Close to an Act: how did the Health and Social Care Bill get passed?

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It’s all over, bar some (more) shouting.  The Health and Social Care Bill is nearly law but, after hundreds of hours of debate, thousands of amendments and countless controversies, what will it actually mean?  And how on earth did it ever get passed?

Theoretically the Queen could decline to give Royal Assent to the Bill, as Unite suggested last week.  However, barring any constitutional outrages or last minute shocks in the Commons, it will become an Act.  And the Health and Social Care Act will represent one of the longest and most complex items of health legislation ever known.  That it passed through a hung Parliament, in the teeth of such controversy is no small feat.

For better or worse, the Act will represent one of the most profound pieces of reforming legislation ever (alongside the Attlee reforms of the 1940s and some of the market reforms of the last Conservative Government).  I believe all three sets of reforms have problems, but the scope of their impact and ambition is undeniable.

Reworking the NHS

As you flick through the new Act, chapter after chapter introduces whole new approaches to how the NHS works.  Short of the original NHS Act, there is no other piece of legislation I can recall which changes so comprehensively how the NHS works:

• Section 1 of the original NHS Act has been changed.  The Secretary of State no longer has a duty to provide – that means he no longer has any legal mechanism through which he can exercise his own will directly on the NHS.  That is a change which has historically been necessary to enshrine the purchaser-provider split from 1990 – the failure of legislation to do so then meant that the divide has been permanently muddied for 25 years

• Section 8 of the Health and Social Care Act establishes an independent NHS Commissioning Board.  It goes further than even the creation of the NHS Executive did to shift control away from ministers – again, by legislation which guarantees the Commissioning Board’s independence

• Section 9 establishes Clinical Commissioning Groups as independent statutory bodies in their own right – with functions conferred directly on them.  Unlike Primary Care Trusts and Strategic Health Authorities these functions cannot simply be taken away

• Section 71 – and I write this advisedly – imposes competition law on the NHS

• Section 127 sets out the legal framework for putting an NHS hospital into administration

• Section 162 removes borrowing restrictions on NHS Foundation Trusts

• Section 164 lifts the private patient income cap

And there are others as well:

• Section 17 strips out most public health responsibilities from the NHS, and gives them instead to local councils

• Section 34 gives powers to determine whether to fluoridate water supplies to local councils (Andy Burnham should be happy about this, having campaigned long and hard for it as a new MP)

• Section 55 abolishes the Health Protection Agency

• Section 116 removes ministers from having any role in setting the tariff from NHS services

• Section 147 prevents ministers from encouraging an increase (or decrease) in the proportion of services provided by any particular sector, be it NHS, voluntary or independent

• Section 189 permits local councils to scrutinise the providers of all NHS-funded services – including in the private sector

• Section 231 establishes NICE as an independent body

Has the legislation received enough scrutiny?

Each one of these provisions could easily have seen fierce debate.  Notwithstanding the row over whether or not these reforms were ‘top down’ (they were), in truth only sections 1, 71 and 164 – the purchaser-provider split, competition law and the private income cap – have represented the flashpoints.

I find this quite extraordinary.

• Take clinical commissioning.  In the 1990s, GP fundholding – the forerunner of clinical commissioning groups – was so abhorred by some parts of the NHS that fundholders were labelled ‘quislings’.  But something similar in legislation has now been put in place.  There has been no repeat of the denunciation of those GPs who have signed up to clinical commissioning groups – they all have – which is no mean achievement.

• A hospital administration regime was considered by the last Labour Government but baulked at, for fear of the political consequences.  In this legislation, it has been set out with no particular scrutiny amongst the public (even if Lord Warner has done an admirable job in the Lords).

• And the prudential borrowing code was – alongside the private income cap – the major concession awarded to Labour rebels over foundation hospitals in 2003.  Now it has just been removed without public debate or much parliamentary scrutiny.

And those are just the parts of the Bill which have – relatively speaking – attracted attention.

Passing public health powers to local councils represents one of the greatest reshaping of responsibilities this country has ever seen.  And it seems to have just happened.  Policies on the fluoridation of water were one of the major parliamentary flashpoints of the passage of the Water Act 2006 (the Conservatives even gave their own side a free vote on the issue). Now it has just been whipped through.

The Health Protection Agency was painfully constructed in its own right as an independent organisation through a piece of well-considered legislation – the Health Protection Agency Act – and it has simply been taken back by ministers, without Parliament having brought to bear any particular level of scrutiny.

The Health and Social Care Act has ripped through vast swathes of primary legislation.  It is as broad in scope as any piece of consolidating legislation – but it doesn’t consolidate anything.  All of it is new.

And this is the premise of my blog today.  I do not believe that the Health and Social Care Act has attracted too much noise.  If it had been broken down into its component parts – some 10 bits of separate primary legislation, say – there is no chance it would have all got through.  In my view, parts of it have attracted too little (or at least too little high quality) scrutiny.

Fortunate circumstances

So how did it happen that we (nearly) have the Health and Social Care Act?  I am struck, not by the headwind that has faced Andrew Lansley – and we should be in no doubt that these are his reforms, rather than the Government’s – but by the extraordinary beneficence of circumstance which has greeted him.

First, the Bill would not have made it to the verge of an Act had it not been for the Coalition.  It was the Coalition which has given the Government a stable majority in the Commons, and enough voting feet in the Lords to go through the lobbies.  The Liberal Democrats may hate it, but this Act will reach the statute book because of them.  A wafer-thin Conservative majority – given the number of Conservative MPs who are either downright hostile to Number 10, openly sceptical about the benefits the reforms would bring, or even privately contemptuous of the role of a taxpayer-funded NHS – would have evaporated as the Bill reached its endgame.  With a Conservative-only Government, the Act may never have made it.

Second, this would not have passed were it not for the introduction of fixed-term Parliaments.  It was this policy which has gifted Andrew Lansley the extraordinarily long session of this Parliament – a session two years in length.  Without that, the Bill would have had to have been introduced in the Lords and carried over in the Commons.  The Opposition could so easily have strangled it then, particularly after the pause and further delays to reconsider the duties of the Secretary of State.

Third, the reforms would never even have seen the light of day were the Government not so green when they were first published.  Any new item of controversial reform is now pored over by the Government.  But, back in the heady days of July 2010, it was just nodded through.  By someone in Number 10’s own admission, Downing Street was asleep at the wheel.  By the time they realised the political risks they could be running, they were already running them.

Fourth, the permanent civil service – not necessarily within the Department of Health but certainly in the Treasury and in Number 10 – hate the reforms.  But when the Government came to power they were too timid – too fearful of their new political masters – to challenge the basis of the reforms.  The permanent civil service, particularly inside Number 10, is now much stronger.  A reform of this sort could no longer get through without it meeting fierce resistance.  But, by the time Downing Street had strengthened itself, it was too late to stop the juggernaut.

Fifth, many of the key moments in the reform process had nothing to do with Parliament.  The formation of pathfinder consortia (now commissioning groups) and the agreement, back in the autumn of 2011, which made membership of a clinical commissioning group a condition of the GP contract, had little to do with the Act, but made many of the changes it introduced inevitable.  GPs effectively and irrevocably signed up to the reforms long before many of them decided to oppose them.

The role of Andrew Lansley

These five reasons help to explain how the Bill has been (nearly) turned into an Act.  But I am not a believer in happy coincidence.  And although he is described in many ways now – ‘hapless’, ‘beleaguered’ etc – I do believe there is method to Andrew Lansley’s madness.

Andrew Lansley is a professional policy maker.  But more than that, he is a professional legislator, and he is a professional civil servant by training – his early career involved making things, controversial things – happen under the Thatcher Government.  He is all of these things first, rather than a politician, which explains the difficulties he has experienced in communicating the reforms, but perhaps also explains his ultimate success in making them happen.

He has also, surprisingly given his low profile before the General Election, been around forever.  He was working in the Government when the Conservatives swept to power in 1979.  He was in the Cabinet Office in the late 1980s, when Mrs Thatcher was in her prime.  He was also the head of policy for the Conservative Party when she was deposed.  Amongst the Cabinet, he is second only to Ken Clarke in terms of government experience.

And he has used his expertise and his experience to great effect.  For many of the apparently fortuitous coincidences listed above, there are reasons why they have been brought about – in one way or another – directly by Andrew Lansley:

• Liberal Democrat votes.  The most critical thing to getting plans off the ground is to ensure you have a majority in the Commons. In retrofitting local democratic accountability onto his original plans – something which he hated before the General Election – he was able to get Coalition support for his proposals.  So, yes the Liberal Democrats delivered votes but only, initially, because Andrew Lansley made a tactical retreat (something he is not particularly famed for), implementing a policy he once fiercely opposed.

• Using the honeymoon period.  The sheer speed of delivering a White Paper just three months after a General Election was something driven by Andrew Lansley himself.  He used his experience of the civil service to channel resources into the development of the White Paper, used his experience of the Whitehall machine to circumnavigate all the relevant Cabinet committees, and his experience of legislation to make sure everything he wanted to achieve was in the first draft.  That speed was, as we have seen, critical not only to lulling the Government into a false sense of security – but also to ensuring the Government as a whole was in too deep before Number 10 was capable of (or predisposed to) resisting government departments.

• Confusing opponents. The breadth of topics the legislation covers, which gives rise to the complexity which has so disorientated opponents, is entirely intentional. Now, this confusion may have had the unfortunate side-effect of manifesting itself in the scorn for which the media feel towards Andrew Lansley’s reforms – ‘what on earth is he doing?’ – but it does mean that the reforms themselves have been able to march across the battlefield from one trench to the other under the cover deliberately dense fog.  The BMA, for example, spent over a year trying to reconcile support for clinical commissioning with opposition to the competition elements of the Act.  By the time this evolved into outright opposition, both sides of the Coalition were bound to the reforms and it was too late.  It may not make for a good communication strategy to the public, but complexity was important in getting the reforms off the ground in the first place.

Andrew Lansley’s approach may not have translated into political advantage or public popularity, but it did, ultimately, lead to legislative achievement.  The successful passage of one of the largest, most complex and contentious acts of reform – particularly in a hung Parliament – was not something which could have ever been guaranteed.  There is no doubt that a healthy dose of luck has allowed its passage. But, as the saying goes, you create your own luck.  And that is how the Act has been passed.

The next question is of course, will it ever get repealed? And that is something I shall return to later this week.