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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