Guido swallows Tory MP’s NHS spin

Right wing blogger Guido Fawkes appears to have swallowed hook, line and sinker Tory MP Stephen Phillips’s spin on the NHS and attacks on 38 Degrees.

Guido Fawkes has published an interesting reply from an MP to 38 Degrees’s NHS campaign. Guido, and Stephen Phillips MP, share an antipathy to 38 Degrees, and the blogger spins the letter as “proof” that 38 Degrees are “misrepresenting legal advice to fit their agenda”.

There’s not much evidence of that, but Stephen Phillips QC’s letter does make interesting reading. One of the issues 38 Degrees have been focusing on is EU Competition Law.

Phillips takes issue with 38 Degrees’s conclusion that the bill will “make it almost inevitable that UK and EU competition law will apply as if it were a utility like gas or telecoms”.

But his quibble is very different from that of the Liberal Democrats who in their response to the 38 Degrees campaign claimed they have reduced the chances of Foundation Trusts being considered as undertakings (the key test for competition law) and are “shielding the NHS from the worst excesses of competition”.

Mr Phillips’s argument contradicts this Lib Dem position:

“Competition law applies in the NHS now; it will apply in the future.”

Mr Phillips believes 38 Degrees should have said “there is no change between the present competition regime and that which will be brought into being if and when the Bill becomes law”. That sounds rather more in line with the government’s response to Future Forum and the Lib Dem position that “the Bill does not change EU competition law”.

38 Degrees have already responded to this point:

“In no place does it [the legal advice] say that the bill changes EU competition law (that would be impossible anyway as EU competition laws are created at the European level – not by the Department of Health).

“In fact the legal advice explicitly states that the bill does not and cannot change EU competition law. What the legal opinion does make clear is that the current position in terms of the application of competition law to the NHS has not been definitively determined.

“If it were tested, as a result of recent reforms, it is likely that competition law would already apply. Further, if the bill becomes law, it is even more likely that competition law will apply.

“By simply repeating the mantra that ‘there is no change to competition law’, the government has avoided any discussion of the potential far-reaching consequences if competition law is found to apply to the NHS.”

What neither the Lib Dems nor Mr Phillips have done is to explain the possible consequences if competition law does apply.

Perhaps even more interestingly, Mr Phillips doesn’t really seem to take issue with 38 Degrees’s main conclusion relating to procurement – that of the administrative burden on consortia to comply with procurement law.

The strongest thing he has to say about that is:

“I am not sure that any lawyer has sufficient expertise to offer an opinion in this area.”

Perhaps in that case the Department for Health could set out its own view of what they expect the impact of procurement costs on the new clinical commissioning groups to be?

The other main focus of the 38 Degrees legal opinion concerns the abolition of the Secretary of State’s “duty to provide”, something which Left Foot Forward has covered in depth. This duty is primarily contained in section 3 of the 2006 Act. However, revealingly, Mr Phillips prefers to focus on the “duty to promote a comprehensive health service” contained in Section 1(1) of the 2006 Act.

He points out that this duty will be retained, and claims:

“The reader of what 38 Degrees has to say in summary might be forgiven for thinking that if the proposed reforms become law, the Secretary of State will no longer be subject to the general target duty to promote a comprehensive health service.”

There has been quite a lot of conflation on the government benches of the “duty to promote a comprehensive health service”, contained in Section 1(1) of the 2006 Act, and the duty of the Secretary of State “to provide” contained in Section 3 but also contained in Section 1(2) in the context of the duty to promote.

Expressing concern about the removal of the duty to provide from both Section 3 and Section 1(2), 38 Degrees told Left Foot Forward:

“The bill will remove the duty of the Secretary of State to provide or secure the provision of health services which has been a common and critical feature of all previous NHS legislation since 1946.”

That seems pretty consistent with the first three paragraphs of their full legal advice which Williams and Guido are claiming they are misrepresenting:

1).It is clear the drafters of the Health and Social Care Bill intend that the functions of the Secretary of State in relation to the NHS in England are to be greatly curtailed. The most striking example of this is the loss of the duty to provide services pursuant to section 3 of the NHS Act 2006, which is currently placed on the Secretary of State.

This will be transferred to the commissioning consortia, and reformulated accordingly. In real terms this means that, effectively, the government will be less accountable in legal terms for the services that the NHS provides.

2).Currently, the duty in Section 3(1) has been delegated to Primary Care Trusts (PCTs). However, this is pursuant to statutory powers of delegation (for example under section 7 of the NHS Act 2006), and these powers can be exercised in a different way, or not exercised at all, if the Secretary of State so chooses.

3).Effectively, the duty to provide a national health service would be lost if the Bill becomes law. It would be replaced by a duty on an unknown number of commissioning consortia with only a duty to make or arrange provision for that section of the population for which it is responsible.

Although some people will see this as a good thing, it is effectively fragmenting a service that currently has the advantage of national oversight and control, and which is politically accountable via the ballot box to the electorate.

Stephen Phillips seems to agree with this conclusion – indeed he defends the rationale behind it:

“The government believes, as do I, that to secure a comprehensive National Health Service… it is appropriate not to manage from the top down and to ensure that the principle of subsidiarity is followed to its logical conclusion so that real power is returned to local people and professionals to control the services which are available to them.”

That is a political defence of the plans to abolish the duty to provide in section 3, not evidence of 38 Degrees misrepresenting the fact that it is going to be abolished.

Stephen Phillips signs off with what sounds like a promise to ignore his constituents if they contact him about this in future:

“I regret to have to make clear that I will not in future be responding to campaigns run by what purports to be, but what to me is evidently not, a non-political campaigning organisation which I firmly believe is misleading you all.”

Presumably he thinks that is the luxury of Conservative MPs in safe seats. Last year, Left Foot Forward reported the efforts of Dominic Raab, one of the few Conservative MPs to have an even safer seat, to ignore messages from constituents who belong to 38 Degrees. Even Guido described this episode as leaving Dominic Raab looking “rather stupid”; it will be interesting to see whether Phillips fares any better.

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18 Responses to “Guido swallows Tory MP’s NHS spin”

  1. David Isaacs

    . @GuidoFawkes swallows Tory MP’s NHS spin: reports @ShamikDas #SaveTheNHS #SaveOurNHS

  2. Melissa Higgs

    . @GuidoFawkes swallows Tory MP’s NHS spin: reports @ShamikDas #SaveTheNHS #SaveOurNHS

  3. tigercat1

    . @GuidoFawkes swallows Tory MP’s NHS spin: reports @ShamikDas #SaveTheNHS #SaveOurNHS

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    Guido swallows Tory MP’s NHS spin: Right wing blogger Guido Fawkes appears to have swallowed hook, line and sink…

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  13. Botzarelli

    On the competition law point.
    1. The 38 degrees response is weak – even without “recent” reforms competition law applied, the difference in the Bill is that it removes the scope for arguing that NHS Trusts (etc) are not undertakings. That scope is very limited but has not been tested because the OFT was reluctant to expand its practical jurisdiction into the NHS and bottled out of doing so when the Competition Appeal Tribunal rejected its stance in the Bettercare case. Is there really a public benefit to making abusive conduct by the NHS which may harm patients, the taxpayer and suppliers harder to control?
    2. Is the application of competition law to the NHS really such a terribly bad thing? The problem in the utilities is not the application of competition law but the fact that the regulators have been so unwilling to apply competition law. Competition law is a mechanism for ensuring consumer benefit. Obviously the idea of using the language of “consumers” rather than patients is unpalatable, but in the health context patients are not harmed by being considered to be consumers. They don’t pay for health services so the only grounds for assessing consumer benefit have to be those based on quality, timeliness and appropriateness of care.

  14. Alex Braithwaite

    RT @leftfootfwd: Guido swallows Tory MP’s NHS spin

  15. Leon Wolfson

    Yes, it is. Competition law bleeds massive amounts in compliance and lawsuits, and the NHS now has to have the overheads for this rather than for patent care. Easily a 20-30% crunch.

  16. Richard Blogger

    The proof of the pudding… is the fact that so far no provider has used competition law. Instead, the Dept of Health provides the Co-operation and Competitions Panel to handle cases where there are disputes over competition. The CCP say that they exist “to promote competition”, so it is clear that competition is not new in the NHS.

    The CCP is now being moved to Monitor as an autonomous organisation. We have yet to see whether the CCP will be more lenient to private companies after this move, whether they will handle more complaints, or whether providers will resort to the courts. My guess is that they will stick with the CCP since the courts can be an expensive route.

    Anyway, Tory MPs who say that competition has not changed, are not telling the whole truth. We have yet to see what changes will be made to the CCP, and what effect the OFT will have.

  17. Mr. Sensible

    What a mess…

    Why do they insist on railroading this through when the medical professionals, in theory empowered by the bill, don’t support it?

  18. Richard Blogger


    “Is the application of competition law to the NHS really such a terribly bad thing?”

    Let’s get this straight, the application of competition has nothing to do with “patient choice”. It is about whining private companies wanting to make a pile of gold from the perceived bottomless pit that is the NHS budget. However, when they get to the sharp end, and have to do some hard work, they squeal like babies. I give you Circle, who bid to run Hinchingbrooke and then when they were chosen they decided that NHS hospitals are too hard for them to run and are now trying to get the hospital downsized. Why? They now tell their investors that they are unlikely to make a profit on that hospital. The contract was supposed to be signed in June, it still has not been signed. Meanwhile patients are in limbo not knowing whether large parts of their hospital will be closed. That *is* damaging.

    “but in the health context patients are not harmed by being considered to be consumers.”

    Yes they are. Consumers pay, and they get what they pay for. To a consumer price is an important criteria. They can choose to pay more for a better service. This is not the case at the moment with NHS patients. When anyone says that NHS patients are “consumers” this should be interpreted as having the parenthetical “(and in the future have the ability to pay top-ups for extra care)” That will make the NHS very unequal.

    “They don’t pay for health services so the only grounds for assessing consumer benefit have to be those based on quality, timeliness and appropriateness of care.”

    If they don’t pay, then they are not consumers. The other criteria you give are aspects of being a *patient*. If you argue that *consumers* have these criteria then logically (I am not saying that you are suggesting this) it means that NHS patients do not have quality, timeliness nor appropriateness of care.

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