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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Arsène Wenger: how can an intelligent manager preside over such a hollowed-out team?

The Arsenal manager faces a frustrating legacy.

Sport is obviously not all about winning, but it is about justified hope. That ­distinction has provided, until recently, a serious defence of Arsène Wenger’s Act II – the losing part. Arsenal haven’t won anything big for 13 years. But they have been close enough (and this is a personal view) to sustain the experience of investing emotionally in the story. Hope turning to disappointment is fine. It’s when the hope goes, that’s the problem.

Defeat takes many forms. In both 2010 and 2011, Arsenal lost over two legs to Barcelona in the Champions League. Yet these were rich and rewarding sporting experiences. In the two London fixtures of those ties, Arsenal drew 2-2 and won 2-1 against the most dazzling team in the world. Those nights reinvigorated my pride in sport. The Emirates Stadium had the best show in town. Defeat, when it arrived in Barcelona, was softened by gratitude. We’d been entertained, more than entertained.

Arsenal’s 5-1 surrender to Bayern Munich on 15 February was very different. In this capitulation by instalments, the fascination was macabre rather than dramatic. Having long given up on discerning signs of life, we began the post-mortem mid-match. As we pored over the entrails, the curiosity lay in the extent of the malady that had brought down the body. The same question, over and over: how could such an intelligent, deep-thinking manager preside over a hollowed-out team? How could failings so obvious to outsiders, the absence of steel and resilience, evade the judgement of the boss?

There is a saying in rugby union that forwards (the hard men) determine who wins, and the backs (the glamour boys) decide by how much. Here is a footballing equivalent: midfielders define matches, attacking players adorn them and defenders get the blame. Yet Arsenal’s players as good as vacated the midfield. It is hard to judge how well Bayern’s playmakers performed because they were operating in a vacuum; it looked like a morale-boosting training-ground drill, free from the annoying presence of opponents.

I have always been suspicious of the ­default English critique which posits that mentally fragile teams can be turned around by licensed on-field violence – a good kicking, basically. Sporting “character” takes many forms; physical assertiveness is only one dimension.

Still, it remains baffling, Wenger’s blind spot. He indulges artistry, especially the mercurial Mesut Özil, beyond the point where it serves the player. Yet he won’t protect the magicians by surrounding them with effective but down-to-earth talents. It has become a diet of collapsing soufflés.

What held back Wenger from buying the linchpin midfielder he has lacked for many years? Money is only part of the explanation. All added up, Arsenal do spend: their collective wage bill is the fourth-highest in the League. But Wenger has always been reluctant to lavish cash on a single star player, let alone a steely one. Rather two nice players than one great one.

The power of habit has become debilitating. Like a wealthy but conservative shopper who keeps going back to the same clothes shop, Wenger habituates the same strata of the transfer market. When he can’t get what he needs, he’s happy to come back home with something he’s already got, ­usually an elegant midfielder, tidy passer, gets bounced in big games, prone to going missing. Another button-down blue shirt for a drawer that is well stuffed.

It is almost universally accepted that, as a business, Arsenal are England’s leading club. Where their rivals rely on bailouts from oligarchs or highly leveraged debt, Arsenal took tough choices early and now appear financially secure – helped by their manager’s ability to engineer qualification for the Champions League every season while avoiding excessive transfer costs. Does that count for anything?

After the financial crisis, I had a revealing conversation with the owner of a private bank that had sailed through the turmoil. Being cautious and Swiss, he explained, he had always kept more capital reserves than the norm. As a result, the bank had made less money in boom years. “If I’d been a normal chief executive, I’d have been fired by the board,” he said. Instead, when the economic winds turned, he was much better placed than more bullish rivals. As a competitive strategy, his winning hand was only laid bare by the arrival of harder times.

In football, however, the crash never came. We all wrote that football’s insane spending couldn’t go on but the pace has only quickened. Even the Premier League’s bosses confessed to being surprised by the last extravagant round of television deals – the cash that eventually flows into the hands of managers and then the pockets of players and their agents.

By refusing to splash out on the players he needed, whatever the cost, Wenger was hedged for a downturn that never arrived.

What an irony it would be if football’s bust comes after he has departed. Imagine the scenario. The oligarchs move on, finding fresh ways of achieving fame, respectability and the protection achieved by entering the English establishment. The clubs loaded with debt are forced to cut their spending. Arsenal, benefiting from their solid business model, sail into an outright lead, mopping up star talent and trophies all round.

It’s often said that Wenger – early to invest in data analytics and worldwide scouts; a pioneer of player fitness and lifestyle – was overtaken by imitators. There is a second dimension to the question of time and circumstance. He helped to create and build Arsenal’s off-field robustness, even though football’s crazy economics haven’t yet proved its underlying value.

If the wind turns, Arsène Wenger may face a frustrating legacy: yesterday’s man and yet twice ahead of his time. 

Ed Smith is a journalist and author, most recently of Luck. He is a former professional cricketer and played for both Middlesex and England.

This article first appeared in the 24 February 2017 issue of the New Statesman, The world after Brexit