Legislation for and by the NHS. Good idea, poor timing

When the PM made her announcement about extra finance for the NHS in June, she also mentioned that if the NHS needed and could agree on legislation to enable its work to become more patient focussed, then that was a possibility.

Over the past few months there has been a growing discussion about what the NHS should try and achieve with this extra money. Reaction has included some in the NHS seeming to argue that it should pledge nothing new. This is based on their belief that there is not enough new money to achieve anything new. It will be spent on the maintenance backlog and in trying to get to reach the waiting time targets of the past. The interesting thing about the folk that argue this way is that they pretend to argue it from a position of real politick – let’s face it times are hard and anyone who promises new things is a starry-eyed idealist.

In fact it is those that say we can do nothing new with this new money who are being unreal. The reality of politics (real politics) is that on budget day October 29th it is highly likely that the British people will be asked to pay more tax for the NHS and they will expect something in return for that money. Real politics demands that they get something in return. Pretend politics believes that Simon Stevens, having spent two years of his life arguing for more money, has any chance at all of turning round and saying thanks a lot – you get nothing more in return. That’s pretendy politics.

Over the past few months whilst there has been some discussion and some organisational change about what might end up in the new contract with the people,  since the June announcement the prospect of new legislation has not been much in the public eye.

Just to return for a moment to where we were in June. The PM reiterated what was in her June 2017 manifesto. I still find this paragraph one of the most unusual pledges in this history of English health policy so have pleasure in repeating it.

“We will hold NHS England’s leaders to account for delivering their plan to improve patient care. If the current legislative landscape is either slowing implementation or preventing clear national or local accountability, we will consult and make the necessary legislative changes. This includes the NHS’s own internal market, which can fail to act in the interests of patients and create costly bureaucracy. So we will review the operation of the internal market and in time for the start of the 2018 financial year, we will make non –legislative changes to remove barriers to the integration of care.”

Conservative Manifesto 2017, p67

Just remember what party Manifestos are. I played a small role in developing the Labour Party Manifestos for the 1992 and 2005 elections. What you do when you write words in that document is very different from blogs, articles and pamphlets. When you write a manifesto you know you are writing something that – if you win the election – will stop being an idea and will become a part of the way in which our society is organised. When the paragraph quoted above was written the people putting it together, and indeed nearly everyone involved in the election, believed that the Conservatives were going to win with a sufficient majority to put this into practice. That means when it talks of “consulting and making legislative changes” there is a belief that legislation will be framed, pass through Parliament and become law. It’s not an idle thought.

And the policy the Conservatives were going to pass into law in 2017 and that the PM reiterated in June 2018, was the idea that they would do away with the purchaser/provider split. The 2017 manifesto pledged, not only to reverse the Lansley reforms, but to reverse the whole NHS structure of the previous 25 years.

In June 2017 the Conservatives did not win a sufficient majority to safely enact the legislation. But in June 2018 the PM proposed this idea to the NHS and reminded them that it was one that could become legislation if they – the NHS – wanted it.

One of the political ironies of this position is that it has long been the policy of the far left of the Labour Party. Putting markets into public sector goods and services, even if they don’t involve the private sector, is something that the far left don’t like. They have never been able to get the official Labour party to support that policy – and even the 2017 Labour manifesto – written by people of that far left – did not commit to this position.

This positioned the 2017 Conservative manifesto’s health policy far to the left of Jeremy Corbyn’s Labour manifesto. Irony doesn’t begin to describe it.

Come 2018 the politics of this becomes very interesting.

What would happen if the NHS came to Parliament with a short Bill which reiterated the above position? The only way an organisation outside Parliament can get legislation through Parliament is either through a private member’s Bill or through government sponsored legislation and the Government on its own does not have a majority to get legislation through…

But if the leadership of the NHS said this is what we need to bring about the improvements for patients outlined in our new contract with the people, it would have a lot of moral weight.

One could imagine private conversations with both whips offices about the nature of what the NHS needed – with opportunities for them to help shape any legislation so that it had cross party support. This Bill couldn’t be the size of a Lansley reorganisation (no bad thing) but could for example bring NHSI and NHSE together. It could clarify how local CCGs could work in partnership with providers around STPs and give them some limited legislative power.  It might just work.

But the problem is that this is happening in the autumn of 2018. Parliament has just returned and because it is dominated by Brexit, the relationship between the parties whips offices and the individual power of MPs to pass legislation is a very odd one. The idea of coherent support for anything from inside one major party – let alone across two of them – just doesn’t look feasible. It looks to me that the House of Commons of the autumn of 2018 is probably the least likely of any Parliament for 50 years to get a consensus for legislation on anything.

So the idea is a good one. It would have helped the NHS move forward, but the timing is awful.

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