How will DHSC’s legal department meet the challenge of turning a White Paper policy giving the Secretary of State more power of direction over the NHS into law?

Yesterday I developed the point that whilst policy documents thrive on ambiguity, legal documents abhor it. Policy discussion loves ambiguity. Law cannot allow it.

This is what makes the work going on in DHSC at the moment so interesting. A few weeks ago, a team of staff in DHSC wrote a Government White Paper and promised a future Bill to put that into action. Now a quite different group of people, in the same department, are writing a form of words that will – sometime in May or June – be published as a Bill that when enacted will make people do things on the basis of law.

Surely this is all straightforward? It happens all the time. Well actually it doesn’t at the DHSC. It happened in 2010 when Andrew Lansley wrote a White Paper that became a Bill.  But that was a while ago. He wrote it all. People move on and the collective memory fades.

I recalled too how, during my time as a special adviser (2001-7), the different languages spoken by us (policy people) and them (lawyers) could lead to problems.

Today I want to explore one aspect of how ambiguity in the White Paper might create problems for translating it into law.

  • In the White Paper the Secretary of State wants the power to give directions to NHSE/I – but doesn’t want to direct it.
  • It also wants to give him powers to intervene at a much earlier stage in any reconfigurations of health systems – but he doesn’t want control over those systems.
  • In his recent evidence to Health Select Committee he made it clear that he wants the power to veto trust appointments made by NHSE/I but doesn’t want to make those appointments.

These are important, but ambiguous, extensions of the powers of a Secretary of State and appear to have come about because the current incumbent feels that the answer to NHS problems is more Hancock.

But if you examine these three examples – all involve extending his powers but not taking all the power. He seems to want more control while simultaneously recognising that he shouldn’t have it.

My main point today does not concern whether this is a good idea or not. What I want to explore is the reality that whilst these ambiguous policies may be quite easy to write, they are ridiculously difficult law to make.

To create a first draft of a Bill that potentially enacts these desired outcomes the writers of the legislation will have had to weave a path through some tricky aspects of – for example – how a power of direction doesn’t direct on the ground. How does the Secretary of State give a direction to NHSE/I that doesn’t direct the NHS in the country to do something? What powers does s(he) take to make this happen and what powers remain with NHSE/I?

It would be difficult enough if the directions the lawyers were getting were clear and unambiguous. But what if the ambiguity in the White Paper reflected practice in different Departments of State?

Along the road from the DHSC is the Department for Education. Over the last year they have tried to provide some direction to schools over how to deliver services in thousands of schools.

For some of that time they tried to ensure that schoolchildren were fed at lunchtime (and for some of that time they said that it was not their job).

They have tried to distribute over a million laptops to children (and seem to have managed to achieve that in a year).

Now they are trying to provide additional tutoring to disadvantaged children and appear to be employing 17 years olds – at £3 an hour – to manage this particular piece of levelling up.

They also suggested that ‘A’ level results be worked out by algorithm only to reverse that decision the following day.

On one (now infamous) day in December they said schools were safe and the next day closed them.

And just spend a few minutes with a head teacher going through their inbox seeing the bizarre and contradictory nature of the instructions being issued by he Department. You would not form the impression that the Department of State knew anything about what it was trying to do.

This example – of a Department of State having power over the actual local delivery of services – provides a very scary analogy for senior civil servants in the DHSC.

For the DHSC to have any real power of direction over the NHS, it will also need many more civil servants. Any sensible reorganisation would say that this was absolutely necessary. The Secretary of State however insists that this reorganisation will diminish bureaucracy. It will be quite easy to see how many more civil servants he has to appoint to carry out these new duties. It is likely therefore that he will ask the DHSC to carry out these powers of direction without the staff to make it work.

All of this will be leading senior civil servants in the DHSC to seek only minimal additional powers from the Bill for their Department. Given the ambiguity of the idea of directions without directing, it’s likely that the first draft of the Bill will be at the ‘not very’ end of the ambiguity scale of the additional powers requirement.

If I were the Secretary of State, I’d be looking very closely at the first draft of the Bill that comes out of the legal department. Will it allow me to tell the NHS what to do? Probably not.

Looking at the example of the Department of Education civil servants will know that pretending to direct how services are actually delivered across thousands of local delivery points is a mug’s game.

They will also know that it is entirely possible (likely) that by the time this Bill starts its way through Parliament, there will be a new Secretary of State who will recognise the political problems of pretending to give direction to the practice of the NHS.

And never forget, when the Secretary of State moves, the people that write the legislation don’t.

The final Act of Parliament may look quite different.