Converting the draft NHS Reinstatement Bill 2015 into Law

The vast majority do not want the creeping privatisation, and the dismantling of the NHS as it was originally conceived by Bevan. At local level there is a growing resistance to the cuts to services.  However local protest, without well-argued and transformative policy and legal changes at the national level, pose little threat whilst the Tories are in power.  The Labour Party will set out its stall in the Manifesto before the next election to renationalise the NHS. This Briefing Note suggests practical and structured steps for doing this by elaborating on the draft NHS  Bill 2015.

  1. Key Questions for Labour on future NHS planning

The Labour Party Conference September 2017 endorsed Composite Motion #8 for the repeal of the NHS Health & Social Care Act 2012[1].  Delegates believed that the present marketization policies and funding cuts are destroying the NHS, and that these must be immediately reversed by the next Labour Government.  This is not yet formal Labour Party policy, and many MPs still seem to be unaware of the privatisation trajectory of Tory policy towards the NHS.

Draft NHS Reinstatement Bill 2015:

  •  fully restores the NHS as an accountable public service

  • reverses 25 years of marketisation

  • abolishes purchaser-provider split

  • ends contracting & outsourcing

  • re-establishes public bodies accountable to local communities

This Briefing Note concerns a grass roots campaign by Leeds KONP to actively engage with Labour MPs in the Yorks/Humberside region and start a conversation on why the NHS must be de-privatised (i.e. renationalised).  According to the records, in August 2017, only 4 out of 36 of Labour MPs supported the draft NHS Reinstatement Bill 2015 and the repeal of the 2012 Act.   We are asking them why and explaining what Composite Motion #8 actually means in practice.

The 2012 Act with its 470 pages and supported by secondary legislation is, as the people at the Labour Party Conference 2017 recognised, leading us to a US-style willingness-to-pay private health insurance system rather than one providing for all and funded through general taxation.  The problem for NHS campaigns is that this threat is only dimly understood which may explain why Labour MPs have not supported the draft NHS Reinstatement Bill 2015 prepared by Allyson Pollock and Peter Roderick.

In September ’17 Leeds KONP prepared an information pack for MPs in the region on the consequences of the marketising the NHS through the present top down reorganisation schemes, and the failure of the present Tory government to fund the service properly. These were sent out and meetings comprising informal conversations were requested. The results of these are similar – many  MPs see the NHS as a black policy box that is too difficult to look into.

During the first meeting, Jon Trickett (Hemsworth MP), welcomed grass roots action and suggestions for NHS policy prescription, and said a major concern is what immediate action should the Labour Party take on taking office.

Reasons why Labour MPs may not support the NHS Bill

  • Implications of 2012 Act are not well  understood

  • Too complicated and difficult without another top-down reorganisation

  • Support New Labour marketisation’

According to lawyers experienced in drafting Statutes, repealing the 2012 Act in full will take several years.  In the meantime the question arises on what to do on Day 1 to stop the rot.

This raises two further key questions:  what should the NHS look like in the future as a consequence of the repeal of the 2012 Act? and what should be done in advance of the next election to prepare for the repeal process?  The draft NHS Reinstatement Bill needs to be further elaborated in order to answer these questions.

This Note takes a structured Public Administration Reform approach that sees the law as part of an enabling framework for health services.  It assumes that the future NHS will be designed with social democratic rather than the present neo-liberal objectives of the Tories[2].

  1. The 2012 Act is a policy instrument for neo-liberalism

The market ‘reform’ policies now imposed on the NHS are derived from a political ideology,  rather than from an evidence-based evaluation of what works best in the health sector for the benefit of all.  They are set up as a virtual template through which health care policies are to be judged.  This template sees the market as providing a frictionless resolution to social inequality by denying that inequality matters.

The ‘reforms’ privatise public assets to promote capital accumulation, deregulate to ‘free up’ individual enterprise, enact  anti-union legislation, and shrink state responsibility and involvement in social welfare. Their justification is that they are believed to create competition, increase efficiency and reduce financial costs to (higher income) taxpayers.

These policies undermine the very social solidarity that has been supported by the NHS since its original founding, and perhaps this is the real purpose.  The Tories have absolutely no mandate for them in the 2012 Act.

In non-market institutions, such as the NHS with its essential public health dimensions, the 2012 Act establishes proxy markets to break down the services into discrete parts that ‘providers’ (in-house or private sector) can bid for.  However, the transaction costs of running the internal market (tendering, contracting, costs of regulation etc)  are estimated to exceed 10% of the NHS’ present annual costs and reversing marketization would at a stroke eliminate much of the funding squeeze that the NHS is experiencing.

NHS policy is now led by Ministerial advisers who are hired to shape the neoliberal ‘reforms’ and who are skilled at using the templates.  Also by international management consultants who have learned their trade with the Bretton Woods institutions leading structural adjustment in the developing world since the 1980’s – with their budget cuts and the consequent collapse of public health care services for those who cannot afford private medicine. In this respect, the SHA report, that NHS privatisations had their origins in the 2012 World Economic Forum in Davos, shows only that we are now regarded by international capital as part of the global under-developing world.

The damage caused by this marketization approach is undermining the whole premise of good management – which is to encourage integration rather than disintegration.  It results in:

  • fragmention as different hospitals and other facilities compete with each, other, rather than collaborate, for patients and market share
  • a lack of a whole systems approach to prioritising policy around chronic disease and the wider public health
  • an inability of the health departments at all levels to manage relationships and confront powerful vested interests
  • the loss of management knowledge and discretion over decisions which are set out by consultants – leading to poor decisions.

Since 2012 the government has imposed a plethora of ‘reforms’ to the NHS which are leading to uncertainty in planning the services, cuts and rationing, and which are privatisation by stealth.

They are presently being challenged by concerned individual citizens and organisations through the Courts.

In particular the present proposal for Accountable  Care Organisation (ACOs) are a final step setting the grounds for franchised, outsourced, commercialised health services run for private profit and not the public good.

Reversing the inevitable consequences of the 2012 Act will also mean reversing the internal institutional damage caused to the NHS itself. Measures to do this must be addressed in the new NHS Act to be introduced by Labour because doing nothing is not an option.

Privatisation by stealth

  • Sustainable Transformation Plans – any possible imagined benefit completely negated by imperative to make massive savings
  • 14 STP areas now subject to Capped Expenditure Process – further financial squeeze will lead to dangerous and arbitrary reduction in services
  • STPs to become American style ACOs; first 8 now signed up (ripe for sale?)
  • Cash limited budget imposed by NHSE, grossly inadequate for needs of local populations
  • Naylor – selling off NHS estate; ‘Project Phoenix’ saddles NHS with escalating PFI repayments
  1. Steps in Repealing the 2012 Act in Parliament

The draft NHS Reinstatement Bill 2015 is not a blueprint but it does outline the general purpose, direction, and scope needed for the repeal measures that have now been endorsed by the Labour Party Conference. These must be elaborated into proper law-making practices with well-formed objectives and priorities. Within Parliament itself statute drafting is usually preceded by a report from an independent cross-part advisory committee(s).

Leeds KONP has prepared a simple flow chart to show the steps in repealing the 2012 Act.  These steps are standard for the preparation of (any) new legislation in Parliament.

Significant portions of the legal process will be prepared by Whitehall but it is difficult to imagine civil servants thinking creatively through the ‘renationalisation’ of the NHS.

So the Labour Party must do its thinking in advance of taking power and be prepared for bitter fights every step of the way from the Tories, and resistance from vested interests in the Civil Service and amongst senior NHS planners who have set up the present privatisation programme.

We should be aware that, if the NHS Reinstatement Bill is not enacted before a subsequent election the Tories will, if they win, simply revert to the 2012 Act.

The standards procedures for statute preparation requires the establishment of a government department policy team tasked with the job.   This may take up to 10 months so the ‘what to do on Day 1’ is a serious question.

A consultation document is usually prepared (Step 4: ‘Green Paper’) to allow external and expert critiques to be made of the proposals.

The White Paper (Step 5) sets out the clear policy intent of government and provides the terms of reference for the detailed drafting of the Bill by Parliamentary Counsel – acting under the directions of the government department responsible for the Bill (Step 6: Prepare Bill).  At this stage, the draft NHS Reinstatement Bill 2015 will provide a useful checklist.

  1. Elaborating on the draft NHS Reinstatement Bill 2015 

Laws in public services are designed to shape legal relations between the different agencies of government and its citizens, and to set out mandates and responsibilities for each. They define the scope and limits of the decisions that can be made by government agencies – and rules on how the decisions may be made. They impose duties and standards of conduct, and confer powers that encourage general habits of ‘good’ management practice.  The 2012 Act has enabled privatisation and marketization following neo-liberal principles. The new NHS legislation will enable social democratic principles.

Therefore repealing the 2012 Act means reversing the neo-liberal agendas of the last 40 years and re-establishing social democratic principles through a law that enables these principles and the practices that result.

The draft 2015 Bill is not a blueprint and may usefully be elaborated to set out the principles, policies and proposed institutional architecture of a future NHS ready for consideration when the next Manifesto is written.

The shape of the NHS proposed by a future Labour may be described in Steps 1 to 3 as shown in the flow chart.   They need to be prepared at this stage using broad brush approaches as speed is of the essence.

Leeds KONP has endeavoured since October to meet with Yorks/Humberside MPs to establish an informal discussion on the reason why the draft NHS Reinstatement Bill 2015 has not been taken up by MPs.

Findings so far suggest that many MPs simply do not grasp the trajectory set by the Tories for the NHS, the costs and extent of the privatisation measures, nor do they have an understanding of the different management options between privatisation and old-style central planning.

Therefore the 3 Steps below must both persuade and inform.

Step 1: Establish Policy Principles for reinstating the NHS must consider the high level and core social democratic principles to be pursued by the Labour Party and establish the criteria and policies for determining what the future NHS shall look  like in a social democracy.  This requires a clear policy compass or direction.

In practice, if we don’t start with basic policy principles then we end up trying to change bits of the 2012 Act at the margins thereby ignoring its underlying assumptions.

An example is set out below of principles established by the Bevan Commission 2008-2011 which was commissioned to ask what Bevan would do with the NHS  Britain if he was alive today:

  • Principle 1: Universal access, based on need  (Bevan 1948)
  • Principle 2: Comprehensiveness, within available resources (Bevan 1948)
  • Principle 3: Services free at the point of delivery (Bevan 1948)
  • Principle 4: A shared responsibility for health between the people & the NHS
  • Principle 5: A service that values people (as citizens and employees
  • Principle 6: Getting the best from the resources available
  • Principle 7: A need to ensure health is reflected in all (health and social) policies
  • Principle 8: Minimising the effects of disadvantage on access and outcome
  • Principle 9: A high quality service that maximises patient safety
  • Principle 10: Patient and public accountability

These demonstrate that more is at stake than simply providing services free at the point of use as in Principle 3 above. The Bevan Commission was reconvened in 2016 for NHS Wales and has produced a consolidated list of policy principles

Many of the principles demand a fundamental re-think  about how the NHS has evolved over the last 20 years and imply quite profound changes to the way the NHS is to develop in the future.

This re-think is not to be had from consultants from the big audit bureaus who have little knowledge or sympathy with the renationalisation of the NHS.

Step 2:  Develop Position Statements on key issues within a renationalised health sector and its various agencies and subsystems – which comprise the pyramid of health facilities and associated services that deliver personal health services and non-personal health actions.

These will include standard categories adopted in structured Public Administration Reform programmes:

  • Enabling Framework for Institutional, Policy, Legal /Regulatory and Fiscal Issues
  • Organisation-level and management issues
  • Citizen Representation issues

These are a complex but have been well written about over the last decade[3]

Day 1 Questions include:  what parts of the 2012 Act may be immediately repealed by Ministerial Decree before the new NHS Act is enacted; what to do about the ruinous PFI contracts; where to find health planners committed to the new NHS Act;  how to tackle certain professional interests who are happy to have their mouths stuffed with gold; etc

Step 3:  Design Institutional Architecture to implement the new NHS Act on the ground.  The draft 2015 Bill sets out an organisation structure based on Regional Health Boards accountable to local governments.  The NHS Boards would encompass a public service and cooperative ethos as opposed to the rational choice ethos promoted by the present 2012 Act,

This requires strong political leadership and judgement that balances values and interests – and the people doing this require an understanding of what is involved.

The structures, processes, financial controls all have to be designed to overcome the ‘wicked problems’ inherent in public services[4]. There are other organisational options regarding subsidiarity, scale, function, etc that deserve re-examination.

  1. Action Planning for Steps 1, 2, and 3

There is no shortage of material dealing with the NHS and its condition, and what is to be done. For the purposes of the next election and Labour’s Manifesto Steps 1, 2, and 3 may usefully be addressed by people who have been campaigning for an end to privatisation in the NHS through a  Working Group.

There are many different groups and individuals within academia, citizen organisations, political groups etc , each with a different and valid emphasis on what is most important. Gaining a consensus at this stage is less important than identifying the key issues, especially regarding Step 2: Position Statements as developed from the draft 2015 Bill and from issues that have arisen from the Composite Motion #8.

This would provide a clear view on the long term development of a renationalised  NHS, on the assumption that this is only the preliminary stage in the longer term thinking needed.

It will also provide a clear view on how to address critical Day 1 Questions.

The result of this would be a Discussion Paper that contributes to the preparation of the next Labour Manifesto on the nHS.

[1] See arguments in:

[2] There is a vast literature on neo-liberalism and the failures of the market in health care and the arguments are not new.  TINA was rejected from the beginning.  For an earlier example see : Ben Griffith (1999) Competition and Containment in Health Care NLR 1-236 July/Aug ’99.

[3] As an example see Hunter.D (2016) the Health Debate  Policy Press Bristol

[4] Seddon.J (2008) Systems Theory in the Public Sector).

Briefing Note produced by Leeds Keep Our NHS Public