Urgent, decisive action needed vs undemocratic NHS competition rules

As you can see on the Open Democracy site, and on Shibley Rahman’s excellent blog, the government is trying to slip through a catastrophic and previously-denied NHS measure into law.

Exploiting provisions written into last year’s much-despised Health and Social Care Act (HSCA), along with a little-known Parliamentary procedure, the government is attempting to slip its competition measure into legislation ‘under the radar’ of public awareness so that by the time we know it’s happening, it’s too late to do anything about it.

Then-Health Secretary Andrew Lansley’s HSCA contained a provision that the NHS Commissioning Board (NHSCB) and Clinical Commissioning Groups (CCGs), who commission health services, must not

use anti-competitive behaviour which is against the interests of people who use such services.

In response to concerns raised about the risk of coercion to introduce competition, Lansley sent out a letter to prospective commissioners that included the following, very clear statement:

I know many of you may have read that you will be forced to fragment services, or to put services out to tender. This is absolutely not the case. It is a fundamental principle of the Bill that you as commissioners, not the Secretary of State and not regulators, should decide when and how competition should be used to serve your patients’ interests. The healthcare regulator, Monitor, would not have the power to force you to put services out to competition.

The new regulations, which will force almost all services to be put out to competitive tender, show this assurance to have been a shameless lie.

In order to push these new rules into law with minimal resistance, current Health Secretary Jeremy Hunt is using a Parliamentary ‘dodge’ to bypass the usual democratic processes of debate and voting. This procedure, known as ‘negative resolution‘, means that the new rules do not need to be discussed or voted on. Instead they will automatically become law 40 days after being laid down, on 1. April.

However, all is not yet lost. MPs have the right to request a motion (a procedure known as ‘laying a prayer’) annulling the change within the 40-day period – and if this ‘prayer’ is supported by enough MPs it could force a Commons debate and vote.

But this is not easy to achieve – according to Open Democracy it is 10 years since it was successfully done in the House of Lords and 30 years in the Commons. We need to galvanise massive Parliamentary support to achieve it – and at the same time to use every other available tactic to stall or subvert the new set of rules that the government is dishonestly attempting to sneak through. Here are some ideas (feel free to add your own via the comments function!):

Write to your MP

First and most obviously, in order to achieve the groundswell of support for a motion to annul this anti-democratic move, we need to let MPs know that the public is aware of the government’s sleight of hand and that we want it blocked. Go to www.theyworkforyou.com, enter your postcode and it will provide you with the details you need to write to your MP and demand that they take action. No matter which party your MP belongs to, please do this – if even one or two Tory MPs can be persuaded to do the right thing, it could make all the difference.

A Labour commitment

If the government succeeds in forcing through this legislation, it’s essential to minimise its effects between now and the next election. If Ed Miliband and Shadow Health Secretary Andy Burnham make a firm, public commitment now to overturn the rules and cancel any and all contracts awarded under the new rules if Labour are elected in 2015, it may discourage some private companies from attempting to win them in the first place, knowing that they won’t have time to profit from them.

Whatdotheyknow.com won’t allow you to contact the Labour leader and his Health colleague via the site unless you live in their constituencies – but you can still email them at the addresses below to call on them to make a solid, public pledge, so they know that they will have public support if they do so:



Please write an email today and address it to both.

Closed tenders

The new rules state that any new contracts must either be awarded to ‘any qualified provider‘ (AQP) or put out to competitive tender. But there may be an option to minimise damage to the NHS until the rules can be overturned. I’ve worked with competitive tenders and I know there are two varieties of competitive tender: open and closed.

If the rules require CCGs to put all services out to competitive tender, they should still have the right to issue a closed tender – one in which only invited bidders can participate. They can then invite only true NHS bodies to bid for the services. As long as more than one bidder is invited, this should still meet the definition of ‘competition’ – and keep the services within the NHS whichever bidder wins.

You can download a list of prospective CCGs along with the populations they’ll commission for and the Primary Care Trusts (PCTs) they’ll be replacing here. Find out who will be your local CCG(s) and write to them, telling them you expect them to stand up for the NHS in this manner or any other that will achieve the required goal, and that putting out open tenders or using the ‘AQP’ route is not in ‘the interests of those who use [these] services‘.

If these options are not successful or not feasible, there will be other routes that are. We must expect creativity, commitment and courage from our politicians and the CCGs (primarily made up of GPs under the HSCA) to defend the true principles of the NHS by whatever means necessary until this robber-regime can be ousted.

Please act now to get the message across.

(Here’s the letter I sent to Ed Miliband and Andy Burnham, in case you wish to model yours on it:

Dear Ed and Andy,

As I’m sure you’re aware, the government has moved a negative resolution on competition for NHS services that will result in CCGs being forced to open almost all NHS services (except for those where existing contracts were already competitively tendered can be extended) to market competition – and all without proper debate and voting.
This is an undemocratic attempt to force through this measure that breaks clear, written assurances from the then-Health Secretary that CCGs would have full autonomy to decide whether and when competition would be in the best interests of their service-users. It will also break the fundamental principles of the NHS and will be a disaster for the Service in the long term, as true NHS organisations, once lost and replaced by private structures, can never be cost-effectively reconstituted.
These measures are an attempt by the government to slip through the next stage in the dismantling of the NHS – a plan which they denied during their 2010 election campaign, and which never appeared in any manifesto. There is therefore no public mandate for these actions, which amount to robbery by stealth.
You can see more here: wp.me/p2sftc-5ay 
Can you assure me that Labour will do everything to block this move in Parliament, and that if it is successfully pushed through by the government, Labour will make a firm and public commitment to annul all such contracts and restore a truly public NHS and will work closely with CCGs to minimise the damage done in the meantime?
Thanks & best regards,


18 responses to “Urgent, decisive action needed vs undemocratic NHS competition rules

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  2. Hi I am afraid the bit about closed tenders risks giving people false hope, The regs specifically ban any favouring of nhs providers or any restriction on competition (such as requirement for experience, etc) unless an unaccountable, highly pro-market quango, Monitor, deems it ‘neccessary’. If these regs pass, Monitor will have sweeping statutory powers to enforce their own guidance. previous guidance didn’t have statutory force, so commissioners used to have wiggle room (which they used in our case, Gloucestershire). That will change under these regs. Some regulations look hopeful perhaps taken as individual ones but if you read them as a whole, they are very very damaging indeed. What I am being advised having spoken to a lot of experts about this is that CCGs will basically be forced to put virtually everything out to competition except in an emergency or very rare technical exceptions, far narrower than those that parliament was led to believe. If they do not, they will face an indefinite threat that Monitor will come in whenever it feels like it, tear their contracts up, that they will incur huge legal and compensation costs…. just can’t see how these regs leave CCGs any real wiggle room at all. We must fight em!

    • That’s the whole point of my article. Fight them now – but if that fight fails, we can’t give up. Find any and all means to prevent or impede their effects until we can oust this government – and demand from Labour’s leadership a firm commitment to repeal as priority.

  3. I agree and i think most of your article is fantastic. it is a delicate balancing act between leaving ourselves some wiggle room if these regs go through, by not overstating what they do, which was some of the problem with some of the debate around the Act itself, and on the other hand, not lessening in any way the commitment that labour in particular must show to fighting these regs by overstating the freedom that the CCGs will have if they do go through. i still have a concern that the bit about closed tenders does this, it suggests commissioners can restrict tenders to only nhs bodies but this will not be possible under these regs. there is also the danger that they will embed, accelerate and worsen competition law so much in their operation (because competition law is complex and dictated extensively by case law) that by 2015 even if a government wished to implement a ‘preferred provider’ type policy it would be financially and thus politically impossible to do so. i wonder if burnham has had legal advice since the laying down of these regs. even leaving that aside there is so much damage that is likely to be done under them in the next 2 years that nhs providers, already under huge financial pressures, may collapse, leaving a hollowed out nhs incapable of resusitation.

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