The Prime Minister has indicated that she is open to new legislation on the NHS if there is a consensus for change. Mike Birtwistle looks at some of the stumbling blocks to achieving this.

One of the most intriguing announcements in the Prime Minister’s speech on the NHS was that the Government is open to considering legislation (although Simon Stevens had already signalled as much in his response to the funding announcement at the weekend).

This should be a political no-brainer – after all, the existing legislative framework has few friends – and a very similar commitment was made in the 2017 Conservative manifesto: “If the current legislative landscape is either slowing implementation or preventing clear national or local accountability, we will consult and make the necessary legislative changes.”

And then, for the avoidance of doubt: “This includes the NHS’s own internal market, which can fail to act in the interests of patients and creates costly bureaucracy.”

So, contrary to some of the commentary in the past 24 hours, this is not a new direction of thinking from the Prime Minister. However, this won’t make it any easier to act upon. If anything, the fact that it has not been acted upon to date signals just how difficult piloting legislation through Parliament will be. Identifying what to legislate on or how to do it is a complicated task, and will be approached with trepidation. Questions which legislation may seek to address, and the challenges these questions raise, include:

  • Should there be a purchaser-provider split? Simon Stevens has spoken of his aims to dissolve the purchaser-provider split, but trying to put this in legislation is far from easy. For example, some of the NHS’s greatest and most famous institutions are foundation trusts which vociferously guard their independence. Will they be happy to be rolled up into health authorities, or will they be left as standalone, independent providers? If the latter, how will they fit into an organisationally-integrated NHS architecture? If the former, what happens to their often-substantial cash reserves?
  • Do NHS England and NHS Improvement need to be merged? It is without question that, if the Government had a free hand, NHS England and NHS Improvement would have been formally merged by now. The challenge is, of course, the bit of NHS Improvement formally known as ‘Monitor’ which (amongst other things) is a regulator of NHS England. Assuming that the Government does not fully abolish the purchaser-provider split, any legislation to make it easier for NHS England and NHS Improvement to merge will need to tackle the thorny question of who exactly polices competition between providers in the NHS if not Monitor, and how?
  • Does the NHS need a workaround to EU procurement and merger control rules? One of the bugbears of NHS organisations is the onerous burden they feel is placed upon them by the procurement and merger control rules which have their origins in EU law. It is possible to extract the NHS from the clutches of these laws by careful design (just look at Scotland), but this would require not just the formal abolition of the purchaser-provider split but a clear answer as to how those independent sector providers currently delivering NHS services will fit into the new world
  • What is the best structure for the NHS? One of the aims of legislation would presumably be to place onto a statutory footing the seven new regional health authorities currently being established, as well as the STP ‘footprints’. But there is a risk that legislating for these structures becomes unwieldy as parliamentarians load duties and functions onto them. What conditions should they focus on? Where should they seek advice from? How should they involve members of the public? Should their leaders be democratically elected? How many should there be? All of these questions would need to be answered
  • Should NHS England be independent? One of the risks of legislating is that doing so can quickly destroy consensus. Although there appears to be widespread support for NHS England’s independence at present, anyone reading Nick Timmins’s latest book will be in no doubt about how thin this support is across Whitehall and Westminster. Others too will remember the rows in 2011 over whether NHS England lacks accountability. Legislation will expose the question of NHS England’s independence to many parliamentarians already angry with what they perceive is a lack of accountability to them and their constituents

There may be a broad consensus about what is wrong with the current legal framework, but introducing detailed legislation to put it right will quickly encounter some entrenched interests who, given the parliamentary arithmetic (in both houses) and cognisant of the Government’s rather public difficulties in piloting through other legalisation, will have little reason not to resist.

This is before we even consider party politics. Even if there is a genuine consensus to be had amongst experts (which will be challenging to achieve), Labour considers the NHS to be its strongest electoral card and it is difficult to believe that this week’s announcement will change this. Will the Opposition be prepared to fold its hand on NHS reform in favour of bipartisan legislation? Realpolitik suggests otherwise.

Given the state of politics and parliament, it is remarkable that talk of new – and wide ranging – legislation should even be back on the table. However, it is easier for the Government to appear open to an abstract concept easier than it will be to actually pilot legislation through this Parliament.