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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The House of Lords must give EU citizens the right to remain

The government has used more than 3m UK residents as pawns. But the Lords could put a stop to it. 

Theresa May, David Davies and Boris Johnson like playing games. They are well versed in moving around a board, measuring their opponents and using pawns to lure them in.

It is a great relief, then, that the House of Lords are expected to put an end to the game the government is so desperate to play, and stop it from using people as pieces in a negotiation. 

It is my hope the Lords will do this by tabling an amendment to unilaterally secure the rights of EU nationals living in the UK, forcing the House of Commons to think once again.

It will be a welcome move by the Lords, with the country once again relying on an extra level of scrutiny to make sure the government's reckless actions do not risk ruining the lives of people who have lived here for decades.

And if the Lords do so, it will be to support the will of the people: an ICM poll after the referendum found some 84 per cent of British people support letting EU migrants stay, including 77 per cent of Leave voters. And a more recent Opinium poll found that only five per cent of Britons think EU nationals currently living in the UK should be asked to leave.

But those who lead us into the biggest negotiations of our time have said they simply cannot guarantee the rights of more than 3m EU citizens living in the UK until the rights of the 1.2m British citizens in the EU are reciprocated.

Constituents tell me they fear a situation where the government sits contemplating the different ways it can implement its policy of mass deportations.

Indeed, millions of people who are active in our communities and play a vital role in the economy are now worried about exactly that. My own constituents - and those of my colleagues in Westminster - are scared their lives will be torn apart if the government is not given a reciprocal gesture of goodwill.

Migrants make up 10.9 per cent of the workforce. These are people who have added to the sciences, to innovation, to the NHS and social care. These are people, not collateral.

Not only immoral, this approach seems fundamentally flawed. Would it not, as our Prime Minister said, be a good thing to approach the negotiations as friends with our European neighbours? Would it, therefore, not be the greatest gesture of friendship to afford EU citizens their right to reside in the UK at the soonest possible opportunity?

Already a leaked document has indicated the government’s approach making it difficult for EU nationals in the UK to acquire permanent residence is likely to mean British nationals living on the continent can expect a backlash of their own.

So, as the government prepares to quash any amendments proposed by the Lords to its bill, the onus will shift onto MPs on all sides of the house to accept this crucial amendment. 

Before the next vote Democratic Unionist Party and Conservative politicians must all ask themselves, are they happy to use people as “negotiating capital”?

Catherine West is the Labour MP for Hornsey and Wood Green.