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Sep 6th, 2011

Save our NHS – 38 Degrees responds to Andrew Lansley

By 38 Degrees team

There have been a number of comments today in the House of Commons and on few blogs about our NHS campaign. We have just sent out the following statement. Do share your thoughts and comments below.


It has been suggested by a few prominent supporters of the Health and Social Care Bill, including the Health Secretary Andrew Lansley, that 38 Degrees has misrepresented information relating to the Bill. That’s simply not true. We have not misrepresented information, deliberately or otherwise.

Responding to our members concerns, 38 Degrees has been running a campaign to protect the NHS since August 2010. 38 Degrees members have organised hundreds of local meetings, and signed the petition and contacted their MPs in their thousands.

At the conclusion of the NHS listening exercise, in June, 38 Degrees members made it a priority to scrutinise the revised set of NHS plans to confirm whether or not our earlier concerns had been addressed. Over 3,000 38 Degrees members donated to pay for independent legal advice. These donations enabled us to engage Harrison Grant solicitors and two specialist barristers, Stephen Cragg and Rebecca Haynes, to produce detailed advice.

38 Degrees members have been contacting their MPs and asking them to address the issues identified by our legal experts. Many MPs have responded to 38 Degrees members’ questions, and we are compiling MPs’ responses here.

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 – so we’ve also made the full opinions publicly available so people can look at the details for themselves.

As we’ve seen MPs’ replies and criticisms of our campaign, we have addressed the points they have raised in consultation with our legal advisers. We have produced a detailed response to the points commonly raised by MPs here. We have responded to a briefing sent by health minister Paul Burstow to Lib Dem MPs here.

There seems to be a degree of confusion within government regarding competition law. In the briefing to Lib Dem MPs, Paul Burstow states that the government is “shielding the NHS from the worst excesses of competition” and has “put competition back in its box”. They have also stated that Monitor’s role in relation to Foundation Trusts will reduce the chances that they are considered as undertakings for the purposes of competition law. However the letter from Conservative MP Stephen Phillips, refered to by Andrew Lansley in the Commons today, states that “Competition law applies in the NHS now; it will apply in the future.” Further, Guy Opperman MP also seems to agree with this position. The Department of Health however, seems to take a rather different stance. It, rather confusingly says, “We have never said that competition law doesn’t apply to the NHS or that the Bill would prevent it applying. On the contrary, we have consistently said that competition law would apply where it applies, with or without this Bill.” They then accept that the position is legally uncertain before arguing that PCTs would not be considered to be undertakings for the purpose of competition law, thereby seeming to imply that competition law doesn’t currently apply.

It is clear from this tangle that there is uncertainty in the Government as to whether or not competition law does currently apply. Crucially, what is still missing from the debate is a detailed discussion of the potential impact of competition law on the NHS.

It is also worth noting that both Stephen Phillips MP and Guy Opperman MP, do not deal with the concern raised by the legal advice as to the increased administrative burden that arises as a result of procurement law applying to the newly created consortia.

On the removal of the duty to provide from the Secretary of State, Stephen Phillips MP and Guy Opperman MP agree with our legal advice. They then accuse 38 Degrees of misinterpreting the advice, whilst at the same time discussing the duty to promote in s.1(1), instead of the duty to provide contained in s.3 and s.1(2) of the 2006 Act. Our concerns relate to the abolition of the duty to provide and introduction of a hands off clause which is designed to promote autonomy – responses highlighting that the “duty to promote” is not being abolished therefore do not address these concerns. If, as is claimed by Guy Opperman in this regard, there is “no significant change” it begs the question as to why these reforms are being introduced.

We will continue to review criticisms of our campaign carefully. Where we identify new substantive points we will post up responses as soon as they are ready. This may take a little time, as just like all other pieces of material prepared by 38 Degrees as part of this campaign we want to ensure that information is accurate and has been checked carefully by our legal advisers.

As always, we’re committed to open discussion and debate. The concern of our members is to protect the NHS.

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