We are entering the end stages of the passage of the Health and Social Care Bill. Whatever happens the debate on NHS reform will continue, but the Bill will soon need to pass or fall. After months of debate and (literally) thousands of amendments, it has all boiled down to what was always going to be the major area of contention: the role of competition and the extent to which it should be promoted or restrained.
In this sense, this week will be critical, with peers due to give substantive consideration to the relevant section of the Bill (Part 3) for the final time (parliamentary ping pong notwithstanding). All eyes will be on the Liberal Democrats, as the party takes centre stage in the debate on reform. As Mark Pack wrote on this blog last week, health again looks set to be the dominant theme at the Liberal Democrat Spring Conference, but it is the Liberal Democrat peers who will have to show their hand first. I am sure the irony is not lost on a party so proud of its internal democracy that its unelected peers will have to lead from the front on an issue which could well define its electoral fortunes for several years to come.
For Nick Clegg, this situation must be unnerving. Having negotiated a pause, declared victory on the subsequent listening exercise and given the Prime Minister his word that he would now back the reforms, he finds that it is others who will determine his party’s position in the end game: party members in Newcastle and peers in the upper chamber. He is reduced to dropping hints about his position, perhaps tacitly encouraging some rebellion whilst maintaining collective loyalty, no doubt hoping to choreograph another round of confrontation and concession so that he can prove he is ‘doing the right thing’.
But what are the issues at stake this week and who is driving them? There is undoubtedly a section of the Liberal Democrat Party that would like to delete Part 3 of the Bill entirely and this should not be a surprise. This group has never believed in competition (even at its current levels within the NHS). However, this is unlikely to be the approach that peers take. There are two reasons for this. Firstly, the Lords is a revising chamber and its members prefer to amend and improve than fundamentally change the nature of the legislation, which deleting Part 3 would undoubtedly achieve.
Secondly, the politics of this do not stack up. The Coalition would surely seek to reverse such a move in the Commons, leaving Liberal Democrat MPs in the invidious position of having to vote to reimpose the competition elements of the Bill. This short term assertion of legislative virility would simply write a large section of every Labour candidate’s election leaflet.
Instead, it is likely that Liberal Democrat peers will dig in around a series of relatively technical amendments designed to symbolise that they are ‘watering down’ competition. Contrary to the way that large sections of the media have portrayed it, this will not be led by Shirley Williams who, although she led earlier efforts to introduce safeguards to the duties of the Secretary of State, has taken more of a back seat role on competition. The key amendments have been tabled by Tim Clement-Jones, a commercial lawyer by background with an understanding of competition issues, and he can be expected to be the leading protagonist this week.
So what are the key amendments? The Liberal Democrats will seek to remove the duty on the Competition Commission to undertake a review in seven years time. The practical impact of this will be limited, as the Competition Commission can already pretty much decide to conduct a review on an issue of its choosing at any time. However, the amendment can be portrayed as creating some clear blue (or yellow) water between generic competition regulators and the NHS.
They will also seek to extend the transitional powers of Monitor to regulate foundation trusts beyond 2016, with the intention of introducing additional safeguards on performance, governance and viability of NHS providers. This would essentially reduce the autonomy available to NHS providers for a longer period and is likely to be resisted by the Department of Health, which is eager for Monitor to focus on its new roles of regulating prices; enabling integrated care and preventing anti-competitive behaviour; and supporting service continuity.
The third key amendment will be about seeking to define the NHS as a service of general economic interest (essentially shielding it from some aspects of European competition law). The impact of this is uncertain. As the designation would ultimately have to be tested at the European Court, including it in domestic legislation may be no more than symbolic (a cynic might argue that including this within legislation would simply alert European authorities to the issue – probably not what anyone wants). Short of leaving the European Union, there can be no – and never has been any – domestic certainty that the NHS will be exempt from European competition law. Again, though, passing the amendment would enable the Liberal Democrats to claim that they have taken steps to protect the NHS from the full force of competition.
The weekend’s rhetoric from the Liberal Democrat high command may not quite match the reality of this week’s debates, but expect these amendments to become important bargaining chips in the discussions which will both precede and follow the Spring Conference. Despite the noise of the last few weeks, it is still highly likely that the Bill will pass and the substance of the reforms will remain the same. Nonetheless, for Nick Clegg and David Cameron, the positioning implications of the detail could be significant. Highly technical amendments have rarely had such political implications.