The chances of changing the Health Act any time soon are remote

It is a truth almost universally acknowledged that it would be a good idea to amend Andrew Lansley’s Health and Social Care Act 2012. But amending it – let alone scrapping it which some would like to do – is fraught with difficulty.

The case for change is clear – namely that the act has proved dysfunctional. On the one hand, it sought to set in legislative stone “choice and competition” not just as a way of running the NHS as it had been in Labour’s day (alongside targets and terror and performance management), but as the way.  

Against that, however, the act laid duties on all concerned – on NHS England, on Monitor (or what is now NHS Improvement), on clinical commissioning groups and on local authorities, to provide services in “an integrated way”.

Many (though not all) see these two duties as being in conflict. And at least since The Five Year Forward View, the emphasis has all been on integration not competition. The result has been endless workarounds.

The act sought to set in legislative stone “choice and competition” not just as a way of running the NHS as it had been in Labour’s day but as the way

For example, the de facto merger of Monitor and the Trust Development Authority, with the resulting NHS Improvement and NHS England now also being progressively melded together – even as the law prevents a formal merger of either.

On the ground, the aim is to create integrated care systems. But these are not corporate bodies.

They have no legal standing, no budget of their own, and no formal accountability other than through their constituent bodies – and the ability of various forms of provider and commissioner to delegate their duties to others to produce a more integrated service is variable and inconsistent.

In addition, the perception remains that too many CCGs feel required to put services out to tender rather than being able to choose to do so – producing unnecessary cost and delay.

Barriers to amending the act

The act, however, looks remarkably difficult to amend. Legislation simply to merge NHSI and NHSE begs the question of what happens to the market regulation part of Monitor (NHSI).

Simply abolishing part three – the “choice and competition” elements – may not be enough because essentially what the act does is set out for the NHS the operation of EU competition and procurement law. Unless and until the UK finally leaves the EU, including any transition period, such law is likely still to apply unless other steps are taken – abolishing foundation trust status, for example.

Even attempts at small tweaks rapidly lead to big questions – about the role of choice, foundation trust status, and how far and in what form it is desirable for the NHS to return to a more directly managed service.

And on top of that, the Conservatives, of course, do not have a majority. Unless an unprecedented degree of cross party harmony breaks out over what needs to change, a majority is likely to depend on the votes of the DUP – whose constituents will not be affected by the legislation.

The legislation will anyway be complicated by the relatively recent, and arcane, stipulations of “English votes for English laws,” otherwise known as EVEL.

Simply abolishing part three – the “choice and competition” elements – may not be enough because what the act does is set out for the NHS the operation of EU competition and procurement law

For that the Conservatives do have a 60 vote majority of English MPs over Labour’s English ones. But under the rules of EVEL, the legislation still has to pass a vote of the Commons as a whole. So, getting legislation through might depend on persuading the SNP to abstain. Who’d bet on that?

Furthermore, it will be 2021 at the earliest and quite possibly 2022 before any legislation can take effect, and, to steal the phrase from Sir Roy Griffiths’s 1983 management inquiry, the NHS cannot afford a Hamlet-like soliloquy while it hopes and waits for that.

So, while it makes sense for the NHS to accept the prime minister’s invitation to propose the legislative changes that the service would like to see (and to see if it can agree on them), the chances of anything happening, any time soon, are remote.

The act has, however, proved more flexible than it first appeared. For now, continuing to push its boundaries to see how far the duty to provide services “in an integrated way” can trump the “choice and competition” elements looks to be the best, indeed only, route forward – while waiting to see if a judicial review halts that.

If one does, the pressure to legislate will rise. But until there is a government with a majority, the prospect of amending legislation, let alone a wholesale revamp, looks remote.

Nicholas Timmins is a senior fellow at the King’s Fund, which has just published Amending the 2012 Act: Can it be done?