Section 75 and the End of the NHS

by George_East on April 24, 2013

b23-nhs-blue-logo-sml-1836“s 75 Requirements as to procurement, patient choice and competition

(1) Regulations may impose requirements on the National Health Service Commissioning Board and clinical commissioning groups for the purpose of securing that, in commissioning health care services for the purposes of the NHS, they—

(a) adhere to good practice in relation to procurement;

(b) protect and promote the right of patients to make choices with respect to treatment or other health care services provided for the purposes of the NHS;

(c) do not engage in anti-competitive behaviour which is against the interests of people who use such services. 

(2) Requirements imposed by regulations under this section apply to an arrangement for the provision of goods and services only if the value of the consideration attributable to the services is greater than that attributable to the goods.

(3) Regulations under this section may, in particular, impose requirements relating to—

(a)  competitive tendering for the provision of services;

(b) the management of conflicts between the interests involved in commissioning services and the interests involved in providing them.

(4) The regulations may provide for the requirements imposed, or such of them as are prescribed, not to apply in relation to arrangements of a prescribed description.


This rather convoluted piece of legalise in the Health and Social Car Act 2012 is the mechanism by which the Coalition government intends to achieve what Oliver Letwin once promised:  ‘that by the end of 5 years of a Conservative Government the NHS will no longer exist’.  

In particular section 75(3), which enables Regulations to be made by Jeremy Hunt (who has called the NHS a ‘mistake’) to impose competitive tendering on every single service provided by the NHS, from brain surgery to emergency ambulances.

It is the power to make these Regulations which gives the lie to all of those assurances given to the Lib Dems to enable them to justify backing the Bill following ‘the pause’ of 2011.    Even though the reason for her rebellion was to prevent NHS privitisation, Shirley Williams was prepared in the end to line up behind the Bill, on the basis that compulsory competitive tendering was removed from the primary legislation. So what though, if it can be achieved through the far more insidious and unaccountable mechanism of secondary legislation? And with the turbo-Thatcherites of today’s Tory Party that is precisely what has happened.

The government provided assurances during the passage of the Bill that section 75 would be used to ensure that local people had the say in how their health services would be provided and that it would not be used as a back door to privitisation.   The architect of the Act, Andrew Lansley (remember him?) said during the passage of the Bill through the House of Commons:

There is absolutely nothing in the Bill
 that promotes or permits the transfer of NHS activities to the private

Simon Burns, the junior Health minister stated that:

“It will be for commissioners to decide
 which services to tender…to avoid any doubt—it is not the
 Government’s intention that under clause [75] that regulations
 would impose compulsory competitive tendering requirements on

The Regulations laid before Parliament, of course, show that all of this was shameless bullshit.  The first version of the Regulations (which in effect required wholesale privitisation) were withdrawn following universal opposition among the Royal Colleges (including the Surgeons, who backed the Bill), the unions and healthcare groups impressively marshalled by Andy Burnham.   Opinion polls show that 80% of people don’t want any more private sector involvement in the NHS.

However, the latest versions are not much better.  They, in effect, make competitive tendering compulsory for all services except in exceptional circumstances.    The only way in which a decision can be made not to put a service out to tender, is if the Clinical Commissioning Groups consider that there is no other supplied ‘capable’ of providing the service.

Although the Regulations, in theory, permit tendering from the voluntary sector, this is illusory as they have very little experience of bidding for tenders in a fully commercial environment and as a group of heath related charities (including Sue Ryder, Marie Curie Cancer Care and Help for Hospices) said this week given the bureaucratic burdens of tendering, services will be bundled for the purposes of the tender, putting them, in any event, out of the reach of specialist charities.   The Regulations may even have the perverse effect of putting those charities out of business as they lose the right to provide their current services to the NHS.

We should be under no illusion as to the purpose and intent of these Regulations.  It is to achieve an irreversible sell off of the entirety of NHS service.   Once the services are subject to commercial competitive tender, they will also be subject to European competition law, making the process of de-privitisation not only politically and practically difficult, but actually illegal.

And don’t be fooled by those who say (including the ultra-Blairites) that more competition in the NHS will lead to better outcomes or lower costs.  Administrative costs in the NHS as a result of internal competition have risen to 16% of the health budget from less than 5% 30 years ago.    There is no evidence that it leads to better clinical outcomes and good evidence that it leads to greater inequality of provision and huge increases in efficiencies.

The Tories, having failed to win an election and having promised not to have any further top down reorganisation of the NHS is going to achieve what Margaret Thatcher never could, its destruction on 36% of the vote and ably assisted by its Lib Dem fellow travellers.

Today sees one of the final chances to prevent it happening.   Lord Hunt has tabled a motion in the House of Lords to be debated today calling for the Regulations to be annulled.   Given what is at stake the media coverage of the debate has been pitiful.   The result is likely, again, to come down to Lib Dem peers.   I am not optimistic.

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George_East April 25, 2013 at 4:06 pm

Update – Lord Hunt’s motion went down. Cue the mass sell-off of the NHS. A sad sad day, that was barely even reported by the media. Shame on the Lib Dems.


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