Why we need a political campaign to reinstate the NHS (Left Foot Forward: 25 March 2013)

This extract is from the forthcoming publication by Prof Allyson M Pollock and David Price on the future of the national health service for the Centre for Labour and Social Studies (Class)

At 2.36 on the afternoon of Tuesday 27 March, 2012 the Health and Social Care Bill 2011, repealing the legal foundations of the NHS in England, was given royal assent and became law.

Campaigning groups, NHS staff and professional organisations had fought for nearly 2 years against what must count as one of the most regressive pieces of UK legislation of the last 60 years.

That the bill became law in the end is testimony not to our robust democratic processes but to the autocratic power of government. The coalition came to office in May 2010 on a manifesto promising no further top-down reform of the NHS, and then promptly did the opposite.

The bill passed into law without an electoral mandate because no major political party or parliamentary institution in England was willing or able to defend the NHS. It was a constitutional outrage. Its passing marked the end of a National Health Service in England that for more than sixty years served as one of the most successful models in the world, widely praised and copied.

The UK NHS was created by national consensus in order to ensure that every citizen was guaranteed health care. Underpinning these arrangements was the secretary of state’s core duty to provide or secure a comprehensive health service, a duty repealed by the first clause of the Health and Social Care Act.

David Owen's NHS bill offers a final chance to save our health service (New Statesman: 29 January 2013)

Labour and the Lib Dems must support a bill that restores the right of all citizens to comprehensive care.

David Owen has today published in full a bill in the House of Lords to reinstate the NHS and the secretary of state’s legal duty to provide a national health service throughout England. This duty has been in force since 1948 and is the legal foundation of the NHS and our rights and entitlements to health care, a duty the coalition’s Health and Social Care Act 2012 is abolishing.

Owen’s 'reinstatement' bill puts into reverse the monstrous 473 H&SC Act, which from April this year abolishes the NHS throughout England, reducing it to a stream of taxpayer funds and a brand or logo for the public bodies and private companies which will receive them. The bill does not entail yet more disruptive reorganisation, it simply restores the democratic basis of the NHS and the rights and entitlements of all citizens to comprehensive care; rights which were shredded by the 2012 Act.

As Owen has warned: "the NHS has remained by far and away the most popular public service because people sense rationing and restrictions are inevitable, and resources limited but that they value and recognise the fairness of those decisions being taken not by market forces or quangos but by some overall democratic, open, transparent decision-making."

Briefing paper - the NHS reinstatement bill (Opendemocracy.net: 30 January 2013)

An explanation of what David Owen's new bill is trying to achieve and why it is neededThe Abolition of the democratic and legal basis for the NHS in England

The democratic and legal basis for the NHS in England was abolished by the Health and Social Care Act 2012. The impact of this fundamental change is already being felt, ahead of the shift to the new market system in April 2013.  

The Act ended the Secretary of State’s duty to secure or provide health services throughout the country, a duty that had been in force since 1948.

A minister may only be held to account legally for services that he or she is responsible for by law. In future, if we can’t get the health care we need, ministers won’t have to worry about being taken to court on this count, and there will be no Primary Care Trust to put pressure on.  This means fewer rights for people in England to get the health care we need – at a time of unprecedented cuts and closures.


NHS bill 'will let Andrew Lansley wash his hands of health service' (The Guardian: 30 August 2011)

Legal opinion funded by campaigners suggests 'hands-off' clause will remove the health secretary's accountability. 

The health secretary will be able to "wash his hands" of the NHS after forthcoming legislation which will take away his duty to provide a national health service, according to legal advice funded by campaigners.

The legal opinion, commissioned and paid for by members of the 38 Degrees website, justifies the widespread public concern about the government's health reforms, in spite of Andrew Lansley's assurances that he has listened and responded to criticisms, they say.

The independent legal team says the health and social reform bill removes the health secretary's responsibility for NHS provision through a "hands-off" clause designed to give autonomy to commissioning groups.

David Babbs, executive director of 38 Degrees, said one legal opinion suggested responsibility for provision would instead fall to an unknown number of "clinical commissioning groups". Babbs said: "The so-called 'hands off' clause … removes political accountability, which is the only real control voters have on the way the NHS is delivered. We won't be able to fire people on regulatory bodies or private healthcare companies when things go wrong.

"None of us voted for these fundamental changes to the NHS. They weren't in any party's manifestos, or the coalition agreement, so 38 Degrees members have clubbed together to get legal advice to convince MPs that the changes shouldn't be pushed ahead and that the public's concerns need to be taken seriously."

Dr Clare Gerada, chair of the Royal College of GPs, said the legal advice gave cause for concern: "Having seen these legal opinions, they raise serious concerns for GPs. As family doctors, we want to ensure any changes to the NHS safeguard its future and benefit patients. The advice of these legal experts brings this into question. That is worrying and the government needs to respond."

The legal opinion warns that EU and domestic competition rules, which apply to business, will now apply to decisions about who provides healthcare and the running of the NHS. It says the new structure will work to the advantage of private health companies that have experience of complex procurement processes and legal teams that can challenge decisions.

A second lawyer, Rebecca Haynes of Monkton Chambers, said: "The complexity of the regime and the administrative burden in complying with the rules (which are constantly evolving through a rapidly expanding body of case law) cannot be underestimated … The relative ease with which bidders can bring claims in the high court at any stage of the procurement has led to an increased appetite for litigation and administrative challenge."

A Department of Health spokeswoman said the health secretary's responsibility for "promoting a comprehensive health service" will not change. She added: "The bill does not change current UK or EU competition legislation or procurement legislation or the areas to which they apply."


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