BMA position on NHS Reinstatement Bill

Below is BMA position on the NHS Reinstatement Bill.

It is taken from a report that looked both at the proposed NHS Reinstatement Bill, and also the National Health Service (Amended Duties and Powers) Bill (also known at the ‘Efford’ Bill), that was put forward by Labour MP Clive Efford in 2014 but was filibustered out in committee prior to the 2015 General Election.


The BMA has strong policy in nine areas of particular relevance to the issues covered by one or other or by both Bills:

i. Repeal the Health and Social Care Act 2012,
ii. Restore the Secretary of State’s duty to provide,
iii. Limit the Secretary of State’s powers over operational matters and day-to-day running of the health service,
iv. End the purchaser-provider split, the internal and external market and competition,
v. End PFI,
vi. exempt the NHS from TTIP,
vii. Oppose a charging system for asylum seekers and undocumented migrants,
viii. Ensure public accountability, and
ix. Support national terms and conditions of service.

We consider that these areas of policy are the clearest and simplest way of framing the TFG’s work. We therefore adopt this approach below.

(a) and (b) Repeal the Health and Social Care Act 2012, and restore the Secretary of State’s duty to provide

Neither Bill repeals the 2012 Act as such. Both Bills repeal some of it. The Reinstatement Bill repeals more of it than the Amended Duties Bill.

As regards restoration of the duty to provide, paragraphs 15-19 of the final report are almost entirely accurate.

Restoration of the SoS’s duties to provide or secure provision (Clause 1) and to provide listed services throughout England (Clause 3) only appears in the Reinstatement Bill, both of which are in line with BMA policies. Unfortunately, only restoration of the latter duty is recognised in the final report as
being in line with BMA policies.

(c) Limit the Secretary of State’s powers over operational matters and day-to-day running of the health service

The Reinstatement Bill limits the Secretary of State’s powers over operational matters and day-to-day running of the health service by imposing restrictions on the power of issuing directions, based on the general duty of autonomy in the 2012 Act which the Bill would repeal. The Amended Duties Bill does not include express restrictions on the power to issue directions, and does not repeal the duty of autonomy.

Paragraphs 20-26 are incoherent and contain several inaccuracies. They appear to be seeking to fabricate a pretended conflict between BMA policies to restore the duty to provide – the legal foundation of the NHS since 1946 – and generalised ‘political interference policies’ which are not described or synthesised to help the reader understand what they actually say. The text of the relevant policies are more nuanced and specific, namely: they recognise damaging short-term political initiatives, believe that ministers should set policy and not control operational matters; and state that the NHS is far too important to be left in the hands of the politicians (both 2005, PB page 245); and propose an independent board for NHS management with a long-term strategy free of party political interference (2008, page 244).

The legal duty to provide is a quite separate matter from damaging short-term political initiatives, control of operational matters and management, and the desirability of a long-term strategy (which we support).

(d) End the purchaser-provider split, the internal and external market and competition

The BMA has clear, strong and reiterated policies over several years opposing the purchaser-provider split, the internal market and commercialisation. In 2011 it called for market-based policies to be abandoned, and in 2013 called on the BMA to defend the NHS. Some of these policies are accurately identified and synthesised in paragraph 28 of the final report.

The Reinstatement Bill abolishes the purchaser-provider split and is in line with these strong and reiterated policies opposing the market, competition and commercialisation.

The Amended Duties Bill does not abolish the purchaser-provider split, and extends NHS contracts to private providers (Clause 6(5)) but the final report does not mention this. It does abolish the 2012 Act’s main competition provisions,

As stated above, however, rather than evaluating the consistency and strength of BMA policies against the internal and external market, and noting the clear difference between the two Bills, the final report sets up another pretended conflict between these policies, and concerns about the potential
disruption from structural changes – and then fails to mention the provisions in the second version of the Reinstatement Bill which set out a flexible approach and timescale to bottom-up implementation led by local authorities working with current bodies to design the new structures. The TFG should be championing BMA policies against the market loudly and clearly.

(e) End PFI

Seven strong and clear policies opposing PFI have been identified. Most recently in 2014, the ARM demanded legislation to rescind all NHS PFI debt and demanded that government does not enter into any new PFI scheme. The Reinstatement Bill would centralize PFI debts in the Treasury and require the Treasury to report to Parliament on its proposals for reducing them.

(f) Exempt the NHS from TTIP

In 2014, the ARM demanded that the NHS is exempted from TTIP, believing that the treaty will tip the balance of power further towards private corporations and away from the public sector. Both Bills are in line with this policy.

However, it is not accurate to state in paragraph 92 that the Amended Duties Bill specifically exempts the NHS from TTIP – Clause 14(1) only applies to procurement and competition obligations, and so would not extend, for example, to dispute-settlement procedures or advance notice to the US
government of proposed regulatory measures.

Neither is it accurate to state paragraph 94 that the Reinstatement Bill seeks to require parliamentary approval of any international treaty that has an impact on the NHS in terms of procurement or competition regulations – its impacts are not so limited.

TTIP is subject to the EU common commercial policy, and the UK does not currently have formal legal competence in this regard.

(g) Oppose a charging system for asylum seekers and undocumented migrants

We agree with paragraphs 107 and 108 of the final report on this matter: the Amended Duties Bill is silent on this issue, and the Reinstatement Bill is in line with BMA policy opposing a charging system for asylum seekers and undocumented migrants.

(h) Ensure public accountability

The BMA has policy in support of the public accountability of senior executives in the NHS and of the health service as a whole; neither Bill focuses on this explicitly. The Reinstatement Bill addresses this in clause 17 by re-establishing CHCs, with the purpose of representing the interests of the public within the health service.

(j) Support national terms and conditions of service

Unfortunately BMA policies on this vitally important issue were not synthesised and added to the final report. It is important that any statutory provision relating to that matter furthers BMA policies, the Reinstatement Bill does this clearly, but this matter has been blown up out of all proportion in the summary in an attempt to undermine the Reinstatement Bill. A constructive approach would be for BMA council to specify clearly the legal provisions it wishes to see on terms and conditions of service.