Blog: Why the Health and Care Bill is so important

There is currently an opportunity to drive out the principles of privatisation, stop the fragmentation and improve how our NHS is run

Sara Gorton

By UNISON head of health Sara Gorton

UNISON was among the earliest and fiercest critics of the 2012 ‘Lansley’ Act, which extended the scope for privatisation of the NHS in England, and made NHS services subject to unwieldy competition and procurement regulations.

It also encouraged fragmentation and disrupted the service by creating and moving tens of thousands of people into a series of new ‘arms-length bodies’.

Since the 2012 Act, UNISON has lobbied for changes – not just to get us back to pre-2012 standing, but to reinstate the principles of collaboration, social value and integration as well as explicitly setting out an ‘NHS first’ principle, so that external providers are only ever used when there is no NHS alternative.

Over the last few years, many of the national bodies established in the 2012 Act have been re-named, re-organised or had their mandates drastically altered – for example, NHS England and Improvement (which manages funding, standards and performance of the NHS in England) do not exist in the Act, creating a lack of transparency as well as a variety of employment issues for people working in those structures.

In 2019, UNISON worked with a series of other organisations to set out a consensus position that would, very quickly, enable the removal of the worst aspects of ‘Lansley’ – those elements that left the NHS subject to competition law and wasted time and money through pointless procurement exercises.

This consensus was tested through the Health and Social Care Select Committee in Parliament, which supported the proposals and recommended turning them into legislation.

Inevitably perhaps, with the 2019 election result, plans to push through legislation quickly stalled. The pandemic delayed the legislation even further, meaning that ‘Lansley’ is still in place, the NHS is still subject in law to discredited market ideology and that thousands of staff in arms-length bodies have uncertain futures.

What’s happening now?

But we kept up the pressure and finally, in the summer of this year, the Health and Care Bill was laid, containing the key elements for which UNISON has lobbied: removal of the worst elements of ‘Lansley’ and creating the best – and only legislative – opportunity to roll back the market from the English NHS in two decades.

In this later stage, the government has added new elements to the legislation, taking it outside the scope of the broad consensus UNISON was part of in 2019.

Some of these elements are acceptable to us but not to other parties – like plans to restrict some of the commercial abilities of foundation trusts.  Others are well-supported by others, but not liked by us – like plans to give priority access to decision-making structures to senior medics while creating no routes to influence for other staff.

We are working hard with political allies and other unions to support amendments to the Bill that would make it more robust and take out some of the new additions.

The key changes we are seeking include:

  • adding specific changes to ensure the principle of ‘NHS first’ is followed in all procurement, including for non-clinical services;
  • enshrining the principle of trade union influence and involvement in all the new bodies – this is currently in the small print in guidance, but we want to make it explicit;
  • making changes to the powers of the secretary of state in the legislation – we have secured powers for them to create new trusts, meaning that new functions do not have to be created outside existing NHS structures, but we want some of the extended powers trimmed back and the fundamental responsibility placed on the secretary of state to provide a comprehensive service re-instated from previous NHS Acts;
  • we also want to add in some security that the employment guarantee we have set in place for staff on transfer to the new parts of the system – eg for clinical commissioning group staff transferring into new integrated care systems – will follow staff past the point of transfer, so they have a certain future and the NHS can benefit from their skills and expertise.
Why some organisations are opposing the Bill?

You may ask why some organisations are opposing the Bill and UNISON is not following suit.

Well, some campaign groups and unions that worked with UNISON for many years to oppose the ‘Lansley Act’ see the latest additions – elements that stray outside the consensus areas set out in 2019 – as grounds to oppose the whole Bill.

While UNISON is working with these organisations on amendments, we are worried about what would happen if the whole Bill was dumped at this stage.

If this happened, what we’ve lobbied for since the NHS was first opened up to privatisation would be lost for the foreseeable future.

Plus, nearly 30,000 people currently being moved around different NHS bodies would face an uncertain future.

So, we will strive to improve and strengthen the Bill as it moves through Parliament, but we must not lose this opportunity to drive out the principles of privatisation, fragmentation and marketisation from the laws that underpin our National Health Service. 

You can read more about the detailed amendments being tabled by MPs.

I have also given evidence to the Bill Committee in support of UNISON’s position and to put forward amendments we want to see.

The main elements of UNISON’s position on the Bill are based on long-established union policy and were reaffirmed in motion 55, which was debated and passed by our special delegate conference in June.