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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Theresa May "indifferent" towards Northern Ireland, says Alliance leader Naomi Long

The non-sectarian leader questioned whether the prime minister and James Brokenshire have the “sensitivity and neutrality” required to resolve the impasse at Stormont.

Theresa May’s decision to call an early election reflects her “indifference” towards the Northern Ireland peace process, according to Alliance Party leader Naomi Long, who has accused both the prime minister and her Northern Ireland secretary James Brokenshire of lacking the “sensitivity and neutrality” required to resolve the political impasse at Stormont.

In a wide-ranging interview with the New Statesman, Long – who is running to regain her former Belfast East seat from the DUP for her non-sectarian party in June – accused the Conservatives of “double messaging” over its commitment to Northern Ireland’s fragile devolution settlement. The future of power-sharing province remains in doubt as parties gear up for the province’s fourth election campaign in twelve months.

Asked whether she believed the prime minister – who has been roundly criticised at Stormont for her decision to go to the country early – truly cared about Northern Ireland, Long’s assessment was blunt. “We have had no sense at any time, even when she was home secretary, that she has any sensitivity towards the Northern Ireland process or any interest in engaging with it at all... It speaks volumes that, when she did her initial tour when she was prime minister, Northern Ireland was fairly low down on her list.”

The timing of the snap election has forced Brokenshire to extend the deadline for talks for a fourth time – until the end of June – which Long said was proof “Northern Ireland and its problems were not even considered” in the prime minister’s calculations. “I think that’s increasingly a trend we’ve seen with this government,” she said, arguing May’s narrow focus on Brexit and pursuing electoral gains in England had made progress “essentially almost impossible”.

“They really lack sensitivity – and appear to be tone deaf to the needs of Scotland and Northern Ireland,” she said. “They are increasingly driven by an English agenda in terms of what they want to do. That makes it very challenging for those of us who are trying to restore devolution, which is arguably in the worst position it’s been in [since the Assembly was suspended for four years] in 2003.”

The decisive three weeks of post-election talks will now take place in the weeks running up to Northern Ireland’s loyalist parade season in July, which Long said was “indicative of [May’s] indifference” and would make compromise “almost too big an ask for anyone”. “The gaps between parties are relatively small but the depth of mistrust is significant. If we have a very fractious election, then obviously that timing’s a major concern,” she said. “Those three weeks will be very intense for us all. But I never say never.”

But in a further sign that trust in Brokenshire’s ability to mediate a settlement among the Northern Irish parties is deteriorating, she added: “Unless we get devolution over the line by that deadline, I don’t think it can be credibly further extended without hitting James Brokenshire’s credibility. If you continue to draw lines in the sand and let people just walk over them then that credibility doesn’t really exist.”

The secretary of state, she said, “needs to think very carefully about what his next steps are going to be”, and suggested appointing an independent mediator could provide a solution to the current impasse given the criticism of Brokenshire’s handling of Troubles legacy issues and perceived partisan closeness to the DUP. “We’re in the bizarre situation where we meet a secretary of state who says he and his party are completely committed to devolution when they ran a campaign, in which he participated, with the slogan ‘Peace Process? Fleece Process!’ We’re getting double messages from the Conservatives on just how committed to devolution they actually are.”

Long, who this week refused to enter into an anti-Brexit electoral pact with Sinn Fein and the SDLP, also criticised the government’s push for a hard Brexit – a decision which she said had been taken with little heed for the potentially disastrous impact on Northern Ireland - and said the collapse of power-sharing at Stormont was ultimately a direct consequence of the destabilisation brought about by Brexit.

 Arguing that anything other than retaining current border arrangements and a special status for the province within the EU would “rewind the clock” to the days before the Good Friday agreement, she said: “Without a soft Brexit, our future becomes increasingly precarious and divided. You need as Prime Minister, if you’re going to be truly concerned about the whole of the UK, to acknowledge and reflect that both in terms of tone and policy. I don’t think we’ve seen that yet from Theresa May.”

She added that the government had no answers to the “really tough questions” on Ireland’s post-Brexit border. “This imaginary vision of a seamless, frictionless border where nobody is aware that it exists...for now that seems to me pie in the sky.”

However, despite Long attacking the government of lacking the “sensitivity and neutrality” to handle the situation in Northern Ireland effectively, she added that Labour under Jeremy Corbyn had similarly failed to inspire confidence.

“Corbyn has no more sensitivity to what’s going on in Northern Ireland at the moment than Theresa May,” she said, adding that his links to Sinn Fein and alleged support for IRA violence had made him “unpalatable” to much of the Northern Irish public. “He is trying to repackage that as him being in some sort of advance guard for the peace process, but I don’t think that’s the position from which he and John McDonnell were coming – and Northern Irish people know that was the case.” 

Patrick Maguire writes about politics and is the 2016 winner of the Anthony Howard Award.

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