Promote, Provide – Procrastinate? Beware the Devil in the Detail

Labour’s health manifesto is flawed. With the best of intentions, it misses the point – or rather, doesn’t quite reach it. And it’s all down to understanding what the Secretary of Health MUST provide as well as promote when it comes to health services and the NHS – hence what needs putting right if the NHS is not to continue to wither away.

Page 9 of its Health Manifesto (A Better plan for the NHS, health and care) says they will “restore the Secretary of State’s historic duty to provide a comprehensive health service”, even though the statement does not appear in the actual main Party manifesto.

David Lock, QC – former Labour MP and widely said to be the drafter of the National Health Service (Amended Duties and Powers) Bill presented in 2014 to the House of Commons by Clive Efford MP (the ‘Efford Bill’, filibustered to death in Committee by whipped Tories just before the last Parliament was dissolved) – says in a piece on Clive Efford’s website:

“Since the creation of the NHS in April 1948 the Secretary of State has always had the duty to promote a comprehensive health service but has never had a duty to provide a comprehensive health service”

The thing is, Mr Lock’s statement is actually correct. But it misses the critical point.

In 1946, Parliament formulated a clear framing ministerial duty in section 1 of the founding NHS Act, continued in later Acts, though slightly diluted in 2006. The most recent version – before the Health and Social Care Act 2012 – was in s.1(2) of the NHS Act 2006: to provide or secure the provision of services in accordance with the Act for the purposes of a comprehensive health service that it was also the duty of the Secretary of State to promote. In section 3, the Act gave him or her the specific duty to provide hospital and specialist services throughout England and Wales. This duty was later extended under the Heath government to medical, dental, nursing and ambulance services, and to certain community care services that had previously been placed on local authorities.

Sections 1 and 3 are to be read together: as Lord Woolf said in 2001, the Secretary of State in section 1 “has the duty to continue to promote a comprehensive free health service and he must never, in making a decision under section 3, disregard that duty”.

Why then is Labour saying they will restore a historic duty that never existed?

What needs restoring is the duty to provide or secure the provision of services in accordance with the Act for the purposes of a comprehensive health service that it is also the duty of the Secretary of State to promote; and his or her duty under section 3 to provide hospitals, medical, dental, nursing and ambulance services, and community care services. The NHS Bill would do both. The Efford Bill would do neither.

More information

Our previous news stories on the National Health Service (Amended Duties and Powers) Bill

2nd Committee Debate 10 Feb 2014 - 4 Clive EffordEfford Bill Filibustering Blunders On
10 February 2015

 

Empty Select CommitteeTory MPs filibuster to block Efford Bill
4th February 2015

 

Hunt_wide2_400x400Response of Peter Roderick and Professor Allyson Pollock to Lord Hunt
26th November 2014

 

Big BenHouse of Commons Library briefing amended – no longer any mention of re-establishing or reinstating a legal duty to provide
25th November 2014

 

Peter Roderick speaking in Committee Room 9 at the House of Commons on the Efford BillResponse to Clive Efford MP’s legal advice on Secretary of State’s ‘duty to provide’
24th November 2014

 

Peter Roderick speaking in Committee Room 9 at the House of Commons on the Efford BillA day in the Commons for the Efford Bill – a personal view
22nd November 2014

 

OLYMPUS DIGITAL CAMERAUpdate on Clive Efford NHS Bill
21st November 2014

 

Big BenDuty to provide throughout England? Request for correction of House of Commons Library Briefing
20th November 2014

 

Clive Efford NHS BillEfford Bill 2nd Reading – Friday 21st November
20th November 2014

 

Clive Efford Private Members Bill copyResponse to Clive Efford MP’s Bill
19th November 2014


Efford Bill Filibustering Blunders On

Labour’s Clive Efford showed his impatience today, as Tory MPs continued to filibuster his Private Members’ Bill in parliamentary committee. As the delaying tactics continued, Tories spent over an hour debating whether future meetings would best be delayed by 30 minutes. The principal architect of this systematic procrastination was Tory Jacob Rees-Mogg (standing in the picture below), who managed to allude to Norse mythology, biblical quotes about Job, and the works of Samuel Johnson – never mentioning the NHS once.

 

2nd Committee Debate 10 Feb 2014 - 9 Jacob Rees Mogg

Jacob Rees-Mogg eventually gave way to allow another proposal: yet another amendment to alter the day of the week on which the committee would sit. When discussion of the Efford Bill did finally get under way (less than 30 minutes before the committee was due to finish), Rees-Mogg spent over 20 minutes describing the battles of Agincourt and Waterloo in defending his objections to the phrase “social solidarity”.

2nd Committee Debate 10 Feb 2014 - 4 Clive EffordClive Efford (pictured right), on standing to address one of several late amendments tabled by the Tory MPs present, said: “We’ve had nearly four and a half hours now just merely discussing the amount of time we’re going to allocate to discuss the Bill, which is an absolute disgrace…we have been subjected to the most incredible filibustering on this Bill – and no [referring to Rees-Mogg’s request for him to give way] I am not going to give way, because the Honourable gentleman has spoken far too much – so I think we do have to make time.”

The committee eventually agreed to hold future meetings on Tuesday afternoons, so that they would not be constrained by a set closure time. Yet the filibustering has every sign of continuing.

See for yourself, the full debates can be accessed from here. (It is from the Parliament website that uses Silverlight, which you may have to download.) We have also embedded the same video at the end of this page.

If you want to see Jacob Rees Mogg’s  shocking filibustering, this can be witnessed for most of the time from about 09.35am to 10.25am (Norse mythology, Job, Johnson), and again from roughly 10.55am to 11.25am (Agincourt, Waterloo, Napoleon).

The Tories, quite plainly, have decided that the NHS is not going to be saved by the Efford Bill. We need your help to encourage politicians to support the NHS Reinstatement Bill 2015. Make sure MPs know they cannot get away with treating the future of the NHS as the chance to waste time – at public expense.

 


Tory MPs filibuster to block Efford Bill

In a towering example of how MPs can avoid discussing anything substantial and stop important changes becoming law, Tory MPs sitting on the House of Commons Committee for the Efford Bill (NHS (Amended Duties and Powers Bill)) showed their mastery of filibustering today – by spending over 2 hours debating whether future meetings should start at a later time.

Clive Efford’s Private Members’ Bill to stop the worst changes to the NHS brought about by the Health and Social Care Act 2012 is Labour’s attempt to fix the damage already done to our health service. Yet it is being killed slowly at its committee stage by Tory MPs.

Conservative David Nuttall’s amendment to the Bill, proposing to shift the start time of future meetings from 9.30 am to 10 pm, set the stage for him to spend most of the hearing describing why this would be a good idea, including his view that it would allow MPs more time to get to the meetings during adverse weather. He was repeatedly supported in his procrastinations by Jacob Rees-Mogg (Conservative), who at one stage said that the later start would help ‘Westminster clerks’ brains’ to work better.

The only committee member present who voiced strong opposition to the filibustering was Phil Wilson (Labour), who on a point of order was able to state what most people would surely be thinking:

“… the NHS is the top concern of the public outside this House. This Bill received a second reading with 241 votes to 18. Won’t people struggle to understand why we’re not discussing the substance of the Bill rather than having to listen to Conservative members waffle inanely for nearly two and half hours?”

To which the Conservative Chairman of the Committee, Jim Hood, simply replied: “this was not a matter for the chair”.

If there were ever doubts that the current government has any intention of stopping or slowing down the continued privatisation and dismantling of the NHS, this latest act of parliamentary filibustering should dispel them.

The NHS Reinstatement Bill goes further than the Efford Bill in tackling the current dangers to the NHS. It focuses directly on the risks of the purchaser-provider split, as well as giving back to the Secretary of State the responsibility to provide a universal, comprehensive health service (instead of just promoting one, which is now the case). It is critical that it is included in the next Parliament, and the Campaign for the NHS Reinstatement Bill 2015 is asking as many people as possible to approach their prospective MPs before the election and find out whether they support the Reinstatement Bill.

Filibustering is not new. What is new, and shocking, is the way Conservative MPs are using this tactic to stop any substantial discussion on such an important topic. We can expect more of the same unless MPs know they can’t get away with it. Then to see the NHS crumble as its most profitable services are given to private providers and we are left with a two-tier service. You can probably guess where the poorest and most vulnerable will have to get their healthcare from. This has to be stopped by changing the law. We’ve one chance to save our one health service. Please, support our campaign for an NHS Reinstatement Bill.

 


Response of Peter Roderick and Professor Allyson Pollock to Lord Hunt

Lord Hunt (Labour) wrote an article on the ourNHS website about Clive Efford MP’s NHS (Amended Duties and Powers) Bill.

Peter Roderick and Allyson Pollock, authors of the NHS Reinstatement Bill, respond to his piece below. (This article is also hosted on the ourNHS site.)

 

Peter Roderick writes: 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 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.

 

 


House of Commons Library briefing amended – no longer any mention of re-establishing or reinstating a legal duty to provide.

On November 20th we contacted the House of Commons library to ask if its briefing paper for Clive Efford’s NHS (Amended Duties and Powers) Bill could be corrected.

The library provided a very prompt and constructive response, and the briefing paper has now been changed, so it no longer refers to the Bill reinstating or re-establishing a duty on the Secretary of State to provide health services.

The amended House of Commons briefing paper on the Clive Efford’s NHS (Amended Duties and Powers) Bill is here.

 


Response to Clive Efford MP’s legal advice on Secretary of State’s ‘duty to provide’

The National Health Service (Amended Duties and Powers) Bill received its second reading last Friday in the House of Commons.

One of the issues that has arisen is whether it would re-establish the legal duty of the Secretary of State to provide key health services – a major controversy during the passage of the 2012 Health and Social Care Act. Professor Allyson Pollock, barrister Peter Roderick and David Price have said that it does not, see their statement here.

Peter Roderick clashed with Clive Efford MP, the Bill’s promoter on Friday, 21 November – see his account here.

On Monday 24 November, Mr Efford put David Lock QC’s advice on his website, maintaining that the duty would be restored. This advice is here.

Peter Roderick has written to Mr Efford asking for a further explanation, as it clearly does not. Below is his letter.

 

24 November 2014

Dear Mr Efford,

Thank you for putting the advice of Mr David Lock QC on your website and for directing us to it: ‘Secretary of State’s duty to promote a comprehensive health servicehttp://www.cliveefford.org.uk/promoting#_ftn1

I think it is an excellent overview of the legal position – except on the key point of disagreement between us last Friday. (Or perhaps on another point as well, but I wish to focus here on the one which is not a matter of legal argument.)

He writes in paragraph 20:

“Clause 3 of the National Health Service (Amended Duties and Powers) Bill restores the wording of section 3(1) in the 2006 Act.   Thus if the present Bill is passed, the Secretary of State would re-acquire the legal duty to provide acute services to NHS patients to meet all reasonable requirements.”

Section 3(1) of the 2006 Act before 2012, as he sets out, opens as follows:

“The Secretary of State must provide throughout England, to such extent as he considers necessary to meet all reasonable requirements—[the listed services]”

The relevant part of Clause 3 of your Bill reads as follows:

“The Secretary of State must arrange for the provision of the following to such extent as he considers necessary to meet all reasonable requirements— [the listed services]”

It can be seen that the duty to provide throughout England has been changed to a duty to arrange provision, and the words ‘throughout England’ have been dropped; ‘arrange provision’ means ‘to commission’.

I am perplexed as to why Mr Lock states that Clause 3 restores the wording of section 3(1), and that the Secretary of State would re-acquire the legal duty to provide the relevant services. It clearly doesn’t.

Would you be able to ask him if he can explain?

Many thanks,

Peter Roderick


A day in the Commons for the Efford Bill – a personal view

A day in the Commons for the Efford Bill – a personal view by Peter Roderick, barrister and co-author of the draft NHS Reinstatement Bill.

Clive Efford debating his NHS Bill21st November 2014.  The National Health Service (Amended Duties and Powers) Bill, introduced by Labour MP Clive Efford in a passionate speech, was successfully given its second reading in the House of Commons today by 241 votes to 18. Labour turned out in force, Tories in the chamber were mainly in single figures, plus a couple of Lib Dems and a sprinkling of others – not least the new UKIP MP, Mark Reckless, who voted for the Bill. The Secretary of State, Jeremy Hunt, and the 2012 Act’s architect Andrew Lansley were nowhere to be seen – junior Minister Dan Poulter fielded for the government.

Little light was shed on the questions we had asked beforehand to be clarified.  The debate itself was a lively mixture of slagging the other side off, statistics trading, quite a bit of meandering and pomposity, and the occasional thoughtful and concerned intervention. The main question in my mind at the end of the debate was ‘what and whom do I believe?

Some cameos. Only John Pugh, Lib Dem MP for Southport, spoke in favour of abolishing the purchaser-provider split, though seemingly on a local rather than national basis. John Healey, Labour MP for Wentworth and Dearne, announced a meeting on Monday with the EU chief TTIP negotiator and Unison’s Dave Prentis. Sleep-deprived Mark Reckless got ribbed mercilessly – from both sides over his UKIP colleague’s view of the 2012 Health and Social Care Act as not having gone far enough, and by Dennis Skinner over the effect of UKIP’s policies on his “United Nations heart by-pass”, apparently performed by a Syrian cardiologist, a Malaysian surgeon and a Nigerian registrar.

 

Committee Room 9 meeting organised by Save Lewisham Hospital

Peter Roderick speaking in Committee Room 9 at the House of Commons on the Efford BillMore enlightening was the meeting afterwards in Committee Room 9 of about 50 people, organised by the Save Lewisham Hospital Campaign. Mr Efford came along and spoke, but he was in a defensive mood.

He was questioned closely on several issues, and I will mention three here.

The first one involved him and me in a heated exchange over the repeated claim that the Bill will re-establish the Secretary of State’s legal duty to provide the NHS. Mr Efford began by describing the view that the Bill did no such thing as “stupid” and “annoying”. I tried to demonstrate to him why the Bill did no such thing. My reasoning is set out here, and in my letter to the House of Commons library.

In a nutshell, the duty to provide or secure provision in section 1 of the NHS Act until 2012 is not reinstated by the Bill; and the duty to provide listed services throughout England in section 3 of the Act until 2012 would become a duty to arrange provision – i.e., to commission – with no mention of ‘throughout England’. This isn’t rocket science – anybody can read the original section 1 of the 2006 Act and section 3 and see that the duty to provide mentioned in both sections would be amended by the Bill, not reinstated.

But some clarity emerged. Mr Efford’s argument really is that looking at all the provisions of the Bill as a whole, the Secretary of State is being put back in charge of the NHS. What kind of NHS is another question, but that at least is a proper argument, regardless of whether one agrees with it. It’s not a proper argument to say that the Bill re-establishes the Secretary of State’s legal duty to provide the NHS, when it doesn’t.

Transforming the duty to provide into a duty to commission leads nicely to the second point: the reference to the NHS being a ‘service of general economic interest’ (SGEI), which voluntarily defers to EU competition law. Far from being a misprint for ‘service of general non-economic interest’, Mr Efford said that this was because the private sector provided health services and so the reference was correct. What he did not say was that Member States have considerable discretion in determining what are SGEI, and why the Bill makes this reference when it is not legally required.

Finally, Mr Efford – and several speakers during the debate – made it clear that Parliament should decide whether the NHS is exempt from TTIP. Hear hear. But why does Clause 14 of the Bill not say that?

As the meeting closed, John McDonnell MP said that Labour was still in denial over its role in marketising the NHS – a constant attack from the Tories and Lib Dem Julian Huppert during the debate to which there was no persuasive response. This makes sense to me.

 

What next?

At the meeting the understanding was that the government might refuse to allow the Bill to go to the committee stage, and that we should do what we can to prevent them refusing. Since then, I have heard that blocking the Bill in this way would be at least highly unusual. It would certainly be a poke in the eye for democracy. The Efford Bill takes a step in the right direction by reducing tendering procedures and the committee stage will provide a forum for detailed consideration and clarification of several issues and an opportunity for tabling amendments along the lines of the NHS Reinstatement Bill – all steps on the road to the Queen’s Speech in May 2015.


Update on Clive Efford NHS Bill


Duty to provide throughout England? Request for correction of House of Commons Library Briefing

Peter Roderick has written to the House of Commons Library to request for a correction in its briefing paper for the Clive Efford NHS Bill. The briefing paper is incorrect to interpret a duty on the Secretary of State to commission NHS services without national scope as amounting to resinstatement of the Secretary of State’s duty to provide the NHS throughout England.

Read in full: Peter Roderick’s letter requesting for correction of House of Commons library briefing (pdf)

Read in full: The Library’s briefing paper is available here.

 


Efford Bill 2nd Reading – Friday 21st November

On Friday 21st November 2014, the House of Commons will debate a Private Member’s Bill introduced by Labour MP Clive Efford on the NHS.  This debate is called the Second Reading. If enough MPs vote for the Bill on Friday, then the Bill can move to Committee stage.  It is at this stage that the Bill can be debated more thoroughly, and amendments proposed.  After which there is Report stage and Third Reading before it goes to the Lords.  It is very unlikely to go through all these stages before the General Election in May.

You can read our response to where we think the Efford Bill needs major amendment here.

We have written to all MPs asking them to attend the debate on Friday, and to vote for the Bill so that it has a chance to get to Committee stage. A copy of that letter is below.

Our aim is for MPs to amend this Efford Bill and use the parts with which we agree later in the NHS Reinstatement Bill 2015.  The Efford Bill does need significant changes and we will urge MPs to vote for some major amendments which we will propose.

If you haven’t yet written to your MP and candidates about the Reinstatement Bill please do so. We are collecting all the responses from candidates, so please do let us know any replies you receive.

The Save Lewisham Hospital Campaign is organising a vigil outside the House of Commons on November 21st – find out details here.

Here is the letter that Lord David Owen wrote to all MPs last week, asking for their support.
David Owen Letter MPs Efford Bill 13-11-2014