Now Tory MPs have rubber stamped a deeply flawed Health and Care Bill with no opposition amendments passed and minimal changes conceded by ministers, the focus for opposition to it will shift to the House of Lords.

The fight over the controversial issues is important, both to expose as widely as possible (and warn a wider public and the NHS staff) what new problems are coming down the line, and to make it absolutely clear that each and every negative consequence that flows from the Bill is down to ministers and the Tory MPs that vote it through, and nobody else.

According to a document leaked to the HSJ, it appears that NHS England is concerned that the tight schedule to launch Integrated Care Boards by April next year, when legislation may not have been finalised until late February or March could force a delayed launch of the new system.

The last-minute addition into the Bill of the controversial proposals to introduce an unfair system to “cap” social care spending for the wealthy, offering little if any benefit to those on low incomes dependent on local authority funding, or with smaller assets and lower-priced housing, could yet be a factor in holding up progress.

But even if this happens, and as a result some amendments are carried in the Lords and even accepted by the Commons, at the end of the process a government with a majority of 80 will get the core elements of its Bill through. 

Campaigning lessons

So whatever is passed we will have to find ways to fight on to repair and restore our battered NHS – just as we had to do back in 1991 as John Major’s government broke the NHS into an “internal market” of purchasers and providers, and in 2012 after Andrew Lansley’s wide-ranging and fundamental Health and Social Care Act was forced through by the Tories, propped up only by the spineless LibDems.

That legislation set out to entrench privatisation and outsourcing, a competitive market system in which local commissioning groups were forced to put an ever-growing range of clinical services out to competitive tender. Lansley’s fundamentalist neoliberal supporters gleefully hailed it as the start of the “denationalisation” of the NHS. Happily they were subsequently disappointed.

The 2012 Act replaced Primary Health Trusts as local commissioning bodies with 207 newly-created Clinical Commissioning Groups, in theory ‘led by GPs’: it also scrapped Strategic Health Authorities, and with them any coordination or planning.

It ended the direct accountability of the Secretary of State for the promotion and provision of health services in England, which was transferred to an ‘arm’s length’ body, NHS England – although in practice Health Secretaries have continued to behave as if they were still in charge.

It gave foundation trusts new “freedom” to make up to half of their income from private patients and other work outside the NHS, scrapping previous tighter restrictions. 

But in practice, vigorous resistance to the Bill by campaigners was followed by increased local scrutiny and exposure of every move by CCGs, every contract they signed, and every company seeking or winning contracts. That, coupled with frequent private sector failures and continued public opposition to privatising NHS services, helped to limit how far the key Lansley plans could be fully rolled out.

An initial flurry of contracting led to an increase in numbers of private contracts, especially relatively low value community health contracts: the number and total value of contracts did increase, but the share of NHS spending on for-profit providers plateaued in 2015 and has even fallen slightly. Only by including the whole of spending on GP services can the total spent on non-NHS providers prior to Covid reach 26%: without the GPs it comes to 18.5%.

Clearly this level of spending on private provision of mental health, elective care and contracted services is way too high, and the NHS could more efficiently deliver better coordinated services if the contracts were brought in house along with the necessary investment. 

But years after Lansley the vast majority of NHS services – and the whole of emergency health care services – are still delivered by NHS providers, with private companies unwilling to touch most of this work for fear of eroding their profit margins.

Since 2014, just over a year after the Act came fully in to force, NHS England’s focus shifted from competition, markets and the private sector, to ‘systems’ and coordination between providers and commissioners, reducing fragmentation. Now there is no visible lobby seeking to uphold and continue with the legislation the Tories fought so hard for in 2011-12.

Instead we saw the abortive drive in 2016-17 to reorganise England’s NHS into just 44 “Sustainability and Transformation Plans”; then mergers of CCGs, coupled with pilot projects establishing so-called “Integrated Care Systems” from 2018; and the Long Term Plan in 2019.

The Plan was linked to a campaign by NHS England for new legislation, to remove sections of the Lansley Act requiring competitive tendering, and to give legal powers to 42 ‘Integrated Care Systems.’ 

Partial progress on outsourcing

The new Bill does end some tendering, but pulls up well short of abolishing outsourcing and privatisation, or making the NHS the default provider, as proposed by the unions. It only abolishes competitive tendering for clinical services (of which only an estimated 2 percent have been going through with tender processes anyway), and does not roll back any existing contracts. An amendment reinserting regulations to limit the danger of a new round of shameless crony contracts has been rejected.

Numerous controversial proposals were added to the Bill by former health secretary Matt Hancock, extending and adding new powers of the Secretary of State on a wide range of issues, including intervention in local hospital closures and reconfiguration of services.

The Bill scraps the legal right in the Care Act (suspended last year during the Covid peak) for vulnerable patients to have their needs fully assessed before they are discharged from hospital, posing real dangers of patients being left stranded at home by inadequate social care, community and primary care services.

Ministers have responded to criticism that the Bill is a ‘corporate takeover bill’ by tabling an amendment to prohibit anyone “involved with the private sector or otherwise” from taking a seat on an Integrated Care Board if this could be “reasonably regarded as undermining the independence of the health service”. But an amendment to similarly keep private-sector representation out of all ICB decision-making bodies has been rejected, and an amendment to exclude GP employees of private corporations from ICB GP seats also failed. 

With just 42 ICBs as “local” bodies, some spanning large areas and populations as large as 3 million, and no explicit requirement to establish more local “place based” structures, England’s NHS will be less locally accountable and less open to scrutiny than it has been since the early 1970s.

Amendments calling for ICB chairs, who will have considerable powers, to be elected on similar lines to police and crime commissioners were brushed aside. Instead chairs will be imposed top-down by NHS England, and accountable only upwards, not downwards to local communities: they can be removed only with agreement of the Secretary of State. 

The Bill reorganises the NHS – but it does not fundamentally change the system established in 2012. It does not “sell off” the NHS, although services will still be contracted out, not least where capital investment is required to develop new centres or services. Private hospitals and contractors do not seek to own, but feed off and profit from the NHS.

Any increased role of the private sector or major outsourcing of contracts once the Bill becomes law is almost certain to be closely watched and scrutinised – with just 42 ICSs to keep track of, and a horde of campaigners in each, alert to the slightest whiff of cronyism or privatisation and ready to sound the alarm.

The fight goes on, to the Lords – and beyond. 

But the bill is far from the only, or even the biggest problem faced by the NHS. A wider fight also has to be waged on the ground in every part of the NHS, where 12 years of cash starvation coupled with Covid has brought services to an unprecedented crisis in which the main enemy is not the private sector but the lack of public investment and NHS provision.

There’s still a lot of NHS to defend – and far too much to lose if we don’t.

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