Last chance to save the NHS in the House of Lords

A new raft of privatising measures will be voted on tomorrow.

Tomorrow there will be a debate and vote critical to the future of the NHS in England. Labour Lord Philip Hunt has laid a fatal motion to try and kill the "Procurement, Patient Choice and Competition Regulations" that the government have issued under the Health and Social Care Act. The Regulations open up England’s NHS to competition on an unprecedented scale by putting the market at the heart of commissioning decisions.

When the government first released the regulations in February I wrote an article with Dr Lucy Reynolds explaining that they betrayed the political promises and assurances given when the government were struggling to get their Health and Social Care Bill passed. Public feeling against the regulations exploded. 38 Degrees launched a petition against them which now has over 360,000 signatures. This pressure, combined with strong criticism from the medical profession, Labour and even Liberal Democrats, forced the Department of Health to rewrite the regulations.

Unfortunately the revised regulations are little improved. The word "integration" was inserted a few times to address peoples’ fears that competition would increase fragmentation of services. However Regulation 5 dictates that a contract must be advertised for competition unless commissioners are satisfied that there is only one provider capable of providing the service. This is a narrow legal test vulnerable to challenge. Private companies could contest that they are "capable" of providing a service and entitled to bid for that business. Knowing this, commissioners are likely to cautiously avoid the potential for legal challenge by opening services to competition.

The regulations still break the promises given when the government were fighting to push the Health and Social Care Bill through parliament. Andrew Lansley promised prospective Clinical Commissioning Groups that they would decide "when and how competition should be used". Earl Howe promised that commissioners would have a "full range of options" and would not be under any legal obligation to "create new markets, particularly where competition would not be effective in driving high standards and value for patients".

The truth is that it will not be up to commissioners to decide if, when and how to use competition. Far from these reforms freeing GPs to do what’s best for patients, these Regulations bind them to an expensive bureaucratic market system of evaluating commercial tenders as advised by competition lawyers. David Lock QC, commissioned by 38 Degrees to provide a legal opinion on both sets of regulations, said that anyone who insists that they allow commissioners discretion to decide when and how to use competition is parroting "disingenuous nonsense".

"Disingenuous" is an apt word for the politicians here. Liberal Democrat Lord Clement-Jones (who originally opposed the regulations and now supports the new ones) told me that the regulations simply apply EU procurement law and that commissioners are being given the maximum discretion possible within that framework. My contention is that the framework is a straitjacket and, as the politicians always intended EU procurement law to apply, it was thus utterly wrong to pretend that commissioners would have more freedom than this law allows. It makes those promises cynical, misleading and deceptive from the outset, as the necessary caveats would have rendered them meaningless.

The rationale for the reforms is a belief that market competition will drive up standards of care. But as others have pointed out, this faith in the market, like all faiths, lacks evidence. Commercial interests introduce perverse incentives that detract from the focus on duty of care and trust between doctor and patient. This isn’t evidence-based policy-making. This is an ideologically driven experiment being legally enforced before being tried and tested.

If we discover, as many fearfully predict, that these regulations serve to erode and undermine current NHS providers, leading to increasing privatization, rising costs and a reduction in quality of care, then how will we change course? Attempting to undo these reforms is likely to be extremely expensive and politically difficult, giving rise to claims from companies who could sue for compensation. There is a puzzling prioritisation of process here, rather than outcomes. The only guaranteed beneficiaries of this approach are those who will profit from winning new business.

Politicians may say that their hands are tied by EU laws, but make no mistake, this is a choice. Scotland and Wales have made different choices and are organizing their services differently, keeping the market out. There is something profoundly undemocratic about the English case. The NHS reforms were not outlined in the 2010 election, they didn’t appear in any party manifesto and they didn’t even feature in the Coalition agreement. Nobody voted for these changes. The Health and Social Care Act was extremely controversial, pushed through after many political promises were made and these Regulations prove that those promises were highly misleading.

Despairingly for our democracy, all three main parties have played their role in getting us to this point. The last New Labour government laid the path for the current regulations with their Principles and Rules of Cooperation and Competition, though the coalition now go further by turning suggestions into requirements. For all the talk of patient choice, people have been denied the choice that really matters - the choice of a citizen to collectively determine the provision of their national health service. Politicians have pushed through monumental reforms covertly, not by winning the argument openly, honestly and democratically. Peers will have the chance to vote in the Lords chamber tomorrow and the public are telling them how they feel. Will the politicians rise above party political point-scoring and have the big honest debate that all who rely on the NHS deserve?

NHS activists outside Parliament. Photo: Getty Images.

Nicola Cutcher is a freelance journalist and researcher.

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Labour tensions boil over at fractious MPs' meeting

Corbyn supporters and critics clash over fiscal charter U-turn and new group Momentum. 

"A total fucking shambles". That was the verdict of the usually emollient Ben Bradshaw as he left tonight's Parliamentary Labour Party meeting. His words were echoed by MPs from all wings of the party. "I've never seen anything like it," one shadow minister told me. In commitee room 14 of the House of Commons, tensions within the party - over the U-turn on George Osborne's fiscal charter and new Corbynite group Momentum - erupted. 

After a short speech by Jeremy Corbyn, shadow chancellor John McDonnell sought to explain his decision to oppose Osborne's fiscal charter (having supported it just two weeks ago). He cited the change in global economic conditions and the refusal to allow Labour to table an amendment. McDonnell also vowed to assist colleagues in Scotland in challenging the SNP anti-austerity claims. But MPs were left unimpressed. "I don't think I've ever heard a weaker round of applause at the PLP than the one John McDonnell just got," one told me. MPs believe that McDonnell's U-turn was due to his failure to realise that the fiscal charter mandated an absolute budget surplus (leaving no room to borrow to invest), rather than merely a current budget surplus. "A huge joke" was how a furious John Mann described it. He and others were outraged by the lack of consultation over the move. "At 1:45pm he [McDonnell] said he was considering our position and would consult with the PLP and the shadow cabinet," one MP told me. "Then he announces it before 6pm PLP and tomorow's shadow cabinet." 

When former shadow cabinet minister Mary Creagh asked Corbyn about the new group Momentum, which some fear could be used as a vehicle to deselect critical MPs (receiving what was described as a weak response), Richard Burgon, one of the body's directors, offered a lengthy defence and was, one MP said, "just humiliated". He added: "It looked at one point like they weren't even going to let him finish. As the fractious exchanges were overheard by journalists outside, Emily Thornberry appealed to colleagues to stop texting hacks and keep their voices down (within earshot of all). 

After a calmer conference than most expected, tonight's meeting was evidence of how great the tensions within Labour remain. Veteran MPs described it as the worst PLP gathering for 30 years. The fear for all MPs is that they have the potential to get even worse. 

George Eaton is political editor of the New Statesman.