Response to Guy Opperman Being lobbied by pressure groups is part and parcel of an MP’s life.

In my view, anything that gets people engaged in politics is a good thing. Many Pressure groups are single issue, but 38 Degrees has set itself up as a critic of the government on a number of issues. There is nothing wrong with this. But it is totally wrong to spin matters of fact matters that you know are simply not correct. On the issue of health and the upcoming debate on the Health and Social Care Bill that is exactly what 38 Degrees are doing. They have an agenda. They have commissioned legal opinion. That legal opinion does not say what they want it to say. So they have simply present [sic] the opposite view as fact, ignoring their own legal opinion. 38 Degrees commissioned two sets of legal advice due to concerns raised by members. The legal opinion of Stephen Cragg examined issues surrounding the “duty to provide”. The legal opinion of Rebecca Haynes examined issues surrounding procurement law and competition law. Both legal opinions together with executive summaries of these legal opinions were published on our website and made available to all. I myself know how amazing the NHS is. Twice I have had my life saved by it. In April I was diagnosed with a brain tumour. As a result I spent the best part of three weeks in three different hospitals and met dozens of doctors and nurses. I am now completely recovered. We are glad that Mr Opperman thinks the NHS is amazing. We hope that means he understands our and our members’ concerns over the proposed reforms, which have the potential to fundamentally change it. It is totally irresponsible when trying to use influence as a pressure group to distort the facts completely. Websites that do as 38 Degrees are now doing, in relation to this bill, are not taking political debate any further but hindering it. This approach is not in any way constructive to the legitimate debate as to how we reform and improve the NHS. The 38 Degrees web page states: “Earlier in the summer, 3,652 38 Degrees members from across the UK donated to pay for a legal team to get to the bottom of Andrew Lansley's plans for our NHS. For the last two months our independent legal team has been hard at work examining the government's NHS plans. This page summarises all they've found - it's grim reading. If you want to find out more you can download the entire legal advice in the right hand column. Once you've read it don't forget to email your MP and urge them to take action to save our NHS.” This sounds like the end of the world. As a former barrister I took the opportunity to read the counsels opinions. The opinions do not match what 38 Degrees are saying. Put bluntly, the 38 Degrees approach to the Health and Social Care Bill is heavily slanted. This is spin of the worst order. What is simply wrong is their misrepresentation of what their own published lawyers are saying. They are misleading their own members as well.

All our summary documents, along with emails about the campaign, press releases and blog posts (including this one) have been checked for accuracy and signed off by our legal advisers. Obviously a short summary can’t include everything raised in over 50 pages of advice – that is why we made the full opinions publicly available so people could look at the details for themselves. Assertion 1: Procurement: the assertion is made by 38 Degrees that there will be “costly and complex procurement procedures” whereby “The new commissioning groups will be subject to EU Procurement rules”. The implication is clearly that proper procurement is a bad and expensive thing and there will be a material and bad change. Yet examination of the opinion makes it clear that procurement rules already apply and were specifically put into law by the Labour Government in 2005-2006: the first line of the barrister’s opinion states: “The current procurement law contained in the Public Contracts Regulations 2006, which derives from European law, has always applied to NHS purchasing with the effect that any goods or services required by NHS health providers to enable them to provide health care themselves are subject to those Regulations” To strengthen the point at paragraph 32 the opinion states that: “The application of procurement law is not by any means new to the NHS” If there was any doubt that nothing will change paragraph 46, entitled the “Conclusion in relation to procurement law” states that: “Just as procurement law currently applies to NHS bodies engaged in purchasing, there is no question but that it will apply to the purchasing functions of Foundation Trusts, the Commissioning Board and consortia under the new Act.” So no real change on procurement, as it already applies. We do not claim that procurement rules do not currently apply – they do - our legal advice is clear on this. The important point in relation to procurement law is that, following the Bill, it will apply to increased numbers of commissioning bodies, the “commissioning consortia”. These consortia lack the necessary experience and expertise required to deal with, what counsel has called, “a complicated and developing body of rules and case law”. Our legal advice highlights the importance of giving this matter due attention, including the potential administrative and financial burden it will impose on the NHS: “The complexity of the regime and the administrative burden in complying with the rules (which are constantly evolving through a rapidly expanding body of case law) cannot be underestimated.” (para.37) Counsel summarised the problem that arises as follows: “The procurement regime is a complicated and developing body of rules and case law which gives rise to enforceable rights in the High Court and makes available draconian remedies and penalties for breach of the Regulations. The practical and financial implications of ensuring that goods and services are procured compliantly are considerable. There is a real risk that there will be a deficit of incumbent expertise in new consortia to cope with the regulatory burden. It appears however that the government has simply failed to grapple with the frontline issues in procurement, has wholly underestimated the

increasing rather than diminishing complexity int eh area and has had no or perhaps little regard to the administrative and financial burdens arising from the regime.” (executive summary) Furthermore, as the legal opinion points out, it is experienced commercial providers with deep pockets that stand to gain. “Given that there might be no or insufficient expertise in procurement in consortia, there is a very real risk that the functioning of consortia is compromised, at least initially, by the sheer regulatory burden involved, under threat of potentially draconian remedies available to unsuccessful bidders through litigation. Commercial providers on the other hand will already be familiar with and are likely to have had considerably more experience of the procurement regime.” (para.45) It is interesting that Mr Opperman does not deal with any of these arguments. Assertion 2: Competition: if you read 38 Degrees the word Competition is simply a new evil. The 38 Degrees spin on this is that the new Bill is “exposing the NHS to UK and EU Competition Law”. The study of their own barrister’s opinion simply refutes this: Paragraph 47 of the opinion makes the fair point that UK competition law derives from Tony Blair’s government: “UK competition law derives for the most part from the Competition Act 1998 and the Enterprise Act 2002. Domestic law competition law is generally sought to be construed consistently with European law.” The opinion goes on. Under the title “Is the NHS within the subject of Competition Law?” at paragraph 59 the opinion frankly states that “Essentially, the Bill cannot and does not seek to limit the application of competition law.” We are glad that Mr Opperman accepts this point. Unfortunately, not all members of the Government have been so clear. The Liberal Democrats, in a document penned by Paul Burstow MP, states that the Bill ensures that competition law can be put “back in its box” and that it is possible to ‘shield the NHS from the worst excesses of competition’. This is quite simply not possible, as the advice makes clear. It makes the agreed point that it is the considered opinion, at paragraph 71, of the barrister that ever since at least 2002 it has been the case that “PCTs are undertakings for the purposes of competition law.” For the avoidance of doubt the barrister adds that, “it cannot therefore be assumed that competition law does not currently apply to the NHS system, even in the absence of reforms”. Finally under a heading of “Conclusions on Competition law” the barrister concludes that presently “NHS Trusts are undertakings for the purposes of competition law”. He adds that “the reforms brought about by the Bill merely serve to reinforce the proposition that Foundation Trusts, consortia and their members will each fall within the definition such that competition law applies to virtually the entirety of the NHS.”

To strengthen the point about all this, paragraph 50 the opinion states that: “the government has acceded to pressure to re-focus the duties of Monitor such that they do not now expressly include the direct promotion of competition as an aim in itself.” Mr Opperman, appears to suggest that the re-focussed role of Monitor could be significant. However, the advice makes clear that Monitor cannot protect the NHS from competition law: “The fact however that the government has amended the Bill to remove from the scope of the duties of Monitor the duty to promote competition as an end in itself is arguably futile since the very fact that domestic and European competition law applies to the NHS arguably itself results in the promotion of competition since that is its aim.” (Executive summary) In short, the 38 Degrees assertion that the Bill “will make it almost inevitable that UK and EU competition law will apply as if the NHS were a utility like gas or telecoms” is simply not supported by their own legal opinion. Regretfully, the spin they put on this is also misleading and unhelpful to a reasoned debate. Again, the reality is that competition was introduced by the Labour Government’s laws and will continue to exist under the new bill. It is good to see that, despite quoting selectively from our legal advice, Mr Opperman agrees with it. It is interesting that others, namely the Department of Health and the Liberal Democrats, take a rather different view from that of Mr Opperman. The Department of Health, for example, has argued that PCTs would not now be considered as “undertakings” for the purpose of competition law, thereby essentially arguing that competition law does not currently apply. The Liberal Democrats, on the other hand, seem to think Foundation Trusts can be protected from being considered an “undertaking” in some way. The truth is set out in our legal opinion and is that the current position (as clearly demonstrated by the disagreements amongst the Bill’s supporters) is uncertain. Due to recent reforms it is possible or likely that competition law applies. However, the Bill makes it almost inevitable. Therefore, the legal advice stated, “The reforms introduced by the Bill however will serve to reinforce that conclusion and introduce elements which make it even more likely that domestic and European competition law applies to the NHS. There is nothing in the Bill which has or can have the effect of preventing the application of competition law.” (Executive summary) The important point is that the impact of competition law applying has not yet been properly debated. In addition, whether something should be done to prevent competition law applying has also not been properly debated or thought through. Assertion 3: Removing the Secretary of State’s duty to provide: The 38 Degrees website says: What our lawyers have identified within the Health and Social Care Bill: “The bill will remove the duty of the Secretary of State to provide or secure the provision of health services which has been a common and critical feature of all previous NHS legislation since 1946. This is the means by which Parliament ensures the NHS delivers what the public want

and expect. Furthermore, a “hands-off clause” will severely curtail the Secretary of State's ability to influence the delivery of NHS care to ensure everyone receives the best healthcare possible.” The implication and actual stated paragraph on the site under the title “what this could all mean” is that there will “no longer be a National Health Service”. Yes! Our legal advice says exactly that: “Effectively, the duty to provide a national health service would be lost if the Bill becomes law. It would be replaced by a duty on an unknown number of commissioning consortia with only a duty to make or arrange provision for that section of the population for which it is responsible. Although some people will see this as a good thing, it is effectively fragmenting a service that currently has the advantage of national oversight and control, and which is politically accountable via the ballot box to the electorate.” (Bullet 3, executive summary) Paragraph 2 of the opinion by another junior counsel states that “Currently, the duty in section 3(1) has been delegated to Primary Care Trusts (PCTs). However, this is pursuant to statutory powers of delegation (for example under section 7 of the NHS Act 2006), and these powers can be exercised in a different way, or not exercised at all, if the Secretary of State so chooses.” As the opinion makes clear there is going to be no significant change. The change is to describe a PCT as a commissioning consortia. As paragraph 16 makes clear that under the present law: “These provisions contain an aspirational target duty in section 1 of the NHS Act 2006 to promote a comprehensive NHS, which the Secretary of State must always bear in mind when fulfilling the duty in s3 NHS Act 2006. That duty itself is also a general or target duty (these terms are often used interchangeably) rather than an individual duty, as it is couched in terms that mean that it is the Secretary of State’s opinion as to what is necessary to meet ―reasonable requirements‖ for health services as a whole. “ The 38 degrees slant and their opinion simply do not match up. We are concerned about a subtle but fundamental change in respect of the “duty to provide”. This is not simply about a change of names from a PCT to commissioning consortia. For example, the legal advice makes clear that, whilst the functions in s.3(1) are currently delegated to PCTs, “this is something for which there is a power and not a duty, and so the Secretary of State retains overall control of the health service, which is reinforced by the additional power to give directions to PCTs and other bodies.” (paragraph 17). This is not the case under the Bill. Instead, national oversight is lost and ultimate responsibility for the provision of services will no longer rest with the Secretary of State. Our legal advice supports this: “It is clear that the drafters of the Health and Social Care Bill intend that the functions of the Secretary of State in relation to the NHS in England are to be greatly curtailed. The most striking example of this is the loss of the duty to provide services pursuant to section 3 of the NHS Act 2006, which is currently placed on the Secretary of State. This will be transferred to the commissioning consortia, and reformulated accordingly. In real terms this means that, effectively, the government will be less accountable in legal terms for the services that the NHS provides.” (Bullet 1, executive summary)

The impact of the removal of the “duty to provide” from both s.3(1) and s.1(2) is compounded by the insertion of a “hands off” clause, as highlighted in the legal opinion: “This kind of wording is often used in statutes to mean that a public body only has the power to act when steps to be taken are “really needed” or “essential”, rather than because the public body thinks something is desirable or appropriate. A court looking at this kind of wording would expect the public body (the Secretary of State in this case) to demonstrate why no other course of action could be followed, which is a high test to meet.” (paragraph 32) Mr Opperman chooses not to deal with this argument. It is wrong for Mr Opperman to attempt to brush aside concerns whilst failing to dealing with the crux of the matter The opinion finishes by saying: “thus, there is no change at all in section 1(1).” To argue that the “the government washes its hands of the NHS” based upon and arising out of these opinions would be laughable if it was not such a serious and flawed accusation. Our concerns relate to the removal of the Secretary of State’s “duty to provide”, contained in s.3(1) and s.1(2) of the 2006 Act. Mr Opperman here discusses the “duty to promote”. These duties are not the same and should not be confused. We have outlined above the concerns that exist around s.3(1) and the introduction of the “hands off” clause. The concern in relation to s.1(2) and the “duty to provide” therein, is that with the removal of this duty, there is no person or body with the duty necessary to promote a comprehensive health service. As the executive summary of the legal opinion makes clear: “There will be severance between the two duties, if the Bill becomes law, as the bodies that will have the duty to arrange services pursuant to section 3(1) (the commissioning consortia) do not have a duty to promote a comprehensive health service.” Instead of simply stating the obvious, that there is no change to s.1(1), it would be helpful if Mr Opperman could explain to us and our members how he proposes to address the issues raised by the legal advice.

It is unsurprising that one barrister has not signed or acknowledged authorship of their opinion, given how it has been so abused. One could go on as the assertions by 38 Degrees are riddled by errors, overstatement and simple inaccuracies. This also damages their own credibility. There is much legitimate debate about how we should improve and reform the NHS. The 38 Degrees approach is not the right way. As stated above we commissioned two legal opinions. The legal opinion of Stephen Cragg examined issues surrounding the “duty to provide”. The legal opinion of Rebecca Haynes examined issues surrounding procurement law and competition law. Both legal opinions together with executive summaries of these legal opinions were published on our website and made available to all. The concerns of 38 Degrees remain and include: • The loss of the duty to provide on the Secretary of State;

• • • •

The removal of accountability from the Secretary of State and the impact of the “hands off clause”; Severance between the duty to provide and the duty to promote a comprehensive health service in England; The potential impact of competition law on the NHS, given that it is even more likely to apply under the Bill; and Increased administrative and financial burden on commissioning consortia due to the application of procurement law and the impact of this given the expertise and deep pockets of private companies.

38 Degrees will not be distracted by criticism of them or by implied criticism of their advisers. Our concerns, as demonstrated by this response, remain the vitally important issues raised by the Bill.

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