David Wrigley
Improving the NHS is the Conservative party’s number one priority … this requires an end to the pointless upheavals, politically motivated cuts, increased bureaucracy and greater centralisation that have taken place under Labour.
David Cameron and Andrew Lansley, NHS Autonomy and Accountability
On 12 July 2010 Andrew Lansley landed his bombshell White Paper, ‘Equity and excellence: Liberating the NHS’, on Parliament. It signified the biggest assault on the NHS in its history, with collateral damage extending throughout the 1.7 million people working in the service and the sixty million citizens who depended on it. Two months earlier the Coalition had been forged, when David Cameron had failed to deliver an overall majority to his disappointed party, and made a deal with Nick Clegg in order to form the government. In the published Coalition agreement, a promise had been made to the electorate: ‘We will stop the top-down reorganisations of the NHS that have got in the way of patient care.’
The events leading up to the public launch of Lansley’s White Paper were noteworthy, to say the least. His plans for the NHS, which anticipated five years’ worth of legislated changes, had been very well developed by the time of the general election, but they suddenly needed to be adapted, at short notice, to take account of the newly formed Coalition with the Lib Dems. The early discussions between the top ministers from the two parties hardly touched upon health, which few thought would be a contentious area. For instance, Nick Timmins, in his short book for The King’s Fund, Never Again?, quotes a senior Liberal Democrat as saying: ‘We [the Coalition] didn’t have any other discussions about the NHS of any kind during those few days. We didn’t discuss reform. I think if I’m honest the assumption probably was that the NHS was going to be an area where a degree of stability would be expected. NHS reform hadn’t been one of our lead areas.’1
The job of producing a more detailed ‘programme for government’ for the Coalition agreement was given to Oliver Letwin, who, before the election, had been Conservative Shadow Chancellor of the Exchequer and had predicted publicly that the NHS would not exist five years after the Tories got back into power. In 1988 he had co-authored Britain’s Biggest Enterprise: Ideas for Radical Reform of the NHS for the Right-leaning Centre for Policy Studies think tank. He was joined in the Coalition project from the Lib Dem side by Daniel ‘Danny’ Alexander MP, soon to become Chief Secretary of the Treasury. Lansley was sidelined while Letwin and Alexander slugged it out, trying to reconcile two fundamentally different approaches.
Health ‘proved one of the more difficult areas’. Neither Letwin nor Alexander had any expertise in health policy, nor were special advisers with relevant experience assigned to the topic. The result was a compromise that may have pleased the protagonists but looked like an unworkable mess to anyone who understood health policy. Lansley later said, ‘I did have conversations with Oliver Letwin from time to time, but to say they covered every aspect …’ showing that he felt sidelined.
In any case, when the language was finalised and the programme published on 20 May 2010, Lansley ‘didn’t like it’. Now officially Secretary of State for Health, he set out to work on a fudge with his department. Eventually, by envisioning a number of bold moves – including abolition of the primary care trusts (PCTs) and strategic health authorities (SHAs) in England – they came up with what Lansley felt was a workable plan – the plan presented in the White Paper for the first time that July day.
The White Paper provoked much surprise when it landed in Parliament, though perhaps it should not have. On 27 February 2010, at the Tories’ spring conference, Lansley had given a keynote speech to rally the troops. He promised his audience that he would put a stop to the ‘endless, pointless bureaucracy, costing the NHS billions extra every year’. Still, the idea of abolishing the PCTs and SHAs had not been mooted in any pre- or post-election talks or policy papers.
NHS staff were already ‘reconfiguration weary’, and this would entail yet more upheaval, yet more time and energy spent on a process of change to NHS structure rather than to patient care. Lansley may have taken aim at ‘pointless’ bureaucracy and billions in taxpayer’s money, but analysts would subsequently calculate the cost of his reforms to be around £1.6 billion. As Professor Chris Ham wrote in the BMJ: ‘A reorganisation that promised to reduce bureaucracy and streamline structures … achieved exactly the opposite with consequences yet to be fully understood.’2
During the following summer and autumn, numerous organisations and individuals set about digesting the White Paper and its supporting documents. This was the ‘consultation’ period to air out the suggestions put forward by Lansley and the Department of Health. The initial wave of responses varied widely.
Despite the radical nature of the plans, some welcomed a new approach to delivering healthcare. Yes, there was reason for concern over such a large reorganisation, as well as whether GPs were up to the challenge of controlling the commissioning of health care. Doctors would, in effect, through the clinical commissioning groups (CCGs) and the NHS Commissioning Board (NHSCB), be handed a £70 billion budget. The private sector, in particular, saw distinct possibilities for an expanded role in health care. Julia Manning is a former Conservative parliamentary candidate and chief executive of 2020health.org, a not-for-profit organisation that researches better health practices. She said: ‘We see real opportunities as a result for private contractors and Social Enterprises to become much more involved in providing and facilitating NHS services.’ Others voiced more caution, and acknowledged the ambition of the White Paper reforms. In a BMJ editorial, Chris Ham, chief executive of The King’s Fund, remarked, ‘Lansley came into office as a man with a plan.’ Ham added, ‘backing general practitioners … is both radical and risky’.
The British Medical Association’s (BMA) response was still more muted. Its council chairman, Dr Hamish Meldrum, wrote to the medical profession on 30 July 2010: ‘The BMA believes that it is absolutely vital that we critically engage with the consultation process. Government has clearly indicated its overall direction of travel and non-engagement in the consultation period would greatly increase the risk of bringing about the adverse outcomes that many of you fear.’3 Most doctors understood why the BMA wished to engage with the consultation process but little did they know that this ‘engagement’ would continue well past the consultation period.
The BMA’s GP Committee accepted the main thrust of the White Paper, despite significant opposition to its contents among the nation’s GPs. GP magazine had conducted an initial survey on the White Paper and two-thirds of respondents opposed the plans to force practices to join commissioning consortia. One of the committee’s senior members, Dr Beth McCarron-Nash, urged GPs to keep an open mind: ‘There is more detail to come. What we end up with could be very different from what we are reading now.’4 She was right, but not in the way she would have wished.
Over six thousand responses were sent in, from organisations ranging from 2020health.org to the YWCA.5 A small number of responders saw Lansley’s plans as an attempt to ‘commercialise’ the NHS, a project that, as we have seen, had started decades earlier in various guises. Unite, the UK’s largest trade union, called the White Paper an ‘untested, expensive exercise in political dogma’. Labour’s Shadow Secretary of State for Health Andy Burnham declared that the reforms outlined in the White Paper would ‘unpick the very fabric of the NHS’. According to the Socialist Health Association: ‘The Coalition have not learned the lesson which it took Labour ten years to learn – that reorganisation is a diversion not a solution.’ Yet, most of the initial responses during the consultation period were mainly concerned about the huge upheaval for the NHS, and the strain that would be put on doctors taking on the responsibility for health care commissioning. Less notice was taken of the future role that might emerge for commercial health care providers.
Later, once the dust had settled, Chris Ham would call this out as one of the decisive points in the process: ‘Although many organisations … focused their attention on plans to give general practices a major role in commissioning … these changes are of secondary importance compared with the radical extension of competition.’6
On 15 December 2010 the Department of Health published ‘Liberating the NHS: Legislative framework and next steps’,7 which outlined the government’s response to the consultation submissions. A series of fact sheets were also issued, covering ‘economic regulation’, ‘local democratic legitimacy’ and ‘commissioning for patients’ – the latter of which noted: ‘Key decisions affecting patient care should be made by healthcare professionals in partnership with patients and the wider public, rather than by managerial organisations.’ Little attention had been paid to the many and legitimate concerns that had been raised during the consultation; instead, there was lip service. It quickly became clear that Lansley was not in listening mode, and that storm clouds were gathering.
Some proposals rang alarm bells. Most of the press focus was on the decision to put maternity commissioning under the control of local GP commissioners and not the national NHS Commissioning Board as originally planned. Lansley remained confident about his chances for passage and stated ‘our reform agenda is on track’.
The next month, on 19 January 2011, Lansley’s Health and Social Care Bill was presented to Parliament. It ran to 354 pages and 281 sections.8 It was littered with elements that had not been in the manifestos of either party in the Coalition Government before the general election. One might easily come to the same conclusion as Michael Portillo: the Tories deliberately hid their NHS proposals from the public. ‘They did not believe they could win an election if they told you what they were going to do because people are so wedded to the NHS’, as Portillo told Andrew Neil.
The enormity and complexity of the proposed legislation caused considerable disquiet and it was very hard to understand what the bill would actually mean for practising doctors and their patients. Its contents demanded close and informed scrutiny, in particular around the role of the Secretary of State to provide health care and the effect it would have on how EU law applied in future, notably in relation to competition. Unfortunately, large organisations such as the British Medical Association, the Trades Union Congress and the Royal College of Nursing, with significant legal resources behind them, never undertook a full forensic analysis of the whole bill – something that could have shown from the outset how damaging it would be to the fabric of the NHS.
Much of this work was done by individuals, foremost among them Professor Allyson Pollock, public health physician and professor of public health research and policy at Queen Mary, University of London, and Peter Roderick, a public interest lawyer. Their work provided much of the information needed for parliamentarians and others to expose the true meaning behind the complex legal language in the bill. Further analysis of the legal implications was carried out by the online community group 38 Degrees. If other groups had supported them in exposing the reality behind the bland assurances, Lansley’s plans might well have stalled.
As mentioned in the introduction, in January 2011 the independent and highly respected BMJ wrote a damning editorial entitled ‘Dr Lansley’s Monster’, which was accompanied by an illustration of Frankenstein on the front cover.9 The BMJ called the government ‘mad’ to be embarking on such changes and challenged their democratic legitimacy.
Early in the journey towards legislation, one Tory MP spoke out repeatedly, criticising the bill: Dr Sarah Wollaston, a GP who became Conservative MP for Totnes in 2010. She remarked that the Lansley bill was like ‘tossing a hand grenade’ into local health structures. In March 2011 she said: ‘These proposals mean the NHS would go belly up, not top down’, and claimed that key elements of the reorganisation were ‘completely unrealistic and doomed to fail’. She went on: ‘It is no use liberating the NHS from top down political control only to shackle it to an unelected economic regulator … There is a risk that commissioning consortia [are] “doomed to fail” and will hand over their commissioning to the private sector.’
Wollaston, who sits on the Health Select Committee, said she would have liked to have sat on the committee examining the government’s health proposals in detail. But, she explained: ‘When I suggested to the whips that I would like to table amendments, I effectively signed myself off the list of candidates. The intention appears to be to get the bill through committee unscathed with no amendments, unless suggested by the government.’ She was unwilling to ‘turn up on time, say nothing and vote with the government’, as previously instructed by a party whip.
Later, Wollaston claimed that many of her concerns had been addressed after Lansley’s bill was ‘paused’ and recommendations by the Future Forum were accepted into the draft legislation. It is difficult to avoid the conclusion that pressure had been brought to bear on her. At any rate, near the end of 2011 Wollaston was making helpful comments in support of the legislation, such as, ‘it is better to focus on where we go from here rather than how we could have arrived by a less contentious route’; and, ‘This is not the privatisation of the NHS.’ She had less to say in the final, and more crucial, six months of the Health and Social Care Act’s passage through Parliament. In 2012 she was one of the votes that made the bill law.
At an early stage the DoH asked local GPs working in fledgling commissioning groups to apply for what the department called ‘pathfinder status’ – an indication that they were getting ready to work as a full-blown CCG – in order to demonstrate that the bill had clinical ‘buy in’. The intention was that this status would also show that these GPs would receive extra support from the NHSCB. In reality, such support never materialised to any great extent, and these pathfinder groups were used primarily as a demonstration that doctors supported the bill. Nothing could have been further from the truth, but the DoH’s and the politicians’ spin machine was put into motion, with Lansley and Cameron repeatedly mentioning these pathfinder groups in their speeches as justification of their claim that the legislation had clinical ‘buy in’.
The Liberal Democrats had previously acted as the Tories’ ‘human shield’ when pushing through policies that were unpopular with the electorate. They were to play a similar role during the debates over Lansley’s bill, indeed proving absolutely vital to its passage through both houses of Parliament.
In early 2011, however, some members of the Liberal Democrat Party started to become concerned about the ramifications of Lansley’s White Paper. (For more on this, see Charles West’s chapter in this book.) They were unhappy that there had been no mention of the huge reorganisation involved, either in the election manifestos of the Coalition parties or, more importantly, in the post-election Coalition agreement. These concerned parties could point to the fact that the White Paper had been thrust upon a largely unsuspecting Westminster, a shocked NHS and a bemused public.
Foremost among them were Evan Harris, a doctor and former Lib Dem MP for Oxford West and Abingdon, and Baroness Shirley Williams, Lib Dem member of the House of Lords. Williams summed up her feelings thus: ‘I had an instinct if you like. I just felt very deeply that this was something that was completely misconceived.’10 She went on to call Lansley’s bill an act of ‘stealth privatisation’, stating: ‘I can’t support the coalition plan for the NHS. Why we should dismember this remarkably successful public service for an untried and disruptive re-organisation amazes me.’11 Over the coming year, Williams’s views on the Health and Social Care Bill would change dramatically, however, and with significant implications.
Harris for his part espoused a hopeful view of the Lib Dems’ influence, stating in 2011 that: ‘for the government as a whole and the Conservative party in particular, the biggest problem they face is the opposition of the Liberal Democrats to significant parts of the changes, expressed in very clear terms overwhelmingly at our party conference in Sheffield on 12 March’.12
At the Lib Dem spring party conference in 2011, several prominent members expressed unease, causing some panic in Whitehall. The Tories knew they needed the Lib Dems on side in order to achieve the arithmetical majority in the Commons when Lansley’s bill went to vote. Something had to be done to try and assuage the concerns of their Coalition partners. The bill was in trouble.
Senior Lib Dems threatened that unless changes were made the bill would not get through the Lords. Lib Dem peers might feel more obliged to heed the concerns of the grass roots, and independent peers could not be whipped into line. The bill was tottering dangerously, with Nicholas Timmins reporting that there was even talk of killing it off.13
Cameron stepped in. During a discussion in the Cabinet room between Cameron and Nick Clegg, much seems to have been ironed out. ‘Andrew Lansley is now increasingly sidelined,’ said one Whitehall source, ‘you have now got David Cameron listening to David Nicholson, so Andrew Lansley is less relevant.’
Clegg rejected the idea of killing off the bill, claiming it would be worse for the NHS to abandon it altogether than to proceed with an amended bill. In addition, Lansley had set moves in place to enact the changes before the legislation was passed, so that existing structures were already being broken up, and many people had left jobs. It made little difference now that Lansley wasn’t centre stage, but things could still derail.
The leaders of the Coalition knew a potential political disaster when they saw one. Their answer was to call for a ‘pause’, and to inform Lansley to get on with it.
Consequently, on 4 April 2011 Secretary of State Andrew Lansley stood up in the House of Commons and made an announcement that surprised many: he would be ‘pausing the bill’ at a ‘natural stage in its passage through Parliament’.14 He continued: ‘I can therefore tell the House that we propose to take the opportunity of a natural break in the passage of the Bill to pause, listen and engage with all those who want the NHS to succeed, and subsequently to bring forward amendments to improve the plans further in the normal way’.
At the time, many commented that there was nothing natural in pausing a bill as it passed through Parliament. But the pause went forward.
Lansley needed someone to head up the group – the Future Forum – who would ‘listen’ during this pause. He chose Professor Steve Field, former chair of the Royal College of General Practitioners (RCGP), part-time GP in Birmingham and well-known supporter of the bill. The rest of the group comprised forty-four carefully hand-picked members.15 A number of meetings were set up across England to ‘engage’ with the public and the profession. Online ‘live debates’ were held and there was much discussion in various forums.
While the private sector did not have direct representation at the Future Forum, they did not need to fear. Their interests were being well taken care of by others. Notable among the members of the Future Forum was Sir Stephen Bubb. As chief executive of the Association of Chief Executives of Voluntary Organisations, Bubb represented the views of not-for-profit providers of health care. He had already shown the direction of his recommendations in a blog promising ‘radical proposals’. In May 2011 he wrote: ‘I went to a good meeting today with the NHS Confed[eration] Partners Network, an umbrella body for all the independent providers in the health service. For political reasons, the private sector were excluded from the Future Forum, so in my area I feel it’s only right to ensure I hear their views. And very balanced and sensible they are. I still hold to the view that what matters is what is delivered, not who delivers it.’ Another member was David Worskett, head of the NHS Partners Network, whose members included the private health companies General Healthcare Group, Virgin Care, Harmoni Ltd, BUPA, Care UK and UnitedHealth UK.
When a member of the audience at one of the listening exercises asked ‘How are private health companies’ views being reflected on the Forum?’ Worskett replied: ‘The role of alternative providers is exactly the same for-profit and not-for-profit providers and we do have a number of absolutely wonderful not-for-profit providers represented on the Forum and, of course, Stephen Bubb, the chief executive of ACEVO is leading the competition work stream. I think I want to say publicly that I’m enormously grateful to him for the extraordinary competence and energy with which he is doing that.’ Worskett went on to lament the fact that: ‘The route [for the views of the private sector] is indirect [but] I don’t think anybody needs worry with Stephen in full cry that the angles aren’t being addressed.’
The BMJ also revealed lobbying by Worskett for his colleagues in the private health sector.16 In a briefing paper published by the Social Investigations blog, Worskett wrote: ‘Several members [of the NHS Partners Network] have used their own “routes” to gain access to key players within No 10 and have been able to report back that the stance there is supportive, though there is low awareness of exactly what the independent sector does or could do … I did brief the new No 10 health policy adviser very fully, and indeed “cleared” our materials with him. I have had several other “stock-take” phone conversations with him. We are certainly on No 10’s radar.’ Worskett explained that DoH ministers and senior civil servants had given him ‘every signal possible that they understood and sympathised with our concerns and shared our view of the key issues and priorities’. Assessing the tactics to be used during the remaining weeks of the pause, he added: ‘We need to keep as close as possible to No 10 over the next few weeks … As we move into the next phase we will need to shift our efforts onto the politicians – those the government listen to, and those who will play key roles in the House of Lords when the bill gets there.’
The same briefing paper, the BMJ said, also showed how individual members of the Future Forum were targeted so that the private sector would not be blocked from expanding its reach in the case that the Forum’s final report to the Prime Minister recommended watering down the legislation. Again, quoting Worskett’s own words: ‘If the report by the NHS Future Forum to the Prime Minister went the wrong way for us, retrieving the position would be almost impossible … Therefore the tactical imperative had to be to influence the Forum members directly and to concentrate other activity on those who themselves would have most influence on the Forum.’ Worskett explained that he held ‘lengthy’ meetings with Stephen Bubb, who was serving as chairman of the Forum’s working group on choice and competition. In those meetings, Worskett said: ‘We agreed on the approach he would take, what the key issues are, and how to handle the politics.’
Some questioned Bubb’s impartiality, notably John Pugh, the Lib Dem MP and spokesman for health, who commented: ‘In particular, the role of Bubb in chairing the listening exercise on competition is seen by many as a clear conflict of interest. Asking Sir Stephen to sum up on competition rules is as neutral as asking Simon Cowell to tell us about the merits of TV talent shows.’
Quite how much listening took place during this period was unclear. At one Future Forum ‘listening event’, Bubb was heard to say in response to an awkward question on the role of competition in the NHS, ‘I am not listening to that as I don’t agree’ – not quite the listening that many members of the public and NHS professionals might have been seeking. The response also flew in the face of Bubb’s own comment on the DoH’s website: ‘So people can be assured when they’re making comments to us we will listen to what they say.’ It’s no wonder that many who attended meetings, and those who weren’t able to find one to attend, felt that the entire exercise was a sham.
While the listening sessions were mostly going to plan, there was some bad news for Lansley. On 13 April 2011 the Royal College of Nursing (RCN) annual conference met in Liverpool and in an unprecedented move voted 99 per cent in favour of a motion of ‘no confidence’ in Lansley’s handling of the NHS reforms. The RCN are traditionally seen as more conservative than other nursing unions, so this was a major blow. The vote made numerous media headlines that day. In the aftermath, Lansley chose to meet with a small, hand-picked group of sixty RCN conference delegates when he visited the meeting after the vote. To the amazement of many in attendance, he apologised for not having got his message about the reforms across well enough to gain their support.
Then on 10 May 2011 he found some relief. A group of forty-five ‘CCG GPs’ wrote a letter to the Telegraph expressing their ‘wholehearted support for the Coalition’s health reforms’.17 The letter, which had been orchestrated by Dr Jonathan Munday, a GP in Westminster and chair of the Victoria Commissioning Consortium, was used repeatedly by Lansley to demonstrate that there was support for the bill. Munday was a former Conservative councillor and mayor of Kensington and Chelsea. After criticisms began to pour in about the supportive nature of the letter, he said he was no longer a member of the Conservative Party and had ‘nothing to do with Tory Central Office’.
Despite this show of support, Lansley could not keep the alarm bells from ringing. Around this time it emerged that a senior adviser to Cameron had made some unguarded comments a few months earlier to a conference in New York City. Mark Britnell, a former director of commissioning at the DoH, had begun working for KPMG, a management consultancy that had already made millions from advising the NHS and was set to make much more if Lansley’s bill was enacted by Parliament. At the New York meeting, Britnell had reportedly said: ‘GPs will have to aggregate purchasing power and there will be a big opportunity for those companies that can facilitate this process … In future, the NHS will be a state insurance provider, not a state deliverer.’ He then added: ‘The NHS will be shown no mercy and the best time to take advantage of this will be in the next couple of years.’ Later, in an article for the Health Services Journal, he suggested that providing treatment entirely ‘free at the point of care’ was not necessary to the health service, and that ‘top-up payments’ would be beneficial to the NHS’s own health. ‘It appears that countries that have a mixed blend of public and private provision, co-payment and social insurance are possibly more capable of providing resilient healthcare systems’, Britnell wrote. He provided no evidence for his assertion, however. In a response to the article, Dr Jonathon Tomlinson, a London GP and long-time campaigner for the NHS, said: ‘This is hardly surprising, and a salutary warning about the ideology guiding NHS reforms.’
On 13 May 2011, just prior to filing the Future Forum final report with Cameron, Clegg and Lansley, Steve Field mentioned in an interview with the Guardian that the report would suggest that Monitor’s primary duty – to enforce competition between health care providers – should be scrapped. Instead, he said Monitor should be obliged to do the opposite, by promoting co-operation and collaboration and the integration of health services.
The Future Forum report, published on 13 June 2011, made sixteen key recommendations. Most of these were seen as a sop to the Lib Dems, designed to procure support for Lansley’s ailing bill and to allow it to proceed on its parliamentary journey. The suggestions still kept the focus on the need for ‘choice and competition’, but this was downplayed by saying that competition would centre not on price but on quality. Many were able to read between the lines to understand that this would pave the way for the private sector to have a much bigger say in bidding for NHS contracts. ‘Any Qualified Provider’ status would remain in place. More controversially, the duties of the Secretary of State with respect to the NHS would be amended, though the government insisted that the Secretary of State would remain ultimately accountable for the NHS.
Clegg boasted to a private meeting of his MPs and peers that their demands had been ‘very, very handsomely met’. Cameron bolstered this view with his statement: ‘I think in politics you have to be big enough to admit when you don’t get it right, and that’s exactly what I’ve done.’ Clearly, the Conservatives felt they might be taking back the agenda, and it was rumoured that the influential backbench Conservative 1922 Committee had ‘cheered Lansley to the rafters’ when he announced that the bill was still on track.
Not all Lib Dems were convinced. In June 2011 the Guardian’s Wintour and Watt blog revealed a leaked email from Evan Harris in which he told his party colleagues that: ‘There is a view that we should keep quiet, say we had a victory and hope no one notices this stuff – but I think that is not realistic. The plans remain bad for the NHS, go beyond the coalition agreement and we must insist on the sovereignty of [our] conference on major issues not in the coalition agreement.’ But, as shown by voting figures in subsequent months, this unease did not translate into real opposition.
On 21 June 2011 the pause was ended and the bill went back to the Commons. Simon Burns MP, the Conservative Health Minister, opened the debate at the dispatch box. Responding to an open letter of complaint signed by 85,000 people, Burns called the members of the campaigning group 38 Degrees, ‘zombies’.18 He further commented: ‘As Professor Steve Field said in the Future Forum report: “It is time for the pause to end.” Professor Field is not alone in the opinion that now is the time to move forward and to enable proper and thorough scrutiny of those parts of the Bill that will change but without delaying the Bill’s passage beyond what is absolutely necessary.’
Voices began to call for urgent action on the legislation. The Academy of Medical Royal Colleges, in its official response to the Future Forum report, said: ‘We hope the Government will now accept the Future Forum’s recommendations in full and move swiftly to make the changes to the Bill and the proposals that are required.’ The King’s Fund also emphasised the need to avoid unnecessary delay: ‘The “pause” has served the NHS, its staff and patients well.’
The other side was regrouping as well. On 9 October 2011 a protest organised by the campaign group UK Uncut took place on Westminster Bridge just outside Parliament. An estimated two thousand health workers and activists attended the protest, causing significant disruption to central London but attracting little if any attention from the media.
The tortuous progress of the bill through Westminster next moved to the House of Lords. There, on 12 October 2011, Lord Owen made a significant attempt to derail the bill. Originally trained as a doctor, and a former Labour Health Minister in the 1970s, Lord Owen was by now a cross-bencher in the Lords, and had already described the bill as ‘fatally flawed’. Using a mechanism to refer the legislation to a Select Committee for detailed analysis, Lord Owen argued for further scrutiny of the powers of the NHSCB, the role of Monitor and the duties of the Secretary of State. In the ensuing debate, the ‘reforms’ came under sustained attack from many of the one hundred peers who queued up to speak.
Among them were fertility doctor and television presenter Lord Winston, who denounced Lansley’s bill as ‘unnecessary and, I’m afraid to say, irresponsible’. Labour’s deputy leader in the Lords, Lord Hunt of Kings Heath, intoned: ‘The scale of concern, the scale of mistrust amongst the NHS and amongst the public is greater than I have ever known it before.’ But former Conservative Health Secretary Lord Fowler claimed it would be ‘unacceptable’ for peers to block the legislation. He warned: ‘Unless we are careful, we will leave the health service in uncertainty about the future. We will leave them in suspended animation. I don’t believe that anyone who is committed to the National Health Service wants to see that.’ And the emollient Conservative Lord Howe attempted to calm fears that the extension of market mechanisms which the bill threatened would undermine the founding principles of the NHS: ‘The Bill does not do anything that may or could lead to the privatisation of the NHS.’ Reform was needed, he said, adding: ‘Money will no longer grow on trees in the NHS, we have to think outside of the box.’
Lord Owen’s amendment failed to pass, by a margin of 262 to 330, with 193 Tories voting against it, joined by 80 Lib Dem peers. Baroness Williams, who had been a leading Lib Dem opponent of the health bill, did not vote.
Williams, once thought of as a staunch defender of a publicly provided NHS, had turned down an opportunity to take a stand against the bill. Many people felt let down by her failure to vote at this crucial stage. She repeatedly spoke out for the NHS but when it came to voting would fall in line and follow her Lib Dem colleagues in supporting the Conservatives. She had said only a few weeks earlier:
I am not against a private element in the NHS, which may bring innovatory ideas and good practice, provided it is within the framework of a public service – complementary but not wrecking. But why have they tried to get away from the NHS as a public service, among the most efficient, least expensive and fairest anywhere in the world? Why have they been bewitched by a flawed US system, which is unable to provide a universal service and is very expensive indeed? The remarkable vision of the 1945 Attlee government – of a public service free at the point of need for all of the people of England – should not be allowed to die.19
In a last attempt to derail the bill, Lord Rea, a Labour peer and former practising doctor, tried to deny it a second reading, but his move failed by a margin of 220 to 354. Indeed, even Williams voted against Lord Rea’s motion, further disappointing her supporters and opponents of the bill.
The Guardian’s social affairs editor, Randeep Ramesh, noted: ‘The Lib Dem leadership, which has already signalled amendments will be accepted, have now dipped their hands in the blood of the NHS bill. It might be a stain that is hard to rub off.’20
During this period, one doctor chose a particularly poignant way of highlighting the dangers of Lansley’s bill. Dr Clive Peedell, a consultant clinical oncologist in Yorkshire and a member of the BMA Council, was an active opponent of the bill from the outset. Between 10 and 15 January 2012, Peedell and his consultant colleague Dr David Wilson ran the 160 miles from the statue of Aneurin Bevan in Cardiff to Richmond House, London, the headquarters of the DoH, the equivalent of a marathon for each day. At times the going was very tough. A stop in Witney, Oxfordshire, David Cameron’s constituency, provided an opportunity for a rally in front of local people in order to highlight the dangers of the proposed Health and Social Care Act – and encouragement. When Peedell and Wilson arrived at Richmond House on 15 January, a huge crowd greeted their speeches (and painful blisters) with many cheers.
Other organisations had come forward to oppose the bill. These included the NHS Consultants’ Association and the NHS Support Federation. Keep Our NHS Public (KONP), a group founded by campaigners to resist the commercialisation of the NHS, also campaigned throughout the entire period, and 38 Degrees organised petitions and sought public support for a legal opinion about the bill, with 3,652 members donating money for this effort at an average donation of £15. It was enough. In the summer of 2011 38 Degrees procured an opinion from solicitors Harrison Grant and specialist barristers Stephen Cragg and Rebecca Haynes.21 Their reading was that the bill would remove ministerial accountability for the NHS, in effect allowing politicians to wash their hands of any decision making or problems when it came to the health of the nation’s citizens. The NHS, the legal experts said, would be opened up to UK and EU competition law, meaning that contracts would have to be offered to the private sector at the same time as they were offered to the NHS – a significant change from the long-standing practice of giving public providers an initial bidding period. The costly and complex procurement procedures appeared to favour large multinational companies, which were more likely to have the resources to submit tenders as compared to smaller NHS or public sector charities. It amounted to a damning indictment of the bill, but it did not seem to attract any attention among Coalition leaders.
A debate had been secured by the Labour front bench in the House of Commons for 13 March 2012 in response to a petition, entitled ‘Drop the health bill’, which had been launched on the HM Government’s e-petition website by NHS campaigner and GP Dr Kailash Chand.22 When petitions on the HM Government site attract more than 100,000 signatures, Parliament will consider debating them, and this petition, with the backing of 38 Degrees, collected 179,459 signatures.
The subsequent debate was heated. Labour health spokesman Andy Burnham announced: ‘I think that Government Members are misjudging the mood of the country, and particularly of health professionals, who have not given a knee-jerk political response to the Bill but have given it careful consideration since it began as a White Paper and then proceeded on its tortuous path through Parliament. They have come to the conclusion that it is better, even now, to abandon it and work back through the existing legal structures of the NHS rather than proceed with the new legal structure and all the upheaval that that entails.’
Lansley responded with an empty reassurance: ‘There is nothing in the Bill that creates a free-for-all. There is nothing in it that creates a market of that kind.’
Chris Skidmore, Tory MP, quoted Professor Julian Le Grand of the London School of Economics, a former senior policy adviser to Tony Blair, when he addressed his fellows in the House: ‘With respect to the NHS bill, it is important that even those who generally prefer to rely upon their intuitions should avoid muddying the waters by accusing the bill of doing things that it does not, like privatising the NHS; and that all those involved should acknowledge the peer-reviewed evidence demonstrating that its provisions with respect to public competition … are likely to improve patient care.’
When the vote was finally taken, the ‘Stop the bill’ motion lost by 260 to 314 votes.
Meanwhile, the government persisted in claiming that the problem lay not in the legislation but in the way it had been presented to the medical professions and the public. Lansley was criticised for being a poor communicator. It was the medium, not the message. In the House of Lords Tory Earl Howe, a hereditary peer and former banker as well as a Health Minister, made a revealing comment on 13 March 2012: ‘The Government are undoubtedly fighting a battle to convince the medical community of the merits of the Bill, a battle that we have so far not won.’ But the urbane peer had for once got it wrong. It was not the salesmanship that the public didn’t like, it was the contents of the package, and no amount of marketing skill would alter that.
Further debates occurred in the Lords, culminating on 19 March, when there were calls to make public the Risk Register relating to the bill. This document – a standard way of assessing planned new laws – addresses concerns with their potential impact, of particular importance in the case of the NHS, which by definition deals with matters of life and death. Many campaigners had asked for the Risk Register to be released, but to no avail. A request under the Freedom of Information Act had even been instigated by then Shadow Health Minister John Healey but the request had been vetoed by the government – only the fourth time this had occurred in a decade. This was despite a judge-led information tribunal ordering the DoH to release the document. Andy Burnham said that the veto decision was ‘a major step backwards towards secrecy and closed government’. The public just assumed that release of the document would confirm that the warnings from doctors, nurses, midwives and patients were echoed in private by civil servants.
Lord Owen tried again to use the democratic process to bring the Risk Register to light, putting forward a motion asking for the legislation’s progress through Parliament to be halted until it was published. A typical intervention came from cross-bencher Baroness Murphy, who had worked as a professor of psychiatry of old age. In the debate, she said: ‘The risk register is a complete red herring and we all know that this is an attempt to delay the implementation of the policies in the Bill.’ It later transpired that Baroness Murphy is a former non-executive director for Monitor, the body that was already set to oversee the foundation trusts and that would be the economic regulator of the new open-to-all health care market.
Former BMA president Lord Walton had been an outspoken opponent of the bill, but he said he could not back Lord Owen’s push to have the Risk Register released. Among other things, Lord Walton said that the amended bill was much better than it had been when first introduced. ‘It is time to give this Bill a third reading’, he commented. Given his previous stance, his contribution to the debate could not be easily dismissed.
The Owen motion lost by 213 to 328 votes. The Lib Dems lined up behind their Tory counterparts and none backed Lord Owen. Instead 73 Lib Dem peers voted with the Conservative-led Coalition to block any further delay to the progress of Lansley’s bill. The public and most politicians still didn’t know what risks were associated with the bill, though the independent Information Commissioner thought they should know. Once again, Baroness Williams failed to vote on this crucial motion.
With the last hurdle passed, the final debate in the Lords began mid-evening. There were many impassioned contributions. Lord Dubs, a Czech-born Jew who had fled the Nazis during the Second World War, stood out with his statement:
My Lords, I shall speak very briefly as the House wants to move to a vote. I support this amendment and would like to pay a tribute to my noble friend Lady Thornton for the work that she and her team have put into this. Without the backing of a government department, they have performed heroically and very effectively … I want to give only one personal reminiscence. The National Health Service started on 5 July 1948. I was a child in hospital on that day; I was quite ill in Stockport Royal Infirmary. The consultant and his team came; in those days one either had to stand to attention or lie to attention when the consultant came with the matron and the team of junior doctors. Momentarily, he stopped at the foot of my bed and I said, ‘Are we going to celebrate? Are we having a party?’ He asked, ‘What are you talking about?’ I was the only child in the ward, so it was cheeky of me but I said, ‘Well, the hospital is ours today – isn’t it wonderful?’ He walked on without saying anything, but it was a momentous day and I never thought that, 64 years later, I would be here at Westminster and lamenting what has happened to our beloved National Health Service. Let me conclude by quoting Nye Bevan, who said, ‘The NHS will last as long as there are folk … with the faith to fight for it.’
The vote came at 8.20p.m. Andrew Lansley and his deputy, Simon Burns, were watching intently from the gallery, wondering if their bill would succeed. The result came a mere fourteen minutes later by a margin of 269 to 174 in support of the Health and Social Care Bill. Baroness Williams voted in favour of the bill. Many would see this vote as the ultimate betrayal of the NHS. For all the fine words that Williams had uttered in the months leading up to this moment, these activists felt that she had failed them when it most mattered.
With the battle in the Lords over, the bill was returned to the House of Commons on Tuesday, 20 March 2012, for the final push. Ahead of the debate, Tory and Lib Dem ministers reportedly ‘banged’ the table at a Cabinet meeting to mark the impending passing of the NHS reforms into law. Labour used this day to say it would repeal the bill if it formed the next government. The bill had received more scrutiny than any bill in living memory and had been amended more than one thousand times, though the vast majority of amendments were trivial.
That evening three debates were heard. During each the major concerns about the bill were reiterated. These concerns included the increased use of the private sector, allowing foundation trusts to undertake more private work, the role of the Secretary of State in the NHS being diminished, the overbearing and powerful influence of Monitor and the NHSCB, and the massive reorganisation of the NHS. At 10p.m. the vote was held. The Conservatives voted as one and the Liberal Democrats followed the Conservatives through the lobby like sheep. The only exception was Greg Mulholland, Lib Dem MP for Leeds North West, who opposed the bill. The final vote was lost by 324 votes to 236.
The Health and Social Care Act would now be sent to Her Majesty Queen Elizabeth II for royal assent, which was given on 27 March 2012. Members of Unison, which represents more than a million public sector workers, held a minute’s silence outside Parliament in protest at the legislated changes.
The arrogance of those in power was neatly summed up by one Department of Health civil servant: ‘Everybody is a bit bored with talking about the processes and structures.’
Would Aneurin Bevan have been bored talking about the process of the bill and the structures of the NHS? Or would he now be turning in his grave?