Earlier this week, I wrote about how the Health and Social Care Act ever came into being. Today is the time to speculate how it might ever come to an end. The Labour Party has made much of its opposition to the Health and Social Care Bill. The Shadow Health Secretary, Andy Burnham, has repeatedly insisted that he will repeal the Bill.
It is important to stress that unpopular legislation can be repealed (think the Poll Tax) and this option would look superficially attractive to a future administration (be it Labour, Lib-Lab coalition or perhaps even another Con-Lib coalition) if the NHS struggles. But the politics or administration of such a solution would not be simple. So will the Act ever be repealed, by Andy Burnham or anyone else?
The answer is, in a word, no. Or at least, not in the strictest sense of a one-clause Bill which states simply “The Health and Social Care Act 2012 is repealed”.
Areas of consensus
The basic reason is that there are parts of the Bill on which virtually all politicians would agree. Why, for example, would Labour repeal a Bill which puts NICE – a creature of its own invention – on an independent statutory footing? The only possible reason would be if politicians wanted to direct it at some point in the future – something which they (at least publically) shy away from. All politicians may find subtle and not so subtle ways of leaning on NICE (all parties have in the past), but they will surely be wary of publically challenging its independence.
The section of the Bill relating to NICE is Part 8, but the same could be said for Part 9 (which establishes the Information Centre as an independent body – which politician will champion the possibility of interfering in information about the NHS?). Similarly, Part 5 of the Bill extends mechanisms for patient involvement and public scrutiny in health services and, although it seems to be a political pastime to change public and patient involvement mechanisms, I am not sure there would ever be much appetite to turn the clock back (why should private providers of NHS-funded services not be exposed to scrutiny, for example?). And the same could be said for Part 7, which strengthens the regulation of healthcare workers. There may be a case for regulating them still further, but not – I suspect – for deregulating them.
Parts 2, 6 and 10 are the bread and butter staples of government legislation – they are in general the things that any government, of any particular party, would have to legislate for as the civil service has realised existing legislation is inadequate. These parts are not about politics or ideology – they are about good law. Repealing them would mean making the case for legislation which has proved inadequate, and I can’t see that happening.
So, if the whole Bill will not be repealed, which bits will be?
It’s not an easy question to answer.
Take Part 1, which as health geeks will know establishes the NHS Commissioning Board as an independent body and Clinical Commissioning Groups to replace PCTs as commissioners. It seems relatively easy to repeal and might be tempting for a future government if the NHS runs into stormy waters. The shape of the NHS would revert to that dictated by the 2006 NHS Act, and that was already pretty permissive: it never set out the areas to be covered by primary care trusts or strategic health authorities, so these titles could just be retrofitted onto whatever NHS structure existed at the time. The regional bits of the NHS Commissioning Board could become the SHAs and the CCGs could become the PCTs. The national bits of the NHS Commissioning Board, now based in Leeds, would simply march back into the Department of Health in, well, Leeds. People would not even have to change their desks, apart from getting up to change the nameplates.
But this simplicity is illusory. The Government has not spent the last 15 months dragging a Health and Social Care Bill through Parliament which seeks only to change nameplates. Repealing Part 1 would involve far more than changing them back.
First, it would entail the abolition of an independent NHS Commissioning Board. It is not a jack which fits all too easily back in its box. Where is the politician that will get up and argue that what the NHS really needs is greater scope for political interference? Politicians may come to believe this, but whether they will say it is another matter. The only way this argument could be won would be through proof that the NHS Commissioning Board has let down the NHS – something that David Nicholson is unlikely to let happen on his watch. In any case, even if it did, getting rid of the Chief Executive may prove easier than getting rid of the institution. And, if the Chief Executive happens to be known as a formidable operator not accustomed to losing battles (which applies to David Nicholson and may well do to his successors), then abolishing the Board will be politically tricky.
Second, it would entail the removal of legal power from GPs as commissioners of NHS services. This one has been done before, when Frank Dobson repealed GP fundholding after the 1997 General Election. But circumstances then may not be repeated in the near future. First, Labour had a thumping majority in 1997, which may not be guaranteed any time soon. Second, it abolished GP fundholding through secondary legislation – it was able to do so because the overarching architecture of health authorities remained in place in primary legislation. In future, no such overarching architecture will exist. Third, in 1997, half of the country was covered by fundholders but the other half was not, leading to unfairness and inconsistency and enabling the Government to deploy a ‘two tier NHS’ narrative in order win the argument.
This time around, the whole of the country will be covered by Clinical Commissioning Groups (even if enthusiasm for fundholding is not uniform within them). Perhaps most importantly, however – and readers of Tony Blair’s autobiography will recognise this argument – Labour realised by the time that it left office that abolishing GP fundholding was not the right thing to do. In this vein, Andy Burnham, for example, argues that clinical commissioning is a good thing. This is an issue on which quietly, amidst the noise of reform, consensus has emerged. Would anyone therefore repeal the legislation which so explicitly underpins it? And would it be worth it?
The final bit of Part 1 is, of course, the transfer of public health functions to local councils. Lots of people seem to support this in principle, and once the transition has happened I don’t see why people would want to change it back. There are not very many friends of the calamitous 1974 reorganisation which removed public health from local authorities anyway.
Perhaps the overriding reason why Part 1 will stay is that it is about structural reorganisation. One of the charges which has really hurt the Coalition is that it went back on its word not to initiate a ‘top down’ reorganisation. Ministers can dance on the head of a pin as much as they like, but the charge is undeniable. The NHS, much as it may resent this set of structural changes, is like any good bureaucracy: it rapidly adapts to its new reality and sets about making it work. Remember, the last round (and the round before that) of PCT reorganisation was resented every bit as much as it was subsequently defended. The question then becomes whether any politician would countenance yet another restructuring, when it is clear how unpopular they are within the NHS?
So could Part 1 be repealed? Yes. Will it be? I wouldn’t bet on it.
Part 4 – the bit relating to Foundation Trusts – is a genie out of the bottle, a point that opponents of the Act have made eloquently over the past eighteen months. In the main, it removes the private income cap on foundation hospitals – a cap which was set at the levels of hospitals’ private income in 2002-03 and which incorporates a wide range of activity, including research partnerships and charitable donations.
This part would only ever be fully repealed if no hospital would be made worse off. But it is highly likely that by the time anyone countenanced repeal, a number of foundation hospitals will be earning in excess of their 2002-03 income cap – so repealing the legislation would have the effect of removing some of their funding. When you consider that these hospitals will be those like Great Ormond Street, the Royal Marsden or the Christie, removing funding looks very politically challenging.
And so I don’t see Part 4 being fully repealed. It is conceivable that someone could choose to freeze in time once again the proportion of private income a hospital might earn (say, at 2016-17, 2021-22 or 2026-27 levels (I’m hedging)), but I believe this is as far as a future government would go.
Competition:the eye of the storm