URGENT: Save the NHS Now! Legislation Enforcing Privatisation Will Be Passed in a Month Unless We Act


UPDATE 7.30pm, Feb. 25: The campaigning group 38 Degrees has now launched its own official petition calling for a debate on the provisions for implementing enforced competition in almost all NHS services, which the Tories had been hoping would pass in a month’s time without even being noticed. There appear to be no depths to which these butchers of the state will not sink. Please sign this and share it as widely as you can. It already has nearly 20,000 signatures, and the target is 60,000 by the end of today. Note: This petition is in addition to the one launched by Charles West, mentioned below.

Where is the outrage in the mainstream media?

For the past week I have been receiving messages via email or on Facebook from concerned friends and/or organisations warning me that the government is sneakily pushing through new legislation which will force all Clinical Commissioning Groups — the GP-led practices, which, from April, will be responsible for 80 percent of the NHS budget — to go through a marketplace for all new NHS service contracts.

As the campaigning group 38 Degrees explains in an urgent new petition, regulations relating to section 75 of the wretched Health and Social Care Act (Andrew Lansley’s NHS privatisation bill, which was passed last year) “require virtually all health provision to be carried out in competitive markets, regardless of the wishes of either local people, GPs or local Clinical Commissioning Groups. They contradict assurances that were given by health ministers during the passage of the Act that it did not mean the privatisation of the NHS, and that local people would have the final say in who provided their NHS.”

The silence in most of the mainstream media regarding these plans — in the BBC, for example — has been deafening, although today, the Daily Mirror has become involved, with an article entitled, “Tories’ hidden privatisation plan revealed,” and on Friday, in the Guardian, Polly Toynbee’s contribution was an informative article entitled, “The Lib Dems must not stand for any more lies over the NHS,” in which she noted how NHS dissent over the Health and Social Care Act was only quelled through public assurances from ministers that there would be no enforced privatisation of services, which “seemed convincingly cast-iron.”

Now, however, the quiet release of the regulations for the Health and Social Care Act “shows how far the act does the reverse of what ministers promised. Commercialisation and competition is written into its key section 75, opening up virtually all the NHS to public tender in a market supervised by Monitor,” the Independent Regulator for NHS Foundation Trusts, established in 2004. Toynbee adds, “Secondary legislation is rarely challenged — but this is a final chance for parliament to strike out the obligation of clinical commissioning groups (CCGs) to advertise almost every service to any bidder under EU competition law.”

She also notes:

From the start the plan was misrepresented to the public “as putting GPs in the driving seat”, free to commission best services for their patients. The health department was at it again this week, announcing more commissioning groups approved: “All 8,000 GP practices in England will be members of a CCG, putting the majority of the NHS budget in the control of frontline clinicians for the first time.”

Clare Gerada, head of the Royal College of GPs, calls that “disingenuous”, since all GPs are legally forced to join, yet only a minority of CCGs are led by GPs. Most are not involved, she says, with “barely time to do their day job”. She is shocked by the section 75 requirement for every service to be tendered out and advertised on a national NHS website. However satisfied GPs may be with local NHS services, if anything is not put out for tender Monitor can step in to enforce it. As the bill went through parliament, Monitor’s role was amended from “promoting competition” to “preventing anti-competitive behaviour” — a change in grammar, not in law, repeated in regulations. That’s what the act is for.

With the NHS so severely threatened, and on such a short timescale (the regulations will be approved by March 31, unless there is opposition in Parliament), it is hugely important that those of us who care about the NHS act now.

So please, take action NOW and do the following three things:

1. Sign and share the 38 Degrees petition, “call[ing] on both Houses of Parliament to ensure the NHS Competition regulations (SI 257) made under the Health & Social Care Act 2012, are subject to a full debate, and vote, on the floor of both Houses of Parliament, and that they are defeated or withdrawn.”

2. Ask your MP to take action. Send them the following message, or, of course, write your own letter, or amend it as you see fit:

I feel very strongly that the latest attack on our NHS under section 75 of the Health and Social Care Act urgently needs to be stopped.

We need to preserve our NHS free at the point of need for future generations.

Could you please organise with other MPs to sign an Early Day Motion to address this at the earliest opportunity?

3. Cut and paste and email the following letter to the Lords Secondary Legislation Scrutiny Committee by this Thursday, February 28:

Secondary legislation under Section 75 of the Health and Social Care Act 2012

I notice that the Lords’ Secondary Legislation Scrutiny Committee will be discussing the regulations laid by the Government under Section 75 of the new NHS Act 1 at their meeting on 5 March.

I write to request that the Committee send these regulations for reconsideration. The reason is that there is a significant disjunction between the public statements of ministers and the content of the regulations.

Ministers said:

Andrew Lansley MP: “There is absolutely nothing in the Bill that promotes or permits the transfer of NHS activities to the private sector.” (13/3/12, Hansard)

Andrew Lansley MP: “I know many of you have read that you will be forced to fragment services, or put them out to tender. This is absolutely not the case. It is a fundamental principle of the Bill that you as commissioners, not the Secretary of State and not regulators – should decide when and how competition should be used to serve your patients interests.” (12/2/12, letter to Clinical Commissioning Groups)

Simon Burns MP, Minister of State for Health Services: “It will be for commissioners to decide which services to tender …to avoid any doubt — it is not the Government’s intention under clause 67 [now section 75] that regulations would impose compulsory competitive tendering requirements on commissioners, or for Monitor to have powers to impose such requirements.” (12/7/11, Hansard)

Lord Howe: “Clinicians will be free to commission services in the way they consider best. We intend to make it clear that commissioners will have a full range of options and that they will be under no legal obligation to create new market.” (6/3/12, Hansard)

Nick Clegg: “That’s why I have been absolutely clear: there will be no privatisation of the NHS. The NHS has always benefited from a mix of providers, from the private sector, charities and social enterprises, and that should continue … It’s not the same as turning this treasured public service into a competition-driven, dog-eat-dog market where the NHS is flogged off to the highest bidder.” (26/5/11)

The regulations

The regulations break these promises by creating requirements for virtually all commissioning done by the National Commissioning Board (NCB) and Clinical Commissioning Groups (CCGs) to be carried out through competitive markets regardless of the will of local people. They contain legal powers for Monitor to enforce the privatisation spontaneously or at the request of private companies which lost bids.

They would also make it impossible to fulfil some of the key thrust of the Francis report recommendations.

According to David Lock QC, the regulations as a whole have the effect of closing down the current option of an in-house commissioning process, even if local people wish it. This option has been taken in a number of cases, including since the passage of the Act. Ministers have confirmed that at the present time such arrangements are legal and would not give rise to challenge under EU Procurement law.

Regulation 5: Awarding a contract without competition can, effectively, only be done in an “emergency”, a much narrower restriction than suggested in the parliamentary debate.

Regulation 10: This makes whatever Monitor judges to be an “unnecessary” restriction of competition illegal. It thus effectively closes down the current option of one state body (i.e. the NHS Commissioning Board or a Clinical Commissioning Group) merely making a new arrangement (not contract) with another — i.e. an NHS Trust.

Regulation 12: This forces commissioners to use the market to meet waiting time considerations, in contravention of assurances offered to CCGs during the passage of the Act when they were told they would have discretion and could also consider quality issues.  This regulation also ignores the summary of the Department of Health’s own consultation which highlighted that waiting time considerations should not be used to override quality considerations.

Part 3, Regulations 13-17, covering Monitor’s powers: The sweeping (and time unlimited) statutory powers given to Monitor enable it to decide when the CCG has breached regulations (Regulation 14), to end any arrangements the CCG has come to and to impose their own (Regulation 15) – including the criteria governing selection of suppliers, and more fundamentally, the decision about whether to use competitive methods like tendering and AQP (Any Qualified Provider) at all. Under these regulations Monitor will have sweeping statutory power to enforce (as yet unseen) guidance, whereas the current guidance is not legally binding.

In summary, therefore, there is a contradiction between the intention of the Act as expressed by ministers and the consequences of the regulations.

The regulations need to be reconsidered and rewritten.

Note: The photo at the top of this article is from Flickr, from my set of photos of a rally to save Lewisham Hospital on February 15, 2013. For further information on the plans outlined above, please see this Open Democracy article, and this briefing by Keep Our NHS Public.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed — and I can also be found on Facebook, Twitter, Digg, Flickr (my photos) and YouTube. Also see my definitive Guantánamo prisoner list, updated in April 2012, “The Complete Guantánamo Files,” a 70-part, million-word series drawing on files released by WikiLeaks in April 2011, and details about the documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and available on DVD here — or here for the US). Also see my definitive Guantánamo habeas list and the chronological list of all my articles, and please also consider joining the new “Close Guantánamo campaign,” and, if you appreciate my work, feel free to make a donation.

38 Responses

  1. Andy Worthington says...

    Dr. David Wrigley writes that the letter to the Lords must be submitted TODAY (Feb. 25) and not by Feb. 28 as initially thought: http://drdavidwrigley.blogspot.co.uk/2013/02/section-75.html

  2. Andy Worthington says...

    On Facebook, I also posted the following message about an hour ago:

    SAVE THE NHS! Please sign this, my friends, if you’re a UK citizen or resident. It’s a 38 Degrees petition to Parliament calling for a vote on regulations requiring competition in all aspects of the commissioning of NHS services, which will be sneaked through unless we demand that MPs wake up and demand a debate on the provisions. The petition currently has 11,190 signatures. Please share this information widely!

    I’m glad to note that, in one hour, the petition got 600 signatures, and is now on 11,791.

  3. Andy Worthington says...

    Ruth Gilburt wrote:

    done x

  4. Andy Worthington says...

    Carol Brown wrote:

    Thanks Andy – done, & have started emailing to friends too.

  5. Andy Worthington says...

    George Kenneth Berger wrote:

    I am reposting this, Andy. Cannot hurt.

  6. Andy Worthington says...

    Please also write to your MP via Write to Them: http://www.writetothem.com/

    I feel very strongly that the latest attack on our NHS under section 75 of the Health and Social Care Act urgently needs to be stopped.

    We need to preserve our NHS free at the point of need for future generations.

    Could you please organise with other MPs to sign an Early Day Motion to address this at the earliest opportunity?

  7. Andy Worthington says...

    George Kenneth Berger wrote:

    I am pretty sure you don’t have to be British, or a resident of the UK, to register your feelings. I certainly will, now. I urge anyone with well-formed critical notions to write, since this will affect the entire EU and a form of this has affected the Netherlands, where the green light has been lit by the Dutch government a while ago.

  8. Andy Worthington says...

    Thanks, George. I agree. If people feel strongly enough, they should write from wherever they are. After all, the corporations out to privatise all our health services don’t care about national boundaries!

  9. Andy Worthington says...

    Jennah Solace wrote:

    Andy, Thanks for bringing this to our attention.

  10. Andy Worthington says...

    Beebs Tweet wrote:


  11. Andy Worthington says...

    You’re most welcome, Jennah. Glad to oblige. I note that the petition now has 13,438 signatures.
    Thanks also, Beebs. Good to hear from you.

  12. Andy Worthington says...

    38 Degrees has also just launched a petition instigated by the organisation itself (the other petition was promoted by an individual, Charles West). This one already has 19,935 signatures and they’re aiming for 60,000:

  13. Andy Worthington says...

    It now has 26,500 signatures! That’s nearly 7,000 signatures in the last 25 minutes! WOW!

  14. Andy Worthington says...

    It just hit 30,000 signatures – currently running at 14,000 signatures an hour!

  15. Andy Worthington says...

    It’s now on 35,845! 5,000 signatures in the last half an hour!

  16. Andy Worthington says...

    43,333 signatures now! That’s 7,500 in the last half-hour. When I first read that the target was 60,000 for today – and it was on less than 20,000 at the time – I didn’t see how it would be possible. Now I know – because people care deeply about the NHS, as well they should. Congratulations to everyone who has signed. You give me hope! Now I need to know that, if there was an action to demand an end to the privatisation, you’d turn up in public too!

  17. Andy Worthington says...

    It’s now on 53,765. That’s nearly 18,000 in the last hour. So the target was 60,000. Can we revise it upwards to 100,000 now?

  18. Andy Worthington says...

    65,308 signatures now. I’m so impressed. I wonder if the mainstream media has noticed, and will see fit to comment on it. Or perhaps there won’t be room in the newspapers or on the TV news because Princess Kate has a new dress or something.

  19. Andy Worthington says...

    And the latest count is 77,159! The target has been revised up to 100,000, so let’s try and get to that by breakfast and then keep going. The government needs to know how many of us care about the NHS, and how much we care!

  20. Thomas says...

    The small groups cannot de facto compete with big companies and win, any more then I could win a hand to hand fight against Vladimir Putin; they won’t have the money to win any bids and the big companies will carve up and ruin the NHS. And once it’s done I can’t see *New* Labour repairing the damage. This selfish government has gone further then Thatcher and ruined the NHS so the fat cats can get fatter.

  21. Andy Worthington says...

    Yes, I agree, Thomas, with the broad outline of what you say, but my feeling is that the treatment of the NHS will come to define whether or not the people of Britain took it all lying down, and let a government of greedy millionaire sadists destroy the state provision of services – everything good achieved since the dark ages of pre-enlightenment Victorian Britain, in other words – or whether they started to fight back, and created a new people-centred political movement. Time will tell …

  22. Andy Worthington says...

    David Nicholl wrote:

    Even the Royal College of Physicians is calling for urgent meetings with Government asap….in brief, a lot of senior people are uber-pissed off at the Government at this

  23. Andy Worthington says...

    That’s very good to hear, David. The more those in the NHS fight back, the better! Otherwise, this scumbag government WILL destroy everything.

  24. Andy Worthington says...

    Jennah Solace wrote, in response to 18, above:

    Ha! Celebrity fashions are interesting – they help us to dream or momentarily escape our dreadful realities. But facing health problems and having no NHS to turn to, will cause many such distress that even fantasies will not be enough of a distraction!

  25. Andy Worthington says...

    Thanks, Jennah. Yes. The most powerful voices I hear at protests are from those who remember what it was like before the NHS was established in 1948. I watched a great programme once about the birth of the NHS, and how the Labour government had budgeted an enormous amount for the first few years, to deal with all the people who had never been able to afford to visit a doctor. It was very moving, the story of how, for the very best of all reasons – the common good – millions of people had their long-standing health issues finally addressed.

  26. Andy Worthington says...

    The petition’s still going strong, by the way, and it’s now got nearly 122,000 signatures! Please keep signing and sharing!

  27. Andy Worthington says...

    The Telegraph claims that “New rules opening the NHS to more competition from private health firms are set to be withdrawn just two weeks after they were announced”: http://www.telegraph.co.uk/news/politics/9896186/Norman-Lamb-NHS-competition-rules-must-be-reviewed.html

  28. Andy Worthington says...

    Pauline Kiernan wrote:

    Signed. I have said a million times, the NHS is one of the GREATEST ACHIEVEMENTS IN CIVILISATION. We MUST NOT let it be destroyed. But where are the mainstream media. Where’s the Opposition? WHY isn’t this issue being brought before the public every day? WHY no interviews with people who remember what it was like to see unnecessary suffering and deaths because the family could not afford medical care? Oh, I’ve got to stop!

  29. Andy Worthington says...

    Eric Ross wrote:

    The NHS, which I enjoyed and campaigned in support of in the eighties, is also a model for healthcare reform in the U.S. This is a piece I wrote earlier in the month in Anthropology News:

  30. Andy Worthington says...

    Thank you, Eric, for that great article. I like the section about the importance of the founding of the NHS: “[A]s John Marks, a former chair of the British Medical Association (BMA) council, has observed, ‘Before [the NHS] healthcare in this country was a disaster, particularly if you were poor. The unmet needs were not known until the NHS started, and people who had been ill for years and years came forward for help because they did not have to worry about paying for it.’ The core transformative principle of the NHS was that medical treatment was free at the point of use.”

  31. Andy Worthington says...

    Jennah Solace wrote:

    Power to the people! (The voice – in combination with the truth – is a very, very powerful tool!)

  32. Andy Worthington says...

    Thank you, Jennah. And thanks also, Pauline. I missed your impassioned plea for the NHS earlier.

  33. Andy Worthington says...

    The petition now has 162,682 signatures! Please keep signing and sharing.

  34. Andy Worthington says...

    Eric Ross wrote:

    What I would like, at some point, Andy, is to be able to use this kind of effort to show the U.S. public how much the NHS means to people. This might help to overcome decades of prejudice and propaganda in the States against a national health care system!

  35. Andy Worthington says...

    Yes, that would be very powerful, Eric. I’m hoping to be working on a site that will pool information about the threat the NHS faces in the UK, which would also have some information about how McKinsey, KPMG and co. are pushing privatisation across Europe, and some information about healthcare in the US.

  36. Andy Worthington says...

    Eric Ross wrote:

    Let me know, if you think we can coordinate in any way. My campaigning for the NHS goes back to the early eighties when I was on the steering committee of the Public Health Alliance. But, I have lots of contacts now with progressive physicians here, as well. On the one hand, now, in the States, we’re beginning to get a movement toward some kind of “single-payer” system, but it’s inadequately informed about the NHS; on the other hand, along with general policies of austerity, Europe is being pushed to privatise state-funded health systems that need improvement that can only come about through state, not private interests. Clearly, the two struggles need collaborative political efforts.

  37. Andy Worthington says...

    Yes, absolutely, Eric. Let me see what happens and keep you informed.

  38. Andy Worthington says...

    The petition has now nearly reached 250,000 signatures – it’s on 243,987!

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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