This is taken from Jos Bell’s blog on the SHA London website.

The Clive Efford Bill is a Private Members Bill. It has limited reach – but that having been said, it is small and mighty, for it tackles some of the most contentious areas of the Health & Social Care Bill.

Private members bills are essentially a lottery. Members chuck in a topic and then a proportion are chosen – not by topic, but by names being drawn like rabbits out of hats. Thus they are not a planned part of the legislatory calendar.

Some are seeing the Efford Bill as a means of subterfuge to bring the private sector in even further – it has even been accused of being a Trojan horse. Although it is not entirely perfectly formed, ( and let’s face it, Bills and Acts are not exactly written in the most accessible way!) the Bill really is more sympathetic to the Bevan ideal than these observers would indicate.

EU Competition Law is not naturally something which is discussed over the water cooler and yet many are professing to be instant experts in the field. Therein lies a problem. Indeed I put a couple of my own concerns forward and was sign-posted to key points in this independently produced document – which has clarified what is admittedly a complex scenario

Reference to the excellent and factually accurate Parliamentary Library document, which is produced independently of any party political influence or interference, demonstrates that these worries are in conflict with the intention of the Bill

There seem to be 3 primary concerns –

1. Duty

The matter of Duty is causing some crossed wires. At first glance the Bill appears only to offer the SoS a means to promote the NHS – something which was lost after the H&SCA was passed. However – as is pointed pointed out in the library document, the H&SCA did actually retain a clause where the SoS has a duty to provide. So this does not need to be re-iterated in the Efford Bill to ensure that the Sos has full duty restored. That is duly achieved with the re-introduction of ‘promote’.

Section 1 of the H&SC Act 2012 substituted section 1 of the NHS Act 2006, relating to the Secretary of State’s duty to promote the health service. The original duty under the NHS Act 2006 was for the Secretary of State to “promote a comprehensive health service” and “to provide or secure the provision of services in accordance with this Act.” The current duty, inserted by the H&SC Act 2012, no longer refers to a duty to provide, now stating that the duty is to “promote a comprehensive health service” and “to secure that services are provided in accordance with this Act; the 2012 version of the duty is set out below:

During the passage of the Health and Social Care Bill there was some concern about the removal of the word “provide” from the Secretary of State’s duties. As a result, the Government agreed to support amendments proposed by the House of Lords Constitution Committee during the final stages of the Health and Social Care Bill, to insert a new paragraph (para 1(3) above) clarifying that the Secretary of State retains Ministerial accountability for the NHS.

The wider debate about the decision to remove the word “provide” from section 1 of the 2006 Act can be found in pages 8-10 of the Library Research Paper on the Health and Social Care Bill (RP 11/63, 30 August 2011).

Clause 1 of the Bill would substitute the Secretary of State’s current duty under section 1 of the NHS Act 2006 (as amended by section 1 of the H&SC Act 2012) with a new duty “to promote a comprehensive health service based on social solidarity”. Clause 1(2) of the Bill would provide two new duties: that the Secretary of State must, for the purpose of continuing the promotion in England of a comprehensive health service:

“ensure that the health service is a public service which delivers services of general economic interest and operates on the basis of social solidarity” (clause 1(2)(b)); and  “ensure that arrangements between commissioners and providers of health services require effective co-operation between different providers under this Act and between providers of health services and providers of community care services” (clause 1(2)(c)).

2. Competition

The references to competition are intended to work 3 ways :

Clauses relating to commissioning put the emphasis on patient interest and of collaboration and co-operation. Likewise the private cap must operate only in terms of the benefit of NHS patients. Come the day of a full blown bill to overturn the H&SCA I am told that this would be addressed in more detail.

Clause 10 of the Bill would repeal provisions under the H&SC Act 2012 that gave Monitor a role in referring mergers to the competition regulators. Clauses 12 and 13 specify that the Secretary of State would have the discretion to approve significant mergers between NHS organisations

This addresses the chaos that has resulted from the local Trading Standards blocking what would have been a useful and productive merger of two Dorset hospitals under the anti-competitiveness ruling.

The SoS also has the power of veto to discourage/prevent CCGs from handing over increasingly large chunks of services to the private sector. The NHS as preferred provider would operate in such a way as to leave those CCGs who pursue models outside of an NHS contract to be subject to EU competition law, wasting large elements of their budget on unnecessary tendering and legal defence of their decisions.

Most importantly, the re-empowered SoS cannot intervene to encourage private contracts, which seems to be a main concern. Once again, with a larger Bill a wider range of disincentives and penalties could be introduced.

‘Reference to ‘public service which delivers services of general economic interest” rather than ‘Non-economic Social Service of General Interest’ – matters not in this context because of the reference to social solidarity in clause 1(2)(b) is, in conjunction with other measures in the Bill, the mechanism for exempting the NHS from EU competition law and will override the category of general economic interest. – see below*

Hooking the NHS under the banner of social solidarity, overrides what seems to be the most burning issue of a perceived failure to take out the economic aspect of the service delivery. The EU regards social solidarity as being near-sacrosanct and this piece from False Economy usefully demonstrates the matter and shows the significance of the Efford Bill in re-instating that premise.

This impacts on all areas of the function of the Bill.

3. TTIP

Clause 11 would specify that the NHS is exempt from the Competition Act 1998, to try and prevent EU competition law being applied to the NHS.

The burning issue of TTIP is unsurprisingly causing confusion. The key things here are :

The final 2 clauses in the Bill firmly place UK sovereignty at the core where the NHS is concerned. This is important because the EU Parliament has agreed that this is something which is recognised with respect to key areas of national function.

It is also important to note – as is detailed in the blog piece I wrote following our TTIP event in July , that the EU Commissioners, following lobbying by Andy Burnham when he visited Brussels, have recognised that the NHS is a special case and worthy of protection. If TTIP does come to the vote by EU members – and present there is some doubt about its survival , then the status of the NHS will be part of the proposals.

Thus both sovereignty and EU recognition should provide a dovetail of protection.

This, from a point of Opposition is all we can do.

As well as having the strong backing of the Labour Front Bench, the Royal College of Nursing and the major trade unions representing NHS staff2, the Bill also has the qualified support of the British Medical Association (BMA). The BMA and the organisation representing NHS foundation trusts and NHS trusts (The Foundation Trust Network) have particular concerns that the Bill will undermine the operational independence of the NHS.3 . Caroline Lucas MP, has also stated her intention to support the Bill on the premise that it is a good start to overturning Sections 1 & 3 of the H&SCA.

Even if this is not the Bill of your Dreams, it is most certainly not a Trojan Horse. A full blown Repeal Bill is impossible unless the right party is leading the government reins. The main thing to remember, is that with only 6 months to go in the #battlefortheNHS we need to keep our eye on the ball of election victory. Surely the last thing we want is a Tory/UKIP coalition….

Post script after the event……

Having returned and recovered from only 2 hours sleep during the course of the 24 hr vigil and debates – and huge congratulations to those who managed to stay awake all night with only the odd rug to keep out the chill and the damp – I can confirm the following :

  • An overnight Vigil under the floodlit walls of Westminster Abbey is an extraordinary and very special experience
  • The evening had a wonderful start with a candlelit rally attended by a number of MPs dedicated to a healthy long term future for our NHS. Newly installed MP and long term NHS worker, Liz McInnes, was joined by Bill Driver and sponsors Clive Efford, Andy Slaughter & Grahame Morris. Ian Lavery, Huw Irranca-Davis and David Anderson also spoke. Dr Onkar Sahota, Diana Johnson and Virendra Sharma joined in along with representatives from various unions under the banner of event organiser TULO, and other like minded organisations, including KONP and 50:50. Louise Irvine spoke for the NHA/SLHC.
  • The event also dovetailed with the launch of the People’s Vote for the NHS. The following morning two familiar figures popped by – Liz Kendall took in the Vigil on her morning run and Andy Burnham made it over before 8 am en route from taking Question Time by the scruff of it’s sorry neck in Birmingham the evening before.
  • Once inside the Chamber it was clear that the Tories and Lib Dems would be no shows. The task for defending the Coalition’s increasingly atrocious NHS record was left in the incapable hands of Doc Dan Poulter, Sir Tony Baldry and David Winnick ( a useful place to take a refreshing snooze). Colonel Bob Stewart and Angie Bray were also in attendance – the first to say that it was the private sector which had saved his life following army injuries, the second to erroneously trot out the nonsense that Ealing and Charing X Hospital A&Es are to be retained. Given the evidence, she should look to her majority…as Andy Slaughter angrily reminded her, in a rather entertaining cross-Chamber shouting match! Philip Davies was a derisory addition. The only two Lib Dems present, in the shape of Julian Huppert and John Pugh (who voted with Labour) only served to highlight the wide chasm within what looks to be a fast disappearing party.
  • Clive Efford presented the Bill in a memorable speech full of passion and integrity – explaining the status of GPs being a reason why the contentious economic interest criteria had to be retained, but reiterating the overall protection afforded by the social solidarity umbrella,
  • The most extraordinary turn was that of latterday Tory-right-right Mark Reckless, installed for UKIP just minutes before, trying and failing to sit next to Efford in a blatant attempt to hijack the TV screen. Efford was rapidly rescued by a ‘cordon sanitaire’ of friendly fire courtesy of genuine Bill supporters. Reckless then almost brought the House to a standstill by declaring that the Parties opposite ( namely the near-absent Coalition) had done dastardly things to the NHS and he was all for supporting the Bill and had even signed 5 Rochester NHS pledges ( which he cannot surely have read) and like Clive Efford, intoned the Levellers! Stunned faces surrounded him – and little wonder, for the truth of UKIP’s underbelly is all about the big business sell-off. Carswell was nowhere in earshot but poised to vote with the Opposition. Clearly they have decided to say anything at all to get elected – or perhaps he was just suffering from the same level of sleep deprivation as the Vigillers.
  • We then had the joy of seeing Dennis Beast of Bolsover Skinner leap to his feet and in surely one of the most perfect put downs in his illustrious oratory, crowned Reckless the King of the Policy Swingers. He also nailed the immigration argument in one.
  • The government drones filibustered the hours away, until even Eleanor Laing felt she had to chastise – but with Andy Burnham in fine form and numerous determined interventions from the Opposition benches, the debate contrasted Labour heart and soul with cynical Coalition couldn’t-careless-ness.
  • To raucous cheers from the Strangers Gallery, echoing the Opposition benches, the final vote saw a resounding Opposition win at 241-18

Afterwards there was a Rally held by the Save Lewisham Hospital Campaign where there was a bit of a set-to between a somewhat weary Clive Efford and an irascible Peter Roderick – the latter having just snarled down the back of my neck in the Strangers during the vote, when I explained that I had been told that the Parliamentary Library holds the source of the rationale that a responsibility ‘to provide’ had been retained within the Health & Social Care Act, while duty to promote had been expunged and thus needed to be revived in the Bill. He didn’t seem to like that very much, which was a bit of a shame. Some speakers also seemed to be intent on nothing less than a 100% nationalised NHS – which has never been the case and would seem to be a very tall financial and legislative order! Clearly a decent conversation needs to be had .

Looking at a couple of obvious factors, the Efford Bill is very unlikely to become legislation –

  • Due to timeline to pre-election purdah in March
  • Because the government would play the numbers game if it ever came to it

However there is still a very good opportunity to hold the government to account in their duty to bring together a Bill Committee. Look out for a petition somewhere near you….

In the meantime you can also contribute to the consultation of the Pollock Re-instatement Bill – which both shares aspects of the Efford Bill and contains rather a lot of emphasis on what would be another giant top down re-structuring. Surely there is another way?

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One Comment

  1. Good article, and fair play to the author for taking on the arguments rather than just dismissing those who raise questions as ‘stupid’ as Efford apparantly did at the Commons meeting!
    Though I think on balance I’d go with the views of the barrister, Peter Roderick, on what the Bill does, as set out (with a range of views) here https://www.opendemocracy.net/ournhs/caroline-molloy/efford%27s-save-nhs-bill-does-it-do-what-it-says-on-tin.
    Which is not to say “don’t back the bill” but rather, let’s not be afraid to ask tough questions about what the NHS really needs – it is a pity Efford hasn’t always been as forthcoming with responses to campaigners, as might be hoped.
    On the last point about reorganisation, two comments.
    Firstly it is really genuinely baffling to me that if the Efford Bill sets out to remove ‘the most noxious elements of HSCA’ why it does not remove the compulsion to become a Foundation Trust – which is a big part of what enmeshes the NHS in competition law, which most non FTs simply can’t achieve, leading to privatisation or merger as the only alternatives. Scrapping this requirement would actually be LESS re-organisation, and a very simple strike out of a short bit of HSCA – so why isn’t Efford biting this bullet? Have they got some other solution up their sleeves (Frances Maude style ex-NHS ‘mutuals’, anyone?).
    More substantively on reorgansiation, EVERYONE tells us the NHS is going to have to look radically different in a few years, whatever happens. The NHS Chief Executive, Chair, all the political parties, all commentators all tell us how different it will look – how different it has to look to survive. The question is what this radical change will look like. The NHS Chief Executive’s vision of personal budgets (aka thatcherite vouchers) and privatised Kaiser style Accountable Care Organisations, as laid out in his 5 year forward view? The Kings Fund vision (seemingly embraced by both Labour and Tories) of health somehow ‘integrated’ with means tested, largely privatised social care? The right wing think tanks vision of unabashed charging, starting with drunks and rapidly moving out from there? All visions resting on a mass transfer of resources out of hospitals, supposedly to provide ‘care in the community’?
    Or a set of policies – as per the NHS Reinstatement Bill that – for the first time in 40 years (apart from a brief hiatus 1997-2000) reverse the marketisation which has damaged the NHS, cost the taxpayer billions in ongoing year after year costs, just to open up potential profit streams for business?

What do you think?

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