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Changes to the NHS Reinstatement bill

The reinstatement bill continues to be improved and sharpened, including an important adjustment to ensure any international trade deal ro treaty would require parliamentary approval if legislating for the NHS.

On 16 May the National Health Service (Amended Duties and Powers) Bill was given a First Reading in the House of Lords; a revision of the Bill of a similar name introduced in January 2013. The Bill has been drafted as emergency legislation to take effect within a few months of a new government taking office as a result of the 2015 General Election.

The Bill has 9 operative Clauses as distinct from the 309 Clauses of the 2012 legislation.

Clause 7 had new wording and would amend competition requirements so that the Board and CCGs face no impediments and are free to choose in a way which best serves patients' interests and would have a full range of options and be under no legal obligation to foster markets.

Clause 8 is new and would require NHS bodies to establish and maintain public registers of contracts which they have entered into in relation to the provision of health services. As private companies increasingly receive public money to provide health services, awarding such contracts must be demonstrated to be the best option. Greater disclosure of contracts, and of pre-contractual documentation which makes the business case, would do that; and would enable the public to know what services to expect at what cost to the public purse. This Clause would, for example, ensure that the costs and payments made under contracts such as the agreements with Circle to run the Hinchingbrooke Hospital and with a subsidiary of Netcare to provide elective procedures to NHS patients in Tayside, would be disclosed proactively.

Clause 9 is new and follows the spirit of the example of section 6 of the European Assembly Elections Act 1978 which provided for any increase in the powers of the Assembly, now called the European Parliament, to be ratified by the United Kingdom only if there had been prior approval by an Act of Parliament. The Clause would make it impossible in the pending US/EU trade negotiations or any trade, investment or similar international agreement in effect to legislate for the NHS without the UK Parliament (or the relevant devolved legislature) giving its approval prior to Treaty signature or EU agreement.

Clause 1, in conjunction with Clause 4, would reinstate the Secretary of State’s legal duty to provide the NHS in England. It would do so by effectively repealing the abolition of that duty as a result of section 1 of the Health and Social Care Act 2012.

Clause 4 would reinstate the duty of the Secretary of State to provide hospital accommodation, services and facilities as specified in section 3(1) of the 2006 Act, but acknowledges that the government itself will not usually be providing services directly but that. a CCG’s duty was for the purpose of implementing the Secretary of State’s prior duty.

Clause 5 would also give the Secretary of State a general power of giving directions to those quasi-autonomous non-governmental organisations (QUANGOs) and other bodies with health service functions and contracts who may be given emergency directions under section 253 of the 2006 Act (as amended by section 47 of the 2012 Act). This general power would be additional to other powers. But Clause 5(3) would seek to address concerns that the power of directions might be used in particular circumstances to impose an undesirable form of centralised control.

Currently, there is no objective underpinning of Monitor’s powers and duties – unlike Ofgem, for example. Clause 6 would make clear the end to which its functions must be directed and reinstate the duty of Monitor to act consistently with the Secretary of State’s duties to promote and provide.

This draft legislation has been developed by a group of NHS supporters who are determined to reject the present wholesale marketization and privatisation of the English NHS. It will be subject to further public consultation in 2013 and 2014 so as to be ready to put before all MPs and Parliamentary candidates and to seek their support prior to the 2015 General Election and introduced in the few months after that election.

The voters will hold the NHS in England in their hands in 2015. Continue with the 2012 legislation, for which this coalition government had no mandate from the electorate, beyond 2015 and it will become over the years unrecognisable. Reinstate in a selective way key powers as in this Bill in early 2015 and our NHS that has delivered, cost effectively, a rationed yet very popular and trusted health service will survive for many more decades.

You can read the updated version of both the bill and the explanatory notes here.

About the author

David Owen: Under Labour Governments, David Owen served as Navy Minister, Health Minister and Foreign Secretary. He was co-founder of the Social Democratic Party and its Leader from 1983-87 and 1988-90. He was created a Life Baron – Lord Owen of the City of Plymouth – in 1992 and sits as an independent Crossbencher in the House of Lords. He was a Member of Parliament for Plymouth for 26 years from 1966-92.


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