Law differs greatly from a policy document. The passage of the next Health Reorganisation Bill will prove this.

The next few posts will be about the intentions contained in the White Paper and how, if the Government gets its way with the timetable, the legislation that follows will become law next year.

But today I want to step back and write a bit about the process that is happening at the moment. Turning the White Paper into a Bill. This sounds deceptively simple.

But it isn’t.

After all, isn’t a White Paper just is a set of policy words on paper that simply need to be turned into a Bill containing words on a different bit of paper? A straightforward translation from A to B?

I’ve been talking recently to a few policy people about the White Paper’s policy intentions and their translation into a Bill and have realised that this is one of those occasions where I know a bit more about a part of that process than most.

I am not being falsely modest when I say that there are many who know a lot more about health and social care policy than I do, and hordes of people that know a lot more about health and social care practice than me. But not many that have been in the Department of Health and Social Care, actively processing a very rough policy idea into something that can (and did) become an actual law.

And before that, when in opposition, I assisted shadow teams working through amendments for the Education Reform Act in 1988. So I know that words in a Bill can have very different meanings to words in a policy document.

My main point is that the bit of paper that, having passed through all its legislative stages, leaves Parliament to be signed by the Queen is a world away from that which leaves the Department of Health and Social Care and goes to the printer as a White Paper.

They both have words on paper. But that it where their similarity ends.

The most graphic example I can give for this is consequent on the last big Lansley reorganisation. Famously, the law abolished Primary Care Trusts (PCTs) and gave commissioning power to GP-led Clinical Commissioning Groups (CCGs). This had been clearly argued in the July 2010 White Paper, was there in the first draft of the Bill and, compared to almost everything else in that legislative process, stayed there throughout the tortuous passage of the Bill into an Act.

During the process from White Paper to Bill through the Commons, the pause in legislation, and then the Lords, there was a great deal of policy to discuss. But one constant was that GPs would lead the new CCGs and that, as part of that leadership, a lead GP would become the Accountable Officer (AO) for the spending of public money.

As the Bill neared the completion of its passage through Parliament, I had the good fortune to be involved with some GP groups who wanted to set up and run CCGs. We talked at length about what this new experience would mean for them and some were very enthusiastic about taking that role and creating new patient pathways.

At some stage in every session a GP would ask me “What exactly does an AO do that is different from what we are used to?” And whilst I might have tried to wrap it up in kinder words, my answer usually came down to, “The AO is the person who goes to prison if there is any fraud with public money. That is what accountability means”.

This was true but usually came as something of a shock in what had, up until then, been a discussion about policy. How did prison and fraud come into the discussion of improving patient pathways?

And this is where the difference between the words in a White Paper and an Act of Parliament becomes important.

In the long history of public policy no-one has gone to prison because of words in a White Paper.

In the history of law people have.

In a White Paper words represent things that we might (or might not) want to see happen.

The words on a Bill are, when they become an Act, law. They are intended to change people’s behaviour and have, as a back up to that intention, legal enforcement.

So at this moment, somewhere in London’s Victoria Street at the Department of Health and Social Care, some people in the section that writes legislation are writing words on paper that will not just advise people to do things but will make them do it.

Those of us who studied ‘A’ level British Constitution already know this, so where’s the problem? Surely this is common knowledge?

Intellectually – yes, but in practice this knowledge is not all that common.

The last time NHS legislative re-organisation was planned was 11 years ago (and to be honest it did not end well. Most people have spent the last 8 years trying to get round the Lansley laws).

The big problem faced by those whose job it is to turn the White Paper into law is that the nature of much of the policy in it contains some ambiguity. (In fact, it’s quite clever to write policy that contains ambiguity).

When you set a clear unambiguous policy direction, you necessarily make it clear who will lose from it. This creates strong opposition from those in the status quo who stand to will lose out.

So, ambiguity in policy can be clever.

Ambiguity of law, on the other hand, is a disaster.

The problem for those that draw up the words for a Bill is that the process of making law – from publishing the Bill through the commons and Lords to gaining Royal Assent – is public. There will be hundreds of people looking at each word and assessing how they would operate as a law. There will be people trying to change those words drawing out their implications.

Somewhere in the DHSC there are, at this moment, lawyers taking a brief from policymakers and asking. “Do you want this or that to be in the Bill?”

Some policymakers will say, “Can we have both?”

The lawyers will laugh and tell them,

“No, you must decide whether (for example) you want the Secretary of State to be in charge or not. If you do, the law looks like this. If you don’t, it looks like that.

If you tell us it has to be both I promise you that after we publish the Bill it will be torn apart in the legislative process.

So, make up your mind.“

In my next few posts, I will outline some of the problems that ambiguities in the White Paper will cause as the government tries to turn it into law.

The Queen’s Speech is on May 11. To keep to the Government timetable of implementation in 2022, the Bill will have to be published very soon afterwards. In April it will be make your mind up time for the Department as the ambiguities in the White Paper have to be ironed out.