NHS Reinstatement Bill – new version published

Published February 25, 2015February 25, 2015 by NHSbill2015_Admin ~ 0

The story so far

The NHS was set up by a law – the NHS Act 1946. Since then, there have been dozens of Acts affecting it – especially over the last 25 years or so.

The most radical of these laws was the Health and Social Care Act 2012, because it abolished the legal duty on the government to provide key NHS services in England, and took marketisation to a new level.

We need a law to reinstate that legal duty, to stop marketisation, and to re-establish public bodies. Without a law, the process now rapidly underway will continue.

This is why Peter Roderick and Professor Allyson Pollock drafted a NHS Reinstatement Bill in August 2014. This Bill was put out for consultation, and dozens of responses from individuals and organisations were received. The consultation on the proposed NHS Reinstatement Bill ended in December 2014.

NHS Reinstatement Bill – February 2015

Peter Roderick and Allyson Pollock have since drafted a new version of the Bill, finalised on 21 February 2015.

The new version of the NHS Reinstatement Bill is available here.

The explanatory notes are available here.

The comparison between the previous and current version of the Bill is available here.

Brief summary of the NHS Reinstatement Bill, February 2015

In short, the Bill proposes to fully restore the NHS as an accountable public service by reversing 25 years of marketization in the NHS, by abolishing the purchaser-provider split, ending contracting and re-establishing public bodies and public services accountable to local communities.

This is necessary to stop the dismantling of the NHS under the Health and Social Care Act 2012. It is driven by the needs of local communities. Scotland and Wales have already reversed marketization and restored their NHS without massive upheaval. England can too.

The Bill gives flexibility in how it would be implemented, led by local authorities and current bodies.

It would:

reinstate the government’s duty to provide the key NHS services throughout England, including hospitals, medical and nursing services, primary care, mental health and community services,
integrate health and social care services,
declare the NHS to be a “non-economic service of general interest”, asserting the full competence of Parliament and the devolved bodies to legislate for the NHS,
abolish the NHS Commissioning Board (NHS England) and re-establish it as a Special Health Authority with regional committees,
plan and provide services without contracts through Health Boards, which could cover more than one local authority area if there was local support,
allow local authorities to lead a ‘bottom up’ process with the assistance of clinical commissioning groups (CCGs), NHS trusts, NHS foundation trusts and NHS England to transfer functions to Health Boards,
abolish NHS trusts, NHS foundation trusts and CCGs after the transfer by 1^st January 2018,
abolish Monitor – the regulator of NHS foundation trusts, commercial companies and voluntary organisations – and repeal the competition and core marketization provisions of the 2012 Act,
integrate public health services, and the duty to reduce inequalities, into the NHS,
re-establish Community Health Councils to represent the interest of the public in the NHS,
stop licence conditions taking effect which have been imposed by Monitor on NHS foundation trusts and that will have the effect of reducing by April 2016 the number of services that they currently have to provide,
require national terms and conditions under the NHS Staff Council and Agenda for Change system for relevant NHS staff,
centralise NHS debts under the Private Finance Initiative in the Treasury, and require the Treasury to report to Parliament on reducing them,
abolish the legal provisions passed in 2014 requiring certain immigrants to pay for NHS services
prohibit ratification of the Transatlantic Trade and Investment Partnership and other international treaties without the approval of Parliament and the devolved legislatures if they would cover the NHS,
require the government to report annually to Parliament on the effect of treaties on the NHS.

Further and consequential amendments would also be necessary and these would be contained in a simultaneous NHS (Consequential Provisions) Act.

Take Action

We need MPs in the next session of parliament to commit to backing an NHS Reinstatement Bill.

Please help by contacting your MP and prospective parliamentary candidates in the run up to the election on May 7, asking them to state their support for an NHS Reinstatement Bill.

Please let us know their response, by emailing <info@nhsbill2015.org>.

You can see whether your MP and candidates have already replied here.

999 Call for the NHS – Convention for the NHS

Published February 16, 2015February 19, 2015 by NHSbill2015_Admin ~ 0

London, Saturday February 28th – 999 Call for the NHS are organising a convention to bring together an alliance of NHS campaigners. Everyone is welcome.

There will be a wide range of NHS campaigners speaking at the event, and a chance for you to network and plan your own campaigns.

One of the speakers will be lawyer Peter Roderick, co-author of the NHS Reinstatement Bill.

Health journalist and Campaign for the NHS Reinstatement Bill press officer Alan Taman will also be speaking about what action you can take to support the NHS Reinstatement Bill, and about the role of the media.

This will be your chance to hear why we need an NHS Reinstatement Bill, what the content of the Bill is, and how you can help campaign to make it reality.

The event is free – but you do need to register. Go to the 999 Call for the NHS to book your place today.

BMJ report – a third of NHS contracts awarded to private sector

Published December 10, 2014December 10, 2014 by NHSbill2015_Admin ~ 0

The BMJ have published (10 Dec 2014) a new report which states that a third of contracts awarded since April 2013 have gone to the private sector.

‘Its analysis of 3494 contracts awarded between April 2013 and August 2014 disclosed to it under requests made under freedom of information legislation showed that, in total, non-NHS providers (including private sector, voluntary sector, and other providers) have secured 45% of contracts awarded since April 2013. The analysis of the data supplied by clinical commissioning groups showed that 1149 contracts (33% of the total) were awarded to private sector providers, 335 (10%) to voluntary and social enterprise sector providers, and 100 (3%) to other types of provider, such as joint ventures or local authorities.’

Gareth Iacobucci, BMJ 2014;349:g7606

In response, BMA council chair, Dr Mark Porter, said:

These figures show the extent of creeping privatisation in the NHS since the Health and Social Care Act was introduced. The Government flatly denied the Act would lead to more privatisation, but it has done exactly that.

Enforcing competition in the NHS has not only led to services being fragmented, making the delivery of high-quality, joined-up care more difficult, but it has also diverted vital funding away from front-line services to costly, complicated tendering processes.

Dr Mark Porter, 10 Dec 2014

Peter Roderick, barrister and co-author of the proposed NHS Reinstatement Bill said:

This is precisely what was anticipated would happen during the passage of the Health and Social Care Bill. It’s one of the main ways in which NHS privatisation is now unfolding. The NHS Reinstatement Bill would stop this.

Peter Roderick, 10 Dec 2014

We need to keep the NHS in the hands of the public.

Please contact your MP to ask them to support the NHS Reinstatement Bill.

Response of Peter Roderick and Professor Allyson Pollock to Lord Hunt

Published November 26, 2014November 27, 2014 by NHSbill2015_Admin ~ 0

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.

Published November 25, 2014November 27, 2014 by NHSbill2015_Admin ~ 0

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’

Published November 24, 2014November 27, 2014 by NHSbill2015_Admin ~ 0

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 service’ http://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

Published November 22, 2014November 27, 2014 by NHSbill2015_Admin ~ 0

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.

21st 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

More 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.

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

Published November 20, 2014November 27, 2014 by NHSbill2015_Admin ~ 0

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.

Response to Clive Efford MP’s NHS Bill

Published November 13, 2014November 27, 2014 by NHSbill2015_Admin ~ 0

On Friday 21^st November 2014, the House of Commons will debate a Private Member’s Bill introduced by Labour MP Clive Efford.

The National Health Service (Amended Duties and Powers) Bill 2014 would repeal the ‘Competition’ sections of the 2012 Health and Social Care Act. This is to be welcomed as a step in the right direction of reducing procurement and tendering procedures, subject to clarification that the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 would also be revoked. These are the Regulations that require commissioners to advertise new NHS contracts unless the services are only capable of being provided by a single provider.

The Bill, however, would not re-establish the Secretary of State’s duty to provide the NHS, despite the long title of the Bill saying that it would. Neither would it abolish the commissioner-provider split, as proposed by the NHS Reinstatement Bill.

Other points of concern are that it would for example:

appear to defer unnecessarily to EU competition law;

not reverse the 2012 Act’s prospective abolition of NHS trusts, and their transformation into NHS foundation trusts or take over by private companies; and

leave Monitor in place with the same main duty, without a statutory purpose and continuing to licence private providers.

Further clarification is also required as regards the provisions covering the Transatlantic Trade and Investment Partnership Treaty and use of the term ‘‘service of general economic interest”.

Professor Allyson Pollock, Peter Roderick and David Price have prepared a response to the Bill, which includes their provisional views as to whether some of the key provisions deserve to be supported or opposed and where clarification is needed. That response is here:

Response to the National Health Service (Amended Duties and Powers) Bill 2014, published on 7th November 2014 (“the Efford Bill”)

Will NHS England be whittled down to a core service?

Published October 13, 2014November 19, 2015 by NHSbill2015_Admin ~ 0

Professor Allyson Pollock, a public health doctor based at Queen Mary, University of London, and Peter Roderick, barrister and senior research fellow also at Queen Marys, are the driving force behind the proposed NHS Reinstatement Bill.

In the BMJ (11 October 2014) they have published their paper ‘A Wolf in Sheep’s Clothing – Is Monitor reducing hospital and Community services in England under the guise of continuity?’

They outline how market forces and budget cuts are challenging the financial viability of hospitals in England, with NHS beds and other services continuing to close as thousands of staff are laid off.

The proposed NHS Reinstatement Bill would abolish Monitor and prevent the reduction of Foundation Trust services from proceeding.

You can read the rapid responses to the article at the BMJ site here.

If you would like to see the proposed Bill become law, then please ask your local MP and prospective parliamentary candidates to ask if they support the NHS Reinstatement Bill.

Below you can listen to Allyson Pollock and Peter Roderick discuss the issue in ‘Is NHS England being whittled down to a core service’ from BMJ talk Medicine. (They discuss the proposed NHS Reinstatement Bill from 15.04 onwards.)