This week in the House of Commons, the Health Secretary, Andrew Lansley, and a number of other MPs mentioned the Save our NHS campaign. We have made a detailed statement on Mr Lansley’s statements here.
Below is a transcript (copied from Hansard) of the specific things mentioned, along with our comments (shown in red).
Mr Lansley: This Bill, for the first time, stops the Secretary of State—and, indeed, Monitor or the NHS commissioning board—from trying deliberately to increase the market share of a particular type of provider. If the previous Labour Government had put such a requirement in law when they were in office, hundreds of millions of pounds would not have been paid to independent sector treatment centres to carry out operations that were not required and never took place. If the Opposition had their way this afternoon, the safeguards that we intend to put in place would not be available.
In its response to the opportunity provided by Report stage, the Labour party is being not progressive but reactionary, while the trade unions are being misleading in the presentation of their campaign. To be specific, the trade unions and other proxy organisations such as 38 Degrees have gone to some trouble to misrepresent the Bill in order to attack it.
That’s simply not true. We have not misrepresented information, deliberately or otherwise. If the Secretary of State still believes we have then we would invite him to provide examples. We note Mr Lansley made this statement inside the House of Commons – where libel laws do not apply.
Toby Perkins (Chesterfield) (Lab): I am grateful to the Secretary of State for giving way. Does he think that the British Medical Association, too, is misrepresenting the position when it says that even after Report stage there will still be too much emphasis on using market forces to shape health services? Is the BMA misrepresenting the truth as well, or is it just the Labour party?
Mr Lansley: As far as the BMA is concerned, I was interested to read this morning a letter whose lead signatory was Hamish Meldrum, the chairman of the BMA council, whom I know well. It was curious because his objection to the Bill, which he wants to be amended, was about the introduction and extension of the role of “any qualified provider”. However, that extension is not in the Bill. It is not occasioned by the Bill; it is a consequence of the way in which commissioners—
[Interruption.] No, it does not. If there were no Bill, it would be open to strategic health authorities and primary care trusts to extend “any qualified provider” and patient choice in the NHS to whatever extent they wished. The Bill does not make that happen. The point is that under the legislation there is a stronger safeguarding process, because the commissioners—
Toby Perkins rose—
Mr Lansley: I will finish answering the hon. Gentleman before letting him intervene again.
The safeguard structure will be stronger, because commissioners must ensure, for example, that they meet their duty of continuous improvement of quality, their duty of safety and their duty of integration of services and other duties, including a duty to promote patient choice—but of course they have to balance those duties. Whether they extend “any qualified provider” is a matter of judgment. If they took the view that the extension of patient choice would be inimical to the integration of services and the improvement of quality, they would not go ahead with it. The hon. Gentleman and his colleagues should recall that they have put in an NHS constitutional right for patients to exercise choice, so if the commissioners think it is possible to promote choice and improve quality by extending the any qualified provider remit, they can do it, but the Bill is not what enables it. It is therefore curious that the Bill should be attacked on that basis.
Toby Perkins: I am grateful to the right hon. Gentleman for giving way a second time. That was a very long answer to a short question, but I understand the Secretary of State to be saying that the BMA is wrong and the Labour party is wrong. Everyone I meet in the health service tells me that it is the Secretary of State who has got it wrong. He has come back here once again, confirming that he is not listening to what people are saying to him. He thinks the BMA is misleading people, but is it possible that he is the one who has got it wrong?
Mr Lansley: I will give the hon. Gentleman a shorter answer this time: he does not talk to enough people in the NHS. Let me return to the important point that I was about to make. I was saying that criticism of the Bill has typically developed to the point of literally misrepresenting the facts in order to attack the Bill, as was the case with 38 Degrees.
Again, that’s simply not true. We have not misrepresented information, deliberately or otherwise.
I am indebted to my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) for sharing with me a letter that he prepared for the better information of his constituents. He looked at the legal opinion obtained by 38 Degrees and concluded that it did not support the views that those behind the 38 Degrees website evidently wished that it did.
Again Mr Lansley makes false accusations that are simply not true. We have not misrepresented information, deliberately or otherwise. 38 Degrees is a member driven campaign movement with over 850,000 members from all over the UK. Thousands of us paid for two legal opinions to get to the bottom of the muddle Andrew Lansley has created with his latest NHS plans. We obtained a legal opinion on the duty to provide and a legal opinion on competition and procurement. We made both public and invite Mr Lansley to read them for himself.
For example, 38 Degrees claims that the Bill removes the Secretary of State’s duty to provide a comprehensive health service. However, its own legal advice makes it clear that the Secretary of State has never had a duty to provide a comprehensive health service—only a duty to “promote” a comprehensive health service, which is exactly reproduced in clause 1.
We would invite My Lansley to read the legal opinion here: http://www.38degrees.org.uk/page/content/NHS-legal-advice/. In no place in the legal opinion, or any summary documents, do we make this claim. The phrase Mr Lansley repeats is present on our website – but its use predated the legal opinion he is referring to and has not, to the best of our knowledge, been used since. The matter was clarified for us in the legal opinion which was published last month.
Clause 1 also makes it clear that the Secretary of State must secure the provision of that service. The “duty to provide” certain services to which 38 Degrees refers is a duty that I, as Secretary of State, currently delegate to primary care trusts. In future, the Bill will—in exactly the same way—pass that duty of the Secretary of State to the NHS commissioning board and to clinical commissioning groups. In other words, the situation will be legally unchanged. The Secretary of State has a duty, and discharges it through organisations to which he or she delegates that power. Strictly speaking, they have more direct statutory duties, but the position in terms of the duty to provide will not change.
Following the advice from Stephen Cragg, it is clear that the “duty to provide”, which is currently placed on the Secretary of State, primarily under s.3(1), but also under s.1(2) for the purpose of promoting a comprehensive health service, is being removed. Therefore the duty to provide a national health service is lost and instead is replaced by a duty on an unknown number of commissioning consortia with responsibility for their separate areas only. And, as our legal advice makes clear, the Commissioning Board will not have the same duty as currently contained in the Act, which is ultimately placed on the Secretary of State. Therefore, it is simply not correct to state that the position is the same from a legal perspective.
Our legal advice makes this point clear in the executive summary:
It is clear that the drafters of the Health and Social Care Bill intend that the functions of the Secretary of State in relation to the NHS in England are to be greatly curtailed. The most striking example of this is the loss of the duty to provide services pursuant to section 3 of the NHS Act 2006, which is currently placed on the Secretary of State. This will be transferred to the commissioning consortia, and reformulated accordingly. In real terms this means that, effectively, the government will be less accountable in legal terms for the services that the NHS provides.
Currently, the duty in section 3(1) has been delegated to Primary Care Trusts (PCTs). However, this is pursuant to statutory powers of delegation (for example under section 7 of the NHS Act 2006), and these powers can be exercised in a different way, or not exercised at all, if the Secretary of State so chooses.
Effectively, the duty to provide a national health service would be lost if the Bill becomes law. It would be replaced by a duty on an unknown number of commissioning consortia with only a duty to make or arrange provision for that section of the population for which it is responsible.
38 Degrees also claims that the Bill opens up the NHS to competition law, but its own legal advice—which it obviously did not like—made clear that there would be no change between the present competition regime and that which would operate if and when the Bill became law. I am very grateful to my hon. and learned Friend, whose forensic analysis accords with our own view. The provision, under the Bill, of a comprehensive NHS is watertight, and it is equally clear that the Bill does not change the extent of the application of competition law and EU procurement rules.
The 38 Degrees campaign should be seen for the distorting and misleading political propaganda that it is.
It’s a misrepresentation of our legal advice (maybe, to use Lansley’s words, “distorting and misleading political propaganda”?) to claim that our legal advice concludes the bill has no implications for competition in the health service:
As regards the applicability of domestic and European competition law to the NHS, it is likely that, even as matters stand, and in view in particular of recent non-statutory reforms which increase the involvement of the private and third sector in health services provision, competition law already applies to PCTs and NHS providers.
The reforms introduced by the Bill however will serve to reinforce that conclusion and introduce elements which make it even more likely that domestic and European competition law applies to the NHS. There is nothing in the Bill which has or can have the effect of preventing the application of competition law. Nor can the Act preserve the enforcement of competition law to the sectoral regulator, Monitor, since a breach of the prohibitions on anti-competitive conduct gives rises to actionable claims in the High Court by any person affected.
It is interesting to note that earlier this year Mr Lansley accepted that the current position on competition law was uncertain. He told the Health Select Committee.
“If you’re trying to establish with certainty what the boundary of the application of competition law is, then it’s a matter of debate and it will be something that will only be determined over time as there are cases brought before the courts,”
Our legal advice makes clear that the position on competition law has not yet been decided definitively. The Department of Health, on the other hand, in a response to Ms Hayne’s advice, seems to suggest competition law does not currently apply. What Ms Hayne’s advice says is that it is likely that competition law does currently apply but that the Bill reinforces that conclusion and makes it even more likely that competition law applies. The important point is that the Government have suggested that they can limit the impact of competition law. They can’t and they have not properly considered what the potential implications of competition law applying are.
We do not claim that procurement law does not currently apply. It does but the truth is that following the Bill it will apply to the new consortia, who may be ill-equipped to deal with the complexities of the law, as highlighted in our legal advice. This point is not addressed by Mr Lansley.