Guy Opperman MP: The falsehood of the 38 Degrees campaign on health

For 20 years prior to becoming an MP in 2010 Guy Opperman was a barrister; one of his specialities was judicial review of public bodies, including the Health Service. He led the campaign, as a pro bono barrister, in the healthcare case of Compton v Wiltshire Primary Care Trust.

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 the opposite view as fact, ignoring their own legal opinion.

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.

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.

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.

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.”

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.”

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.

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”.

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.

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. 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.