The Health and Care Bill

‘When things begin accelerating wildly out of control, sometimes patience is the only answer. Press pause.’ 
Douglas Rushkoff

It barely seems it, but a decade ago the health and care system (or the bit of it that gets really excited by parliamentary processes) was in the middle of ‘the pause’ in April and May 2011. Fast forward to present day, and another Health and Social Care Bill has been confirmed in this week’s Queen’s Speech and is expected to be introduced early in the new Parliamentary session. Has the government learnt the lessons of the last big legislative upheaval in the NHS?

The Health and Social Care Bill was introduced to implement Andrew Lansley’s reforms to the structure of the NHS and to public health. They were the long-held vision of the new Secretary of State, having been formed in opposition, and set out in super-fast speed in a White Paper only two months into the new coalition government.

But the Bill soon ran into serious difficulties – with MPs, with peers in the House of Lords, with professional groups across the NHS – and in April 2011, Andrew Lansley announced a pause to the Bill. A listening exercise followed, carried out by a newly formed NHS Future Forum of 43 experts, chaired by Professor Steve Field. The Future Forum in the end recommended more than 2,000 changes to the Bill, and the Bill eventually passed into law. For those readers wanting a deeper dive into the experience of 2011–12, then Nick Timmins’ Never again? is the tour de force of the period.

The process was so bruising that it has been pretty much impossible for the Department of Health and Social Care to even consider legislation in this space. Over the years since, Number 10 has seen NHS legislative reform as highly controversial and has left well alone. Until now. For me, there were three main lessons from the pause: number 10 needs to understand the reforms, key stakeholders need to be on board, and any reforms should seek to simplify the complexity of the changes. The key question now is: have they been learnt for the forthcoming Bill?

Does Number 10 really understand the reforms?

It’s clear that one of the issues in 2011 was that Number 10 didn’t really understand what the Bill was intended to do, and therefore hadn’t clocked the potential political issues. This was partly a result of the style of Number 10 at that time, with the Prime Minister in much more of chairman of the board role than a chief executive, leaving a lot of freedom to departmental Secretaries of State. It was partly due to the compromises that were inevitable in a coalition, meaning this wasn’t the original vision, but a variant of it. And finally, the Secretary of State had been in the shadow role since 2004 – a lengthy tenure in role, which meant his technical knowledge of the system was far, far greater than that of the centre of government.

... there must be a genuine question as to whether they have had the bandwidth during the Covid-19 crisis to really interrogate the proposals fully.

The current proposals are not as far-reaching or, for the most part, as controversial as the Lansley reforms, which suggests Number 10 may have learnt from the past. However, there must be a genuine question as to whether they have had the bandwidth during the Covid-19 crisis to really interrogate the proposals fully.

Are stakeholders on board?

What quickly became apparent in 2011 was that while stakeholders may have supported individual parts of the Bill, there was little commitment to the overall picture. It’s here – on stakeholder support – that arguably there is the biggest difference from 2011. NHS England  and NHS Improvement has now twice engaged and consulted on proposals to the current legislative framework, and have given recommendations to the government of their preferred approach to legislation. So, the majority of the proposals expected in the Bill when it is published will be a result of direct requests from the sector. That’s a strong foundation to weather any parliamentary storm.

Some of the proposals expected to be in the Bill... have not originated from the sector at all, but from Whitehall.

But there are limits to this. Some of the proposals expected to be in the Bill – particularly those around extended powers for the Secretary of State over the NHS and arms-length bodies, and over local NHS service reconfigurations – have not originated from the sector at all, but from Whitehall. These proposals have not had the same long gestation of public debate and discussion within the system and it is therefore not surprising that at the moment support is limited and much more caveated, with real concerns about ministerial interference in clinical and operational matters.

Has the complexity been simplified?

Among the complexity of the proposed changes, is there a clear narrative about what is changing and why that can be held on to?

One other striking similarity between 2011 and 2021 is that there is a good deal of complexity in both sets of reforms which make them hard to understand for people who aren’t living and breathing the detail of them. This gives scope for the proposals to easily be misunderstood. The reforms in 2011 were complicated because they were so vast and changed so much – as the infamous ‘you could see it from space’ comment demonstrated. 2021 is complicated in a different way. Not in terms of its scale, but because it’s aiming at system-working and this is inherently more complex in itself, with real limitations to what legislation can achieve when it is culture and behaviours that will determine the success of the new arrangements. Among the complexity of the proposed changes, is there a clear narrative about what is changing and why that can be held on to?

With a majority of 80, the government may well feel it can push reform through the House of Commons. But the House of Lords has proven to be a challenging chamber for health legislation in the past and there are signs to expect the same again. Certainly, the government’s super-fast timetable, with implementation expected in April 2022, suggests it thinks it can clear parliamentary hurdles with ease. It would do well to learn the lessons of the past if it wants to avoid getting tripped up.