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.

Photo: Getty Images
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No, IDS, welfare isn't a path to wealth. Quite the opposite, in fact

Far from being a lifestyle choice, welfare is all too often a struggle for survival.

Iain Duncan Smith really is the gift that keeps on giving. You get one bile-filled giftbag of small-minded, hypocritical nastiness and, just when you think it has no more pain to inflict, off comes another ghastly layer of wrapping paper and out oozes some more. He is a game of Pass the Parcel for people who hate humanity.
For reasons beyond current understanding, the Conservative party not only let him have his own department but set him loose on a stage at their conference, despite the fact that there was both a microphone and an audience and that people might hear and report on what he was going to say. It’s almost like they don’t care that the man in charge of the benefits system displays a fundamental - and, dare I say, deliberate - misunderstanding of what that system is for.
IDS took to the stage to tell the disabled people of Britain - or as he likes to think of us, the not “normal” people of Britain -  “We won’t lift you out of poverty by simply transferring taxpayers’ money to you. With our help, you’ll work your way out of poverty.” It really is fascinating that he was allowed to make such an important speech on Opposite Day.
Iain Duncan Smith is a man possessed by the concept of work. That’s why he put in so many hours and Universal Credit was such a roaring success. Work, when available and suitable and accessible, is a wonderful thing, but for those unable to access it, the welfare system is a crucial safety net that keeps them from becoming totally impoverished.
Benefits absolutely should be the route out of poverty. They are the essential buffer between people and penury. Iain Duncan Smith speaks as though there is a weekly rollover on them, building and building until claimants can skip into the kind of mansion he lives in. They are not that. They are a small stipend to keep body and soul together.
Benefits shouldn’t be a route to wealth and DWP cuts have ensured that, but the notion that we should leave people in poverty astounds me. The people who rely on benefits don’t see it as a quick buck, an easy income. We cannot be the kind of society who is content to leave people destitute because they are unable to work, through long-term illness or short-term job-seeking. Without benefits, people are literally starving. People don’t go to food banks because Waitrose are out of asparagus. They go because the government has snipped away at their benefits until they have become too poor to feed themselves.
The utter hypocrisy of telling disabled people to work themselves out of poverty while cutting Access to Work is so audacious as to be almost impressive. IDS suggests that suitable jobs for disabled workers are constantly popping out of the ground like daisies, despite the fact that his own government closed 36 Remploy factories. If he wants people to work their way out of poverty, he has make it very easy to find that work.
His speech was riddled with odious little snippets digging at those who rely on his department. No one is “simply transferring taxpayers’ money” to claimants, as though every Friday he sits down with his card reader to do some online banking, sneaking into people’s accounts and spiriting their cash away to the scrounging masses. Anyone who has come within ten feet of claiming benefits knows it is far from a simple process.
He is incredulous that if a doctor says you are too sick to work, you get signed off work, as though doctors are untrained apes that somehow gained access to a pen. This is only the latest absurd episode in DWP’s ongoing deep mistrust of the medical profession, whose knowledge of their own patients is often ignored in favour of a brief assessment by an outside agency. IDS implies it is yes-no question that GPs ask; you’re either well enough to work or signed off indefinitely to leech from the state. This is simply not true. GPs can recommend their patients for differing approaches for remaining in work, be it a phased return or adapted circumstances and they do tend to have the advantage over the DWP’s agency of having actually met their patient before.
I have read enough stories of the callous ineptitude of sanctions and cuts starving the people we are meant to be protecting. A robust welfare system is the sign of a society that cares for those in need. We need to provide accessible, suitable jobs for those who can work and accessible, suitable benefits for those who can’t. That truly would be a gift that keeps giving.