Defeating secondary regulation happens once in a generation, so overturning the NHS Privatisation Regulations was always going to be tough. Nonetheless, the spectacle of Lords with private healthcare interests, voting them through, raises fundamental questions about our democracy.
For campaigners, the debate around section 75 has focused minds on the battles ahead, locally, nationally and internationally. It has begun to expose how citizens’ rights to healthcare are being undermined by a growing emphasis on private companies rights to provide them for profit.
The issue of NHS privatisation was largely obscured in last year’s coverage of the Act itself. This time, campaigners forced it onto the front pages and airwaves, although far more coverage is needed.
As Lord Owen said in the debate:
“within this Act is the potential…to have a fully marketised National Health Service. If that is the choice, the people of this country should be told about it. They should know that this is the direction in which we are going…”
To this end, new links have been forged and old ones re-established.
The BMA, the TUC, 38 Degrees and other allies sprang into action far faster than they did over the Act itself. The medical profession spoke out with unprecedented strength and pressured the normally apolitical Royal Colleges to do the same. GPs and nurses were united in their opposition, as were many charities.
The medical profession has shown itself to be utterly opposed to the direction of travel – something that can surely be used to slow down the implementation of the worst excesses of the Act, including these regulations. Meanwhile, campaigners found new ways to highlight their disquiet, from a 350,000 strong petition, to the performance artist and cancer patient who pushed a toy pig with his nose to Westminster on the day of the parliamentary debate.
We may have lost this battle – but the government was also forced to reveal its hand. Its trump card turned out to be a joker - exaggerating the extent to which it is already in a stranglehold of international obligations, whilst secretly negotiating to tighten the noose.
Lord Clement Jones told the Lords that “the revised regulations are as good as it gets within the constraints of EU procurement law”. But this position is simply wrong. Baroness Shirley Williams herself admitted in the debate that it is hard to see how EU procurement law is really the problem, given that Scotland and Wales have taken a different path.
In fact, the problems are caused by both domestic legislation (including around Foundation Trusts), and also by an altogether stranger beast - not EU procurement law, but international competition law. Or rather, future international competition law.
But our NHS does not have to be included in such treaties, governed primarily by international obligations to investors and corporations. It can and should be excluded as a public good. Otherwise, it would be difficult for any future government to halt, let alone reverse, the accelerating privatisation of our NHS.
Theorists can argue that a future parliament’s hands can never be tied in this way. But realists point out that the cost of breaking such treaties, once signed, would be huge. Either, multi-billion pound financial penalties to investors denied future profit opportunities, or the (even more politically cataclysmic) departure of the UK from not just the EU, but the World Trade Organisation.
Even as we build links internationally to raise awareness of these negotiations and demand accountability, much of the implementation – and therefore, the resistance - is taking place locally. The last two years has seen an flowering of groups set up to defend the NHS, including through umbrella campaigns like 38 Degrees and Keep Our NHS Public, and those fighting specific local threats like hospital and A&E closures.
A major focus for local campaigners will be to peer underneath the NHS logo to expose which services have already been handed over to private providers, the impact of that, and whether anyone had a choice.
Beyond documenting and publicising the impact of privatisation, campaigners will want to try and stop it.
Many local groups have already built links with CCGs. They could work together to look for wriggle room to make decisions that protect the NHS from being undermined by private sector cherry picking. Encouragingly, a few CCGs have initiated such contacts. Campaigners will need support for both monitoring and campaigning, from national organisations - the TUC and Keep our NHS Public are both to publish further guidance, shortly.
It is not just the law that shapes what happens on the ground, but financial, practical, and political realities. One early priority will be to stop CCGs simply handing over their powers to (completely unaccountable, and soon to be privatised) Commissioning Support Units. Co-operating with health workers, councillors (now with a larger role over health), and local journalists will be vital in trying to make local NHS privatisation politically impossible.
During the debate, Lord Howe promised that to award a contract without tendering, “a commissioner needs to go through a process to make sure that it is taking sensible decisions that genuinely address the interests of its patients. In other words, it must have a rationale for what it does and be satisfied that it is doing the most appropriate thing. As long as it has that rationale, that is where the matter ends…"
A good test of these assurances would be for commissioners (or campaigners) to conduct meaningful consultations of staff and / or local populations. If an overwhelming majority voted for a service to remain with an existing provider, would this constitute sufficient rationale for not going out to competition? If such an approach was blocked, it would certainly expose the extent to which the NHS reforms are truly based on ‘clinical leadership’, ‘patient interests’ and the principle of ‘no decision about me, without me’.
Shirley Williams promised that these regulations ‘knock out Monitor completely’ and Lord Clement Jones promised that Monitor’s (as yet to materialise) guidance would “allay…many of the fears expressed about the impact of the new regulations.”
We shall see.
Campaigners could also get involved with bodies like HealthWatch and Health & Wellbeing Boards, though it’s unclear whether they will get any closer to real decision making, or whether they would be permitted to share information with those ‘on the outside’.
Some have suggested other ways of formalising links with CCGs which or seeing if the ‘Social Value Act’ has any real teeth. Others may be considering more radical strategies to make the sector less economically attractive to investors. A clearer statement of intent from Labour that it opposes NHS privatisation would help.
In the final analysis, valiant attempts at damage limitation are no substitute for proper democratic accountability. Where local voices are ignored and where local commissioners say their hands are tied too, this needs exposing. But the most insidious aspect of the Act is that it allows government to increasingly wash its hands of central responsibility for our health service. Opposition politicians must call out this strategy, every time they see Hunt passing the buck.
Ultimately, proper democratic accountability must be restored – and that requires a change of legislation. It was disappointing to see no mention of the NHS in Labour’s ‘Alternative Queen’s Speech’ this week. Angela Eagle, when challenged, responded that there was ‘no need for any Bill’ on the NHS.
But clearly there is a need - not merely to repeal the Act, for the rot goes deeper than that. We could start by looking to support Lord Owen’s ‘NHS Re-instatement Bill’, which aims to re-introduce the government’s responsibility for providing a universal healh care service.
Many have expressed disappointment at the low turnout of Labour Peers in the Section 75 vote. Of course, allowances must be made for Peers who are elderly and frail, especially given the late hour of the vote. But this doesn’t fully excuse the poor showing.
If One Nation Labour is to mean anything to voters, it needs to stand up vocally for the National Health Service, as a publicly owned, publicly accountable, universally provided service, funded through general taxation. This part of the social contract has huge public support.
Labour must also oppose vigorously all attempts to introduce charging to healthcare. The targeting of ‘less deserving groups’ (starting, as ever, with immigrants and drunks) is a particularly divisive approach, but a hasty marriage of the NHS and (already means-tested) social care, without proper guarantees on free healthcare, is a more subtle peril.
If Labour does not step up to the challenges, perhaps the National Health Action Party should start considering fielding candidates against sitting Labour MPs.
Do we get the political culture, and public services, we deserve? Or could the huge public affection for the NHS, be the turning point for restoring a culture of greater civic involvement?