Taking back control? The forthcoming white paper should be cautiously welcomed
The forthcoming white paper should be cautiously welcomed. While not perfect, these proposals to enhance political accountability are long overdue, writes Robert Ede.
On first impression, a government white paper on legislative reform may appear technocratic. But measures to enhance political accountability are of first-rate importance to the public – who are both the funders and consumers of health and social care services.
And that is why the leak of the proposals on Friday morning was the equivalent to a small bomb going off in the world of healthcare policy. Stakeholder reaction has been mixed (to put it mildly), with coverage over the weekend describing the document as “the biggest health reforms for a decade” but also “a reversal of controversial privatisation policies”. Many commentators have also questioned the timing – with the NHS still consumed by the pandemic response.
The leak was of a draft document, and therefore we should be careful in not interpreting its contents as finalised government policy. However, much in here has been advocated for by Policy Exchange and should be welcomed – both by those working in the NHS but also for the public who deserve a more accountable healthcare system. Not all readers will agree with this opening assertion, so let me explain.
The easiest way to look at this white paper is to divide it into two parts. A significant proportion of the document is an endorsement of the legislative proposals set out by NHS England prior to Christmas. These have already been assessed in the round by both the King’s Fund and the Nuffield Trust, who have pointed to the possible shortcomings and considerations when progressing with the establishment of Integrated Care Systems on statutory footing, the bringing together of national Arm’s Length Body responsibilities, and the removal of market mechanisms.
Then there is the rest. Broadly these can be summarised as policies which would enhance the ability of the health secretary to set the agenda. Not all explicitly relate to the running of the NHS – for example changes to the law which would allow the government to tighten the regulation of fast-food advertising and food labelling, and the fluoridation of water in England.
Whilst the last proposal intends to improve the nation’s oral hygiene, others would give ministers more teeth. This includes changes to the future status of the Independent Reconfiguration Panel, one of the three “distancing mechanisms”, alongside the National Institute for Health and Care Excellence, and the Co-operation and Competition Panel, which were introduced under Labour in the early-2000s. The IRP gives impartial advice to the health secretary on difficult service design issues which have been referred by a local authority – such as whether to close or merge hospital facilities.
Under the approach set out in this document, a local authority referral would no longer be required (given the possible conflict of interests that arise from the new ICS bodies). Ministers could then intervene sooner into the process without the need for the panel and help achieve a decision where there are contested views at a local level.
It is possible to see how this new power may be wielded when it comes to the reconfiguration of services within a footprint, addressing a possible democratic deficit in the ICS structure. The Nuffield Trust has already observed that trusts may find themselves conflicted between doing what is right for their own organisation and what might be in the best interests of the ICS as a whole. Seeking to strengthen the ability of ministers to achieve a resolution quickly to a local quandary should be welcomed, provided that the evidence to support each decision is made available to Parliament.
Change in mandate
The document also sets out changes to the mandate, which in its current form gives directions to the NHS in an annual letter from the secretary of state. NHS England is legally required to seek to achieve the objectives in the letter, but these usually number only a few pages and as Nicholas Timmins, expert watcher of many health reforms, has observed, few working inside the NHS or those outside of it pay much attention to these documents. The new approach will mean the department is not fixed in setting the mandate at the start of each financial year – meaning that its objectives can be removed or added to on a more regular basis, thus strengthening the powers of political direction over NHSE.
Linked to this is a proposal that would give ministers the ability to use secondary legislation to transfer powers between arm’s length bodies. This could – in the most extreme case – enable the abolition of NHSE through the removal (gradual or otherwise) of its powers. The white paper is clear that there are no immediate plans to action this – but it would place an important new tool in the armoury of the current (and future) health secretaries.
This is undoubtedly contentious territory. It will make the system more flexible and adaptive to political direction – but will this lead to greater uncertainty too, for a system where stability is already a precious commodity?
It is difficult to speculate about how this power could be used, but I would argue that this misses the point. What we should instead focus our energies on is debating whether having this degree of ministerial direction over the NHS is appropriate.
Direction and management are not the same thing. This white paper does not advocate for a return to Aneurin Bevan style day-to-day management of the NHS (where every bedpan drop was to reverberate around Whitehall). Instead, this signifies an attempt to rebalance towards political accountability.
It will ensure that as powers become increasingly consolidated within a singular arm’s length body, ministers can adapt structures and objectives to reflect the priorities of an elected government. Crucially, this is the current view shared by both major political parties. Labour’s recent National Policy Forum called for a restoration of accountability in the health service “underpinned by a duty on the secretary of state over health”.
Arrival in Parliament
This leak has put these proposals into the public domain – raw and unspun – a few days earlier than planned. In some ways, this may end up being beneficial to the government. The intention is to bring a bill forward as part of the Queen’s Speech later this summer, meaning that there will be no formal consultation, and seemingly limited opportunity for pre-legislative scrutiny by Jeremy Hunt’s select committee.
The Department of Health and Social Care can point to the extensive engagement exercise already undertaken by NHSE in justifying the timetable, but there will still be criticism that the reforms are being rushed through amid the warm glow of a successful vaccine rollout.
History suggests that efforts to push through legislation at breakneck speed do not work. The Lansley Reforms were first set out in a white paper published in July 2010, but famously had to be paused in 2011 for a “listening exercise” and only achieved Royal Assent in March 2012-20 months later. But if the Lansley Reforms argued passionately against political oversight, then this document is the case for the defence.
When asked a few years ago, the public said that the role of health secretary is the second most important position in a prime minister’s cabinet.
Asking the same question again in 2021 would probably elicit an even firmer response. In the eyes of the voters, the health secretary is one of the great offices of state. Yet the current system, formalised under Lansley, has meant that the health secretary has limited ability to direct the service she or he is responsible for. The proposals within the draft white paper could help address elements of that – and therefore deserve a cautious welcome.
This piece was first published in Health Service Journal.