How to navigate the political pitfalls of health legislation

Almost a year ago, I wrote for The King’s Fund that health legislation is best avoided. But, with the process of drafting and clearing the health bill now well advanced, the government’s focus – if it is intent on flicking this switch – should be turning to the task of passing it through parliament.

This process is not easy. The 2012 Health and Social Care Act, in which I was closely involved, is often cited unfavourably. Yet it was far from unique: the legislation of 2003 (still vivid for some of today’s Department of Health and Social Care (DHSC) advisers) and 1990 was similarly fraught.

The challenges in legislating are numerous, but understanding them will help the government anticipate and mitigate the risks.

First and foremost is that, in legislating, ministers cede control to parliament. In choosing what to debate and – if they wish – where to inflict defeat on the government, parliamentarians gain significant leverage. This is challenge enough when the governing party is docile. At this time of volatility, it is even worse.

If they are, therefore, to cede control, ministers would do well to cede as little as they can. This means keeping the bill as narrow in breadth – limiting scope, in the jargon – as possible, thus preventing parliamentarians from broadening debates into politically inconvenient territory.

The bill should focus solely on its headline aim: the formal abolition of NHS England (which I continue to believe can be achieved effectively without primary legislation). Even this narrow scope invites enough avoidable trouble, but adding topics such as safety regulation or data issues – as well it might – will only exacerbate it.

Ministers should also protect NHS operational priorities from parliamentary distraction. Legislative debates can set back performance and patient care if NHS leaders – including those busily right-sizing integrated care boards (ICBs) – become confused about the direction of travel. The NHS’s marching orders are for planning guidance, and the NHS’s national leaders should use this to give local leaders cover from the parliamentary to-and-fro, and allow them to concentrate on delivery.

The second difficulty is that ceding control to parliament invites action from parliamentarians on areas where ministers appear to be dragging their feet. Current potential flashpoints include maternity safety, but others – including restrictions on mental health spending and the lack of a respiratory Modern Service Framework – could flare up during the legislative process.

Ministers must do what they can before introduction to avoid such issues contaminating debate in parliament’s chambers – launching consultations, setting processes in motion, or making clear commitments to divert attention elsewhere. Even then, parliament will want to leave its mark on the health bill, and pressure on some issue is inevitable.

The third difficulty is that legislation locks politicians into particular positions – removing the freedom in which gifted communicators, such as Wes Streeting, thrive. It will prove impossible for Streeting to continue to claim – as he did recently – that the Labour Party should turn neither left nor right in response to recent by-election defeats, if his health policy is nailed down in legislation for all to see.

There is no third way for politicians in this situation – the room for ambiguity disappears. Are private providers to have a level playing field with NHS providers (meaning that the former can undercut the latter), or is the NHS the preferred provider – a retrograde step for reformers like Alan Milburn, surely? Does the health secretary want to have the Stalinist powers over the NHS that characterised the pre-2012 legislative framework, or is his commitment to devolution sincere enough to limit them?

Legislation forces ministers to choose, and good intentions count for little if the legislation permits otherwise. Opponents can be relied upon to highlight the most extreme interpretations, forcing ministers to defend them or perform U-turns – as happened with the debates on price competition during the 2012 Act.

There is precious little ministers can do to mitigate this challenge – other than anticipate where defeats may come, and introduce unnecessarily controversial measures as bargaining chips which can be conceded later in order to arrive at their preferred outcome. A concessions strategy such as this is vital for the successful passage of any legislation, but it is undoubtedly risky in the era of social media, when every provocation and retreat is magnified.

Ministers will find too that the arguments for and against particular policies were not won or lost on the day of the initial announcement. The government may have earned plaudits when they announced the abolition of NHS England, but this was when they were in total control of the narrative and benefitted from a media which, for understandable reasons (given the paucity of information from elsewhere), must take its lead from government press releases. The legislative process is not so compliant – not so much because it allows arguments to be relitigated, but that it allows arguments to take place at all.   

The fourth difficulty is the magnitude of internal political capital health ministers will find they are burning. Some of the U-turns forced upon them may necessitate extra funding, which the Treasury will resist out of fear of rewarding poor judgement. Money must then be found from elsewhere – potentially patient care. A major privatisation row may derail the government’s plans for private finance in social infrastructure, and if ministers in other government departments have to compromise on their policies to dig health ministers out of a hole they will not look kindly when health ministers come calling again.

Strong relationships between all levels of No10 and DHSC – Prime Minister to Secretary of State, private offices, special advisers, policy and communications teams – are vital for anticipating and managing such difficulties. But even when ties are good (hardly the case today), the relationship is an uneasy one.

The resulting loss of DHSC’s internal Whitehall clout – often invisible externally – has material consequences. The mitigations above can soften the damage, but only by avoiding legislation can it be averted entirely.

The fifth difficulty is the sheer amount of oxygen the parliamentary process gifts to the government’s opponents. Across a whole range of issues – staff pay, workforce training, workforce substitution, medical vs non-medical jurisdictions, patient safety, and more – outside interests will find receptive parliamentarians willing to scramble the legislation to further their cause. The resulting rows can be extraordinary and chaotic, but what is truly bewildering is the way in which the fires are suddenly extinguished the moment a bill passes into law. The oxygen vanishes, and the fights disappear.

It is as if a switch is flicked off. Ministers will therefore learn that they must expedite the legislative process to reach that switch as quickly as possible. The question is why they would flick it on in the first place.