Author: Gavin Barker
Gavin Barker argues that as policy-makers debate yet another reorganisation of health and social care we are not paying attention to more fundamental issues.
Is The Health and Care Bill just another party-political football? Or the symptom of a deeper malaise?
The Health and Care Bill which is now going through Parliament, is one of the most important pieces of legislation in the last decade. For many, this bill is seen as a Conservative-led assault on the NHS and there are sound reasons for such concerns. But if you only view this bill through a party-political lens, you are only seeing half the problem. The other half of the problem is a dysfunctional system of governance that enables dangerous and unaccountable legislation to pass unchallenged.
‘Governance’ is different from ‘government’. We are here talking about the legislative process underpinned by our ‘unwritten constitution’ whose lack of democratic safeguards permits any government of whatever political complexion, to ride roughshod over Parliament.
Before illustrating this with two examples from the Health and Care, I need to say something about our constitution.
A nation's constitution is the rule book for the state. It sets out the guiding framework about how power is exercised, by whom, and what its limits are. It describes the main institutions of the state and their relationship to each other; specifically, the relationship between the executive (government), legislature (House of Commons and Lords) and judiciary; and between central and local government.
Unlike other modern democracies whose constitutions are codified and clearly laid out in a single document, the UK constitution is a sprawling hotpotch of statutes, royal prerogatives, conventions, judicial decisions, and treaties found in multiple documents. Examples of constitutional documents include the Bill of Rights 1689, Parliament Acts 1911 and 1949, Human Rights Act 1998, the Scotland Act, Northern Ireland Act and Government of Wales Act 1998.
This makes our constitution more difficult to understand and much less accessible to the general public. Its opaque workings also make it easier for the government of the day to manoeuvre and manipulate the legislative process in ways that damage the democratic fabric. And that is exactly what is happening with this bill.
A defining feature of our constitution is its over-reliance on Constitutional Conventions that have no legal force, only the force of custom. Examples include: that the monarch acts on ministerial advice; or that all money bills originate in the House of Commons.
Another example is that any minister proven to have knowingly misled Parliament should resign - a convention that has been repeatedly broken by Prime Minister Johnson with no legal penalty or appeal to a third party such as a constitutional court. For to stress again, constitutional conventions have no legal force.
Of specific relevance to the Health and Care Bill is the Constitutional Convention that Ministers of the Crown are individually and collectively responsible to Parliament. In theory, Parliament holds the government to account by scrutinising and approving new laws - or amending and rejecting them if it so wishes. However, this convention is being increasingly circumvented by the misuse what is called ‘secondary legislation’, laws created by ministers under powers delegated to them in a bill (primary legislation). ‘delegated powers’ is the shortened term.
Such delegated powers are useful in amending routine administrative and technical regulations in a parliamentary bill (primary legislation) - for example updating a fine in line with inflation - but dangerous when they are used by ministers to create wide ranging laws.
Over time successive governments - and particularly this one - have laid before Parliament a succession of ‘skeleton bills’ which have been called ‘disguised legislation’ because it is not at all clear what their purpose is. These bills are more about ‘powers’ rather than ‘policy’ - powers that will be used by ministers at a later date to create laws. The Health and Care Bill has been described by more than one policy expert as “a particularly egregious example”.
That is a much harder question to answer than it should be and goes to the heart of the issues just touched on. In an article by Caroline Molloy of openDemocracy, she points out:
“Explaining that [what the bill does] effectively was beyond the health secretary, with the government’s own MPs reportedly baffled as to why it was undertaking a massive reorganisation of the NHS in the midst of a global pandemic.”
Separately both the House of Lords and the Hansard Society have expressed concern on a number of wide-ranging delegated powers that the bill contains. The bill itself runs to 244 pages setting out 155 substantive provisions and contains 156 delegated powers. The Bill therefore averages more than one delegated power per provision.
The Hansard Society Briefing on the Health and Care Bill has identified five delegated powers of particular concern. We will just look at two of them:
Integrated Care Boards (ICBs) will take on the NHS planning functions previously held by Clinical Commissioning Groups (CCGs) and are likely to absorb some planning roles from NHS England.
Clause 15 awards a special ‘Henry VIII power’ to the Secretary of State, so-called because these powers can be used to amend primary legislation. Under normal circumstances, any amendment to primary legislation requires a proper bill to be presented to Parliament for scrutiny. A Henry VIII power does away with the need for this completely.
This particular delegated power can be used by the minister to define the people for whom an Integrated Care Board has a core responsibility in terms of health provision - as well as those for whom an ICB no longer has a core responsibility. Couched in turgid legal language, the wording appears vague and inoffensive - but it is precisely this vagueness that allows a wide-ranging interpretation and application of ministerial power.
Extract from the bill:
(4) The Secretary of State may by regulations—
(a) substitute the following section for section 14Z31 of the National Health Service Act 2006 (as inserted by subsection (1) of this section)—
“14Z31 People for whom integrated care board has responsibility
(1) References in this Act to the group of people for whom an integrated care board has core responsibility are to the people who usually reside in its area.
(2) Regulations may create exceptions to subsection (1) in relation to people of a prescribed description.
The reference to “Regulations may create exceptions to subsection (1)” is explained in the Memorandum to the Delegated Powers (see para 145) by the Department of Health and Social Care as follows:
“The effect of such regulations would be that ICBs (Integrated Care Boards) would not have responsibility for certain people or cases that are otherwise usually resident in the area of the ICB….”.
In other words, the Secretary of State may choose to remove certain categories of patients from the obligation to provide medical treatment free at the point of need. They would need to pay for it instead. As the Hansard Society points out with reference to Clause 14 (now 15) on page 5:
“This power grants extensive discretion to the Minister but little detail is provided about when and in what circumstances the government envisages the power will be used. [Moreover] there is no requirement for the Minister to consult NHS England or the affected ICBs prior to making regulations using this power, even though such regulations may have nationwide ramifications for the NHS.”
Clause 70 aims to place collaboration rather than competition at the heart of how health care services are organised. But beyond that, it is not at all clear what the framework for procurement regulations might be. This lack of clarity has prompted fears among campaigners that where new services are being commissioned or substantially changed, contracts will be awarded to new providers without sufficient scrutiny, and this risks a repeat of the PPE contracts scandal.
The powers set out in the bill are sweeping. Clause 70 (1) and (2) simply say
12ZB Procurement regulations
(1) Regulations may make provision in relation to the procurement by
relevant authorities of—
(a) health care services for the purposes of the health service in England, and
(b) other goods or services that are procured together with those health care services.
(2) The regulations may, in particular, make provision in relation to—
(a) general objectives of procurement;
(b) procurement processes.
And further on, clause 70 (6) says
Before publishing guidance under this section, NHS England must obtain the approval of the Secretary of State.
The justification for these vaguely worded and wide-ranging powers is that, at the time of this bill’s passing through Parliament, there was insufficient time to develop a fully fleshed out procurement framework based on the consultation by NHS England.
The Hansard Society makes the obvious point that this lack of detail “inhibits parliamentary scrutiny of a critically important area of policy”. And the House of Lords Delegated Powers Committee scathingly observes: “We do not accept that the inclusion of regulation-making powers should be a cover for inadequately developed policy”. (see para 18 of their report).
In effect Bills such as these are the equivalent of asking Parliament to sign a blank cheque.
In theory Parliament does have some oversight of how delegated powers but these are token. Under the so-called ‘affirmative procedure’ where the active approval of delegated powers is required, The last time the House of Commons failed to pass an affirmative instrument was in 1978.
Under the ‘negative procedure’ delegated powers, no active approval is needed. They automatically come into effect as law unless either House stops (annuls) them within a fixed period after they have been laid - usually 40 days. And while any MP may table a motion to debate a particular delegated power, the government is under no obligation to find time for it to be debated. The House of Commons last did this in 1979 and the House of Lords in 2000.
About 80% of Statutory Instruments - the most common form of delegated power - are laid under the negative procedure.
The Health and Care Bill may be ‘a particularly egregious example’ but it is far from the only skeletal bill that sets out ‘powers’ rather than ‘policy’. The Hansard Society cites recent Acts for agriculture, customs, fisheries and immigration as giving broad delegated powers to ministers to create laws with little parliamentary oversight. Indeed, the most important legislative rules now in force are made through delegated legislation, rather than primary legislation. And it is the use of these powers and the lack of parliamentary scrutiny which has prompted Hansard Society to warn that this now represents “one of the most important constitutional and legal challenges of our time”.
The publisher is Citizen Network Research. The Troubling Health and Care Bill © Gavin Barker 2022.
Constitutional Reform, health & healthcare, England, Article