I’ve written a couple of articles on what is known as ‘Statutory Instrument 2013 no. 257’ (SI257) over the last few days. The first highlights how the Tories are using a little-known Parliamentary procedure to try to slip through regulations which will completely change the nature of our NHS, fragmenting it into a series of competitive markets where the winners get to wear the ‘NHS’ badge, rather than a true, public National Health Service.
The second detailed a session with Shadow Health Secretary Andy Burnham, in which he touched on the opportunity to use the NHS Constitution, a document that has statutory force, as the best hope of preventing or at least impeding the effects of SI257 if the government succeeds in pushing through its undemocratic resolution.
As a result of those two articles, I’ve come into possession of a series of emails by a Labour MP that provide some insight into Labour’s behind-the-scenes (so far) battle against the ‘negative procedure’ the government is using – a battle for the survival of the NHS in anything like its true form.
This MP – whom I won’t name today but who will be putting his correspondence into the public domain tomorrow – has kindly given me permission to post some extracts from his emails for this article. These emails outline some of the key objections to the government’s resolution as well as providing further examples of specific government promises not to do exactly what it is now doing. They also touch on Labour’s plans for combating this ‘sneak attack’ – but I’ll be necessarily vague, in part, on those as they remain confidential in order not to tip off the government any earlier than need be.
The broken promises
This is almost certainly not an exhaustive list, but these two examples provide absolute proof that the government’s current steps are breaking very clear promises that they gave to Parliament and to MPs last year in order to get their ‘Health and Social Care Act 2012’ into law.
The first refers to an amendment proposed to the then-Health Bill in the House of Lords last year, and to the government’s formal response, as the Labour MP explains in an email to the Senior Clerk of the Health Select Committee:
Last year at the final stages of the Bill in the House of Lords, Baroness Finlay moved an amendment to add ‘anti-collaborative behaviour’ to the general duties of Monitor to ensure this had equal status with the duty to prevent anti-competitive behaviour. In response, Health Minister, Earl Howe (the signatory to the new regulations) said this would be unnecessary because ‘where collaboration was in the interests of patients it would be regarded by Monitor as trumping the need for competition’.
In spite of this absolutely clear promise that competition would not be forced on those commissioning health services, SI257 will do exactly that.
The second has already been quoted by Open Democracy in its article that I point to from my first post on this issue, but it bears repeating. Our Labour MP, who is championing a true NHS, continues his email to the Senior Clerk (emphases mine):
There are other instances where assurances given to Parliament appear to have been misleading. The former Secretary of State, Andrew Lansley, sent a letter to prospective CCGs on 16th February 2012 in which he assured them, “I know many of you may have read that you will be forced to fragment services, or to put services out to tender. This is absolutely not the case. It is a fundamental principle of the Bill that you as commissioners, not the Secretary of State and not regulators, should decide when and how competition should be used to serve your patients’ interests. The healthcare regulator, Monitor, would not have the power to force you to put services out to competition.” The new regulations contradict these promises in Lansley’s letter.
Liberal Democrat Lord Clement-Jones was one of many who expressed concerns about the application of competition law during the passage of the Bill through the House of Lords, and received reassurances from Health Minister Earl Howe that; “Clinicians will be free to commission services in the way they consider best. We intend to make it clear that commissioners will have a full range of options and that they will be under no legal obligation to create new markets, particularly where competition would not be effective in driving high standards and value for patients. As I have already explained, this will be made absolutely clear through secondary legislation and supporting guidance as a result of the Bill.” These regulations do not grant commissioners the ‘full range’ of options that Earl Howe seemed to be promising.
“This [freedom from obligation to marketise commissioning] will be made absolutely clear through secondary legislation” – yet here we have the government not only using secondary legislation to do exactly what it promised not to do, but also trying to do it through a Parliamentary procedure designed to slip the change through with minimal awareness or comment on the part of media and public.
The MP, of necessity, is careful in the language he uses to describe the discrepancy between what Lansley said and what the government is now doing. I am not an MP, so I can put it a lot more bluntly:
Either the government lied when it gave the promise that neither the Health Secretary nor Monitor would be allowed to force health commissioners to put services out to competition – or it sees fit simply to break its firm, formal promises, written in Lansley’s letter and spoken on the record in Parliament, in its slavering eagerness to force a de facto destruction of the NHS as we know it.
Knowing what we know about this government from its record mendacious and venal record, my money is on the former – that Lansley and his leader knew full well that they weren’t telling the truth when they gave their assurances, and simply didn’t care as long as it allowed them to force their pernicious NHS Bill through Parliament.
But take your pick as you see fit – either option shows beyond question that the Tory-led coalition can’t be trusted any further than we could throw big Ben, and that the Tories will stoop to any depths to achieve their ‘holy grail’ of destroying what so many ordinary people rely on.
The legal battle
The MP also questions the legality of the ‘secondary legislation’ (emphases again mine):
As well as appearing to contradict assurances given in Parliament, these regulations may well be legally flawed. The legislature, as recommended by the executive, has an obligation to provide law that is clear and predictable, and the judiciary can only rely on the Acts on the statute books and any supporting discussions of what Parliament might have intended.
The new regulations fall short in many ways, for example:
• The voluntary adoption of key concepts and themes from the European law by the English legislature (as proposed in the statutory instrument) makes it unclear as to the actual ‘direction of travel’. It is as if Parliament has wished to enmesh the NHS in European competition and procurement law, without any democratic scrutiny.
• The statutory instrument is particularly vague on the precise functions of Monitor in the distinct phases of award and execution of procurement and does not map out how Monitor is to function on behalf of key stakeholders in the NHS along with other regulatory processes.
• It is unclear how overall this particular method was chosen (formal tendering, as opposed to less structured methods of competitive tendering such as requests for proposals and quotations, or single-source procurement), when the discussions in the lower and upper Houses of Parliament did not heavily lean in this direction in the first place.
• There is no clarity on under what circumstances the many requirements on various statutory bodies in the Health and Social Care Act to ‘promote integration’ will be deemed sufficient to “trump” the competition requirements laid out in the procurement regulations.
I believe these regulations are not consistent with the wishes of Parliament and the assurances given to members of both Houses during the passage of the Bill. I note also that the statutory impact assessment has not been published alongside the regulations.
Opening other fronts
The emails I have received also indicate other tactics Labour will use to resist the passage of this legislation into law, but as these are confidential I won’t give more details for now, except to say that Labour appears to be doing everything it can think of to prevent this surreptitious and undemocratic move by the government.
A little more time
It’s been widely reported (well, inasmuch as the whole matter is getting reported at all) that the 40-day countdown to the passage of this legislation will mean that it comes into force on 1. April, unless it is defeated. However, it appears that there is a little more time than that for the fight. The Senior Clerk’s response to our MP hero includes this correction:
As you say, instruments subject to the negative procedure are not automatically debated but, as I’m sure you know, a motion (‘prayer’) against such an instrument can be tabled and can lead to a debate. There are 40 days from the day of laying for this motion to be tabled. Days on which both Houses are adjourned don’t count towards the 40; if my calculation is correct, the time won’t expire until the end of the week of 15 April.
However, there are risks that other matters, including the justified furore around George Osborne’s lamentable economic failure leading to the UK’s downgraded credit rating, will create so much noise and so much pressure on Parliamentary procedures and schedules that efforts to combat the ‘negative resolution’ on SI257 will be crowded out or lost in the ‘noise’.
So it’s more essential than ever that you write to your MP and make sure that this crucial, crucial matter receives the Parliamentary time and attention that it merits – and that this malignant legislation is killed. See here for some pointers on how to go about it.
Oh, and when the MP puts his correspondence into the public domain tomorrow, an email to thank him for his efforts and his heart for the NHS wouldn’t go amiss!