The Secretary of State will also continue to remain legally liable for the exercise of his functions. Thismeans that he could be the subject of a claim for judicial review by an affected member of the publicif he fails to carry out his statutory duty under the legislation. But his duty is only to do his best withlimited powers under this Act, mainly involving exhortation.There is therefore no way a Secretary of State could meet these legal requirements while “washinghis hands” of the NHS.The clause in the bill which removes the power of the Secretary of State to issue directions or todelegate functions to the NHS is a highly significant loss of accountability. The Government can notsay the Commissioning Groups and the Board are independent of the Government and autonomous,but also claim that the Government remains responsible. Their own documents – para 66 of theExplanatory Notes make this clear.EU Competition Law:38 Degrees claim the Health Bill will extend the scope of EU competition law in the NHS. Howeverthis is a red herring. Government legal advice and position is crystal clear – the Bill does not changeEU competition law.
This is an incorrect interpretation of the legal advice. In no place does it say that the bill changes EUcompetition law (that would be impossible anyway as EU competition laws are created at theEuropean level – not by the Department of Health). In fact the legal advice explicitly states that thebill does not and cannot change EU competition law. What the legal opinion does make clear is that the current position in terms of the application of competition law to the NHS has not beendefinitively determined. If it were tested, as a result of recent reforms, it is likely that competition law would already apply. Further, if the bill becomes law, it is even more likely that competition law will apply. By simply repeating the mantra that, “there is no change to competition law”, theGovernment has avoided any discussion of the potential far-reaching consequences if competitionlaw is found to apply to the NHS.
Instead we are maintaining the existing competition rules for the NHS introduced by the last LabourGovernment, described by the former Labour Health Minister, Ben Bradshaw, as “the NHS's firstever competition policy”, and giving them a clearer statutory underpinning.
It is worth noting that according to our independent legal advice by giving a “clearer statutory underpinning” the new plans would make it more likely that EU competition law would apply. Inaddition, as noted above, it is impossible for the Government to change competition law in any way,therefore it is not clear what putting the competition policy on a statutory footing actually achieves.
The body that Labour used to apply them, the Co-operation and Competition Panel will transfer toMonitor and retain its distinct identity.Monitor will be given concurrent powers with the Office of Fair Trading, to ensure that competitionrules can be applied by a sector-specific regulator with expertise in healthcare, thus shielding theNHS from the worst excesses of competition.