests “the commissioning support function controls the spending of the NHS budget and has access to confidential medical records [and is] therefore highly attractive to the health insurers after whose internal administration it was modelled…Insurance giants must surely be interested as the commissioning tasks of CCGs follow the insurance-based model of HMOs (health maintenance organizations; also known as “integrated care” or “accountable care organisations”), so this is an obvious match for them.”

She predicts: “The Efford Bill would deploy competition law against the state monopoly provision of NHS services and yet enable a private monopoly takeover of commissioning support to escape competition law challenge.”

Jenny Shepherd pursues this theme, calling it “amazing Alice in Wonderland legal skullduggery about when an NHS contract is not an NHS contract [which] would effectively exempt a range of contracts – particularly the 2016 privatisation of Commissioning Support Units (CSUs) – from EU competition law. This would allow a privatised monopoly CSU to be set up across the whole of the English NHS.”

Shepherd ultimately accuses Efford of “running with Save Our NHS campaigners and hunting with the NHS privatisation hounds.”

Greg Dropkin of Merseyside Keep Our NHS Public is similarly critical, suggesting “The text of the Bill flatly contradicts the claims made for it. The Efford Bill does not seek to stop privatisation… it sets out a framework in which privatisation can flourish.”

Such doubts are to some extent reflective of wider doubts about Labour amongst campaigners, particularly where they are urged to support a highly techical bill largely on trust -  the campaign to #backthebill has been running for months but the full text was released only last week, without explanatory notes, for a debate on Friday. Efford has been tight-lipped with campaigners, who understand the Bill has been written by the Labour leadership.

One highly experienced campaigner commented “Labour don't realise what a credibility gap they face with campaigners.”

Such a credibility gap was not helped by Andy Burnham’s recent interview with HSJ, where he said Labour still saw a significant role for the private sector in a future NHS, telling them. "“You don’t immediately go to an open competition, [the NHS] gets the chance to embrace the model. But [if commissioners judge the] change isn’t acceptable or not embraced fully, then [we] say: ‘We’ve given you first chance to change but it’s not worked. We now need to open up to different ways of doing things.'”

Nor was it helped by Labour’s apparent embrace (alongside Jeremy Hunt) of the US-style “Accountable Care Organisation” model (also promoted by the last and the current NHS Chief Executive). Or by Labour's apparant acceptance of "Prime Contractor" and "Personal Health Budget" schemes now rolling out, which could undermine any promised "NHS Preferred Provider" arrangement through layers of sub-contracting.

Ed's elusive vision?

Nor has Labour (with the exception of Debbie Abrahams MP) opposed Frances Maude’s invitation to hospitals to leave the NHS (without any public consultation) and become ‘joint venture mutuals’  - something even Maude admits is ‘technically privatisation’. This process is now underway at 10 pathfinder hospitals including Moorfields, Tameside and Liverpool Heart Hospital. Labour also appears to favour a ‘mutual’ approach to railways, rather than straightforward renationalisation.

Perhaps this is what Ed Miliband means when he talks of citizens, businesses, entrepeneurs and charities working ‘Together’ towards ‘responsible capitalism’?

Is this, in fact, Ed’s elusive vision?

And is Efford showing how Labour hope to pave the way for it in the NHS?

James Beecher of Stroud Against the Cuts notes that “previous Labour plans to hand hospitals out of the NHS to so-called ‘mutuals’ or ‘social enterprises’ without competition (or consultation) were stopped in court in Gloucestershire but I fear the Efford Bill attempts to legalise such handovers to hand-picked cronies.”

Some of these questions will no doubt come up in committee, should the Efford Bill be granted its second reading in the vote this Friday.  

Many hope that the Bill’s progress through parliament would be a chance to keep the NHS on the political agenda in the run up to the election - though many too will be hoping for Labour to work more inclusively with campaigners going forward.

Certainly some campaigners have found the Efford Bill a useful rallying cry. In Cambridgeshire Keep Our NHS Public campaigners collected hundreds of signatures on Saturday. Martin Booth from the group commented “Most didn't want to get into deep discussion about how far the Bill does or doesn't go, they were just keen to support any initiative defending the NHS.”

The unions are urging members to join a candlelit vigil on the eve of the Bill, from 7pm on Thursday. Lewisham hospital campaigners urge people who care about the NHS to join them on the day of the bill itself, to discuss both the bill and how to “make Labour organise to deliver” on the NHS.

Rehana Azam of the GMB Union says “Clive Efford’s draft bill is an important moment in the growing campaign to restore a publicly-run NHS. Backbench Tory and Lib Dem MPs will have to answer to their constituents if they don’t take this chance to undo the damage done by the coalition’s hugely controversial changes.”

Efford’s Bill plainly doesn’t go as far as Pollock’s NHS Reinstatement Bill - which OurNHS has supported from the outset. But as that Bill doesn't have any chance of becoming law until after the election the question becomes, does Efford's bill before parliament contain enough of what campaigners want? Should we take it as a honest attempt by Labour to “repeal the most noxious elements of the Cameron Health Act” (in Burnham’s words), urge MPs to back the second reading and then argue for any necessary improvements at committee stage?

Certainly, the current situation - with hospitals collapsing and health bosses horribly mired in competition law - is untenable.

Like this piece? Please donate to OurNHS here to help keep us producing the NHS stories that matter. Thank you.

Had enough of ‘alternative facts’? openDemocracy is different Join the conversation: get our weekly email


We encourage anyone to comment, please consult the oD commenting guidelines if you have any questions.
Audio available Bookmark Check Language Close Comments Download Facebook Link Email Newsletter Newsletter Play Print Share Twitter Youtube Search Instagram WhatsApp yourData