"The NHS will last as long as there are folk left with the faith to fight for it"
Aneurin Bevan

Thursday, 2 February 2012

Bill Amendments

Last night I read through all the government's amendments: not the most thrilling evening I've ever had. I don't think there is much that is contentious in there other than what is missing (ie there's no amendment to get rid of the autonomy clause and none to make the Secretary of State responsible). It did highlight to me that I know nothing about the NHS Information Register and so over the next few days I'll try and find out what it is.

Rather more interesting are the non-government amendments and the following three in particular.

Clause 1

Page 2, line 12, at end insert—
"(4) The provision of the health service is a service of general economic interest within the meaning of Article 106 of the Treaty of the Functioning of European Union."

Clause 78

Leave out Clause 78

Clause 98

Page 109, line 32, at end insert—
"( ) requiring the licence holder to hold indemnity, for the services provided, which will remain valid for the lifetime of patients treated,"

I am assuming that the amendment to clause 1 is to try and prevent the NHS being subject to EU competition law (or is it? my reading of the Article seems to suggest the opposite, but I'm no lawyer). Surely you cannot simply legislate to say that you are exempt? Whether the NHS is subject to EU competition law surely depends on the behaviour of the NHS? If you don't want it subject to EU competition law then you should not introduce a market.

Clause 78 is one I've not read before and it basically says that the Competition Commission must review how competitive NHS providers are. Of course, if they find that a provider is not competitive (eg it is the only hospital in an area) then presumably the Competition Commission can say that there has to be competing providers and maybe break up a hospital trust so that parts compete with each other. Be very scared of this clause because it could cause huge upheavals for years. The Lib Dem peers are right to want to get rid of this damaging clause.

The final amendment of the three (from the crossbench peer, Baroness Finlay) suggests that NHS services should exist as long as the lifetime of patients, and to ensure this, "licence holders" (ie providers) must provide an indemnity (presumably a bond) that will fund the service if the provider goes out of business. Private providers will not like this, and I am sure the government won't either, but it very clearly says that the most important thing is the patient, not the provider.


  1. 38 Degrees sought legal advice on the threat to the NHS from competition law after the Future Forum report. From this I suppose it will appply and that neither the Bill nor Monitor can prevent this. See an introduction by Sion Williams, November 30th, and the legal advice.
    Brief conclusions in relation to procurement law and Brief conclusions concerning competition law are at s. 45 and ss. 82-83. See also s. 40.
    http://blog.38degrees.org.uk/2011/11/30/save-our-nhs-bill-in-the-lords-competition-briefing/ AND http://www.scribd.com/fullscreen/63555647

    1. I read it when it was published, but there are some lawyers who refute it. The problem is that until it is tried in a European court no one will know, they may take the attitude that there is enough social solidarity in the NHS to make it exempt. I don't want it to get there for fear of the court taking another point of view.

      If you are interested in competition have a look at clause 78 of the Bill. This says the Competition Commission must do a review of the NHS (solely on competition issues) by 2019 and every 7 years after that. It also says that the NHS *must* accept their recommendations. I think this will lead to a top-down re-org every 7 years.

  2. richard - Like many, I oppose market competition and note that since the Listening exercise, it has been played down especially by liberal MPs. But Lansley said the bill’s fundamentals had been retained and I cannot see how competition law could not apply. Surely your reference to clause 78 confirms this?

    When I asked my MP about the Risk Register that DH is withholding despite a ruling from the Commissioner, he cited DH webpage ‘Health and Social Care Bill 2011: combined impact assessments’ at http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsLegislation/DH_123583

    On page 51 of the second pdf file, dh_129917, September 2011, is a section Competition Policy and Enforcement. Pages 51-53 confirms NHSCA’s view that Lansley is determined to introduce market competition into the NHS.

    I suspect the phrase clinical commissioning is used to suggest cooperative provisions led by doctors at various levels as of old. But market reforms were introduced by Kenneth Clarke and covertly extended by New Labour. Although commissioning is costly and evidence of overall benefits is lacking, I am sure Lansley wants to go all the way, albeit more slowly.

  3. Yes, you're right. The government added stuff into the Bill about "integration" to try and rest fears about competition, but it is there. On p51 of the impact assessments it mentions PRCC. These are the rules set up by New labour and are regulated by the Co-operation and Competition Panel (the co-operation here refers to providers co-operating with competition rules - seriously!). The CCP are effectively a rubber stamp for competition, but crucially, it is chaeper for a private provider to complain to them than to use the courts. The CCP is being subsumed into Monitor.

    Incidentally, you've read the impact assessments doc, does it read to you like a document that assesses the impact of the policy?

  4. richard – Of the three files on the DH website, I have read all the first, about half of the second and none of the third. Some of the main pages in file two are scanned pictures which suggests someone was in a great hurry!

    I found them more like propaganda; strong on benefits but weak on costs. And I missed mature understanding about how the proposed changes would work. Much is known about providing long term healthcare for large populations on limited budgets.

    Over recent decades, our politicians have become enthralled by free markets and competition as if competent management, emulation and subsidiarity, and O&M and R&D could not better help responsible professionals to improve. And they want to drive wages and pensions down though this causes recessions.

    I can’t get Reply to work. And the clock is eight hours slow!

  5. Amendment above shows govt trying to legally change purpose of health activity in UK to make it “economic undertaking” rather than “social activity”.

    FENIN case important as shows EU says universal health is social activity, not economic.

    FENIN mentioned in Roy Lilley “Pink” email: 9 October 2012:


    EU says FENIN means what you do with what you buy determines whether it is “economic activity” (c.f. going to war, giving Christmas presents not business transactions)

    Also mentioned here:


    NHS Confed EU briefing 2009 “What do EU competition rules mean for the NHS?”

    This says: if can prove it costs more for NHS to use a private provider than it would have cost NHS for same job, then this is illegal state aid to private company.

    PFI springs to mind.

    Also mentions FENIN and Altmark case (C-280/00) as important in setting out rules. Says NHS can ask OFT for advice and if NHS did this, might expose it to litigation. No wonder Tories want to get rid of OFT.