A day in the Commons for the Efford Bill – a personal view by Peter Roderick, barrister and co-author of the draft NHS Reinstatement Bill.
21st November 2014. The National Health Service (Amended Duties and Powers) Bill, introduced by Labour MP Clive Efford in a passionate speech, was successfully given its second reading in the House of Commons today by 241 votes to 18. Labour turned out in force, Tories in the chamber were mainly in single figures, plus a couple of Lib Dems and a sprinkling of others – not least the new UKIP MP, Mark Reckless, who voted for the Bill. The Secretary of State, Jeremy Hunt, and the 2012 Act’s architect Andrew Lansley were nowhere to be seen – junior Minister Dan Poulter fielded for the government.
Little light was shed on the questions we had asked beforehand to be clarified. The debate itself was a lively mixture of slagging the other side off, statistics trading, quite a bit of meandering and pomposity, and the occasional thoughtful and concerned intervention. The main question in my mind at the end of the debate was ‘what and whom do I believe?’
Some cameos. Only John Pugh, Lib Dem MP for Southport, spoke in favour of abolishing the purchaser-provider split, though seemingly on a local rather than national basis. John Healey, Labour MP for Wentworth and Dearne, announced a meeting on Monday with the EU chief TTIP negotiator and Unison’s Dave Prentis. Sleep-deprived Mark Reckless got ribbed mercilessly – from both sides over his UKIP colleague’s view of the 2012 Health and Social Care Act as not having gone far enough, and by Dennis Skinner over the effect of UKIP’s policies on his “United Nations heart by-pass”, apparently performed by a Syrian cardiologist, a Malaysian surgeon and a Nigerian registrar.
Committee Room 9 meeting organised by Save Lewisham Hospital
More enlightening was the meeting afterwards in Committee Room 9 of about 50 people, organised by the Save Lewisham Hospital Campaign. Mr Efford came along and spoke, but he was in a defensive mood.
He was questioned closely on several issues, and I will mention three here.
The first one involved him and me in a heated exchange over the repeated claim that the Bill will re-establish the Secretary of State’s legal duty to provide the NHS. Mr Efford began by describing the view that the Bill did no such thing as “stupid” and “annoying”. I tried to demonstrate to him why the Bill did no such thing. My reasoning is set out here, and in my letter to the House of Commons library.
In a nutshell, the duty to provide or secure provision in section 1 of the NHS Act until 2012 is not reinstated by the Bill; and the duty to provide listed services throughout England in section 3 of the Act until 2012 would become a duty to arrange provision – i.e., to commission – with no mention of ‘throughout England’. This isn’t rocket science – anybody can read the original section 1 of the 2006 Act and section 3 and see that the duty to provide mentioned in both sections would be amended by the Bill, not reinstated.
But some clarity emerged. Mr Efford’s argument really is that looking at all the provisions of the Bill as a whole, the Secretary of State is being put back in charge of the NHS. What kind of NHS is another question, but that at least is a proper argument, regardless of whether one agrees with it. It’s not a proper argument to say that the Bill re-establishes the Secretary of State’s legal duty to provide the NHS, when it doesn’t.
Transforming the duty to provide into a duty to commission leads nicely to the second point: the reference to the NHS being a ‘service of general economic interest’ (SGEI), which voluntarily defers to EU competition law. Far from being a misprint for ‘service of general non-economic interest’, Mr Efford said that this was because the private sector provided health services and so the reference was correct. What he did not say was that Member States have considerable discretion in determining what are SGEI, and why the Bill makes this reference when it is not legally required.
Finally, Mr Efford – and several speakers during the debate – made it clear that Parliament should decide whether the NHS is exempt from TTIP. Hear hear. But why does Clause 14 of the Bill not say that?
As the meeting closed, John McDonnell MP said that Labour was still in denial over its role in marketising the NHS – a constant attack from the Tories and Lib Dem Julian Huppert during the debate to which there was no persuasive response. This makes sense to me.
At the meeting the understanding was that the government might refuse to allow the Bill to go to the committee stage, and that we should do what we can to prevent them refusing. Since then, I have heard that blocking the Bill in this way would be at least highly unusual. It would certainly be a poke in the eye for democracy. The Efford Bill takes a step in the right direction by reducing tendering procedures and the committee stage will provide a forum for detailed consideration and clarification of several issues and an opportunity for tabling amendments along the lines of the NHS Reinstatement Bill – all steps on the road to the Queen’s Speech in May 2015.