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Response from Shibley, President of the BPP Legal Awareness Society, to the Legal Education and Training Review
The Legal Education and Training Review 2013 report can be viewed here.
There was much to welcome from today’s publication of the “Legal Education and Training Review” , from our perspective of the BPP Legal Awareness Society. It is one of the biggest student societies across all campuses and all disciplines at BPP, and we are totally independent of BPP University College itself and its various schools. This allows us to pursue our own projects our way.
BPP is a unique institution, based in a number of centres in England. I myself graduated from Cambridge, and did my research degree there. I have just, however, completed 7 (non-continuous) years at BPP, having done my Graduate Diploma in Law, Bachelor of Laws, Master of Business Administration and Legal Practice Course with them. They are one of the few places in the country with specialist units in both law and business. However, BPP is very much “a profession-facing organisation” which specifically trains people in behaviours, skills and knowledges bespoke to the legal, finance and business professions. There is therefore a high density of skills within our particular network. Students at BPP have been very keen in the last two years to devote their time voluntarily to supporting our activity at the BPP Legal Awareness Society.
We hold our fortnightly meetings at BPP Law School, Holborn. The LETR (“Legal Education and Training Review”) advised that it does not wish to make ‘commercial awareness’ a formal requirement of the academic part of legal training, regulated for solicitors by the Solicitors Regulation Authority (SRA). However, it did wish to promote its importance in the overall legal curriculum. BPP Law School Holborn runs the traditional and accelerated Legal Practice Courses (LPC), and is therefore well suited to host also this entirely student-run activity. With my committee, we host meetings discussing recent transactions and general trends in commercial and corporate law.
I personally have also completed a Master of Law in Professional Legal Practice, covering six big areas of commercial and corporate law, at the College of Law. I therefore, on behalf of our society, where I am President, welcomed very much the emphasis on “commercial awareness”. I feel the Report, published today, went a long way to explaining why lawyers might benefit from such a training.
Not everyone will end up for the whole of their careers in a large commercial or corporate set, but it is essential I feel for all professional law firms to understand why and how all businesses fail. Some law firms unfortunately fail. This could be due to poor marketing of products and services, poor strategy analysis and implementation of a business model, inability to apply commercially innovative approaches, inability to forecast, budget or cost basic processes, and so it goes on. Understanding this at an international level is essential for some work. The legal profession faces substantial opportunities and challenges both here and abroad in the next 20 years or so, and the LETR was able to provide a compelling reason why commercial awareness is essential.
In my own society in January 2013, I hosted four workshops for law students from all over the UK, providing one hour sessions in each of marketing, strategy, innovation and leadership. These were very well received, and each student received a certificate of attendance. You can even view the talks and download the materials here. Whilst I myself have a disability, I think communication is a vital skill. There’s no point instructing a highly intelligent and capable lawyer if he or she cannot communicate basic concepts well. Students who attend our meetings become conversant in the language of business, and understand why it is so important, beyond their application forms for training contracts. In an informal setting, we are able to lay the foundations for a lifelong commitment to continuous professional training, and develop skills such as problem identification and solving in a pleasant way.
We always talk about issues that simply are not covered in the core or elective parts of the Legal Practice Course, and students who have attended our meetings in the last two years have provided us with very positive feedback. I was interested to note the existence of societies from other legal providers, but I really do feel we are a leader in the national student community when it comes to many competences of the lawyer of the future the LETR introduced us to today. Commercial awareness is very much at the forefront of these.
Shibley, BPP Legal Awareness Society
President
June 25th, 2013
Chris Grayling would like to help you enter solicitors' training!
Verbal reasoning tests are designed to identify an individual’s level of ability to understand and respond to questions about information provided in a passage of text. A candidate is advised to read a given passage of text and then consider the questions which are presented as statements corresponding to the passage. They are then required to decide whether the statement given is true, false, or whether he or she cannot say, given the information contained in the passage.
Consider the following passage about Chris Grayling and “price competitive tendering”:
Price-competitive tendering for criminal defence services will be introduced this autumn under accelerated plans revealed by the justice secretary this morning. In a written ministerial statement, Chris Grayling announced an eight-week consultation on the plans will begin in April – but said that the tender for contracts will open in the autumn. The government expects the first contracts to go live in the autumn of 2014. In a statement issued in December 2011, the government said it would consult on the introduction of price competition in autumn 2013. However Grayling said today: ‘Given the need to achieve savings as quickly as possible, we have decided to accelerate that timetable. The Labour government had sought to introduce price-competitive tendering, but abandoned its proposals after strong resistance from the profession, especially from smaller firms. Grayling said that, through the Legal Sentencing and Punishment of Offenders Act 2012, the government had already sought to reduce legal aid spent on civil cases, but he said that criminal defence represents by far the largest element of the remaining legal aid spend, accounting for over £1bn a year.
The first thing to note that the length of this passage is about 180 words. The length of passages vary in verbal reasoning tests, but this would be a reasonable length. It’s unlikely you will get a story which is politically charged, involving law, or from the news; so this type of article would definitely not be used in a verbal reasoning test.
However, I should like to use this passage and a number of worked examples to illustrate techniques used by people who set these tests.
QUESTION 1
Chris Grayling is the first Lord Chancellor to hold a Doctorate in law.
No information is given about Grayling’s qualifications in this article. You may know that he studied history as an undergraduate student at Cambridge, and indeed holds a degree in that. However, this is inside information. The answer is therefore ‘CANNOT SAY’, as nothing in the passage leads you to say it is either true or false.
QUESTION 2
Chris Grayling announced a four-week consultation.
This statement is DEFINITELY FALSE, as the passage states clearly that Chris Grayling announced an eight-week consultation.
QUESTION 3
According to Chris Grayling, Labour abandoned its proposals after strong resistance from the profession, including from larger firms.
This is difficult as we are told that Labour, “abandoned its proposals after strong resistance from the profession, especially from smaller firms.” Larger firms might have protested against the said proposals, for all we know, so the statement is, as far as the candidate is concerned, NEITHER TRUE NOR FALSE.
QUESTION 4
According to Chris Grayling, the government has already sought to reduce legal aid spent on civil cases, but he said that criminal defence represents a very small element of the remaining legal aid spend.
The second half of this statement is clearly false, given the information given at the end this passage, making the entire statement FALSE. If part of your statement in the question is FALSE, that makes THE WHOLE STATEMENT FALSE.
QUESTION 5
The government expects the first contracts to go live before 2016.
Given that the government expects the first contracts to go live in the autumn of 2014, it must be true that the government expect the first contracts to go live before 2016.
Good luck! And just remember – if you pass that verbal reasoning test thanks to this – just remember that it was Chris Grayling who helped you take your first steps into the legal profession!
If every unemployment statistic is a tragedy, what was every 'excess death' at Mid Staffs?
It never fails to amaze me how certain policy strands run in parallel along a disastrous course, but silos in journalism mean that you’ll never get people joining the dots.
One example of this is the competitive tendering in legal services which Chris Grayling MP is currently shoehorning through, despite overwhelming opposition from lawyers including QCs. Everytime the unemployment figures up, or we have another revival in youth employment, Chris Grayling used to be the guy on TV saying that ‘every statistic is of course a personal tragedy’. Curiously you never get this phrase said about any excess death from the NHS which happened out of the ordinary. The concept that it is impossible to measure excess deaths at all will be alien to any professional in clinical negligence, who will be able to follow through the well-worn logic of duty-of-care of a clinician, failure of that duty causing breach, and that breach causing damage provided that there is not remoteness. We all know that the media is prone to hysteria, and indeed John Prescott once advised me not to believe everything written about ‘one’ in the papers. And an issue undoubtedly is that some are using what happened at Mid Staffs for their own agendas. You’d be forgiven for thinking some reports have the sole intention of shutting down the entire NHS as a national health service, blow all its credibility to smithereens, and to prepare its purchase price for the lowest bidder in a Government which has relish in outsourcing and privatisating the State infrastructure.
However, the sensationalism which was embraced whether there were any ‘excess deaths’ or not is perhaps distasteful at best, and frankly rude at worst. Mortality ratios are supposed to be the ‘smoke alarm’, but now that the inferno has happened, it is not time to remove the batteries from the smoke detector. The public inquiries at Mid Staffs I feel were essential. I don’t feel that this is an issue which could have been discussed behind closed doors ‘in camera’. It might be feasible to hold no-one accountable as the ‘culture’ is so widespread, but that has not led professionals to escape liability ever before for fundamental breaches in care, such as poor note-keeping, unprompt investigations, poor conduct and communication, from the professional regulators. The frustration has been there appears to have been very little accountability, and this is significant whether one feels the role of the justice system should be fundamentally restorative, retributive or rehabilitative. A certain amount of hysteria has instead engulfed proceedings at Mid Staffs, with the recently reported hostile behaviour towards Julie Bailey, remarkable campaigner and founder of ‘Cure the NHS’.
However, Julie has never wanted to ‘Kill the NHS’, but is deeply hurt about what happened to her Mum. Deb Hazeldine is very hurt about what happened to her mum. Any reasonable daughter would. These are times for reports of personal tragedies. Whilst we all have to move on, it is important to acknowledge accurately the distress of what happened, and this is precisely what we achieved in the Francis Inquiries. The accounts in those Inquiries are not figments of anyone’s imagination. It is even possible that we may have to learn from what happened there for other NHS Trusts. There is a trail of logic which goes that ‘efficiency savings’ were in fact cuts which included relative staff shortages, despite more being spent on the NHS budget overall including for salaries for certain personnel; this meant that key critical frontline staff were overstretched, there were genuine clinical events in patient safety which went beyond ‘near misses’, but they were not adequately dealt with. The Francis Inquiries should not be used to draw closure on the matters for the Labour administration, which I broadly supported. The reaction to the situation, a real one of personal tragedy, should not in my view a retweet of a blog which says that standard mortality ratios are unreliable, however correct that blog might be. This for me is not in any way personal – I like and respect very much people on all sides of what has been a highly charged discussion. I have known some of them for ages, and I will continue to support them publicly and in private.
We are not at the end of the solution of what happened in Mid Staffs, and for the time-being we should honestly recognise that.
David Cameron's holiday, like an individual's tax arrangements, is actually none of your business
Why would you want David Cameron not to take a holiday? Perhaps you think that he should be chained to MI5 or MI6 24/7. Maybe you have some especial thing about him wanting to spend time with his wife or his family?
This “mean-mindedness”, about individuals feeling that it is their business to deprive David Cameron of a small break, beggars belief. More’s the point, it is even more astonishing that they inflict their views about this unimportant manner in such an impersonal public manner. It is a characteristic of all organisations that there is enough people in the team for operations to run smoothly. I am not saying that David Cameron, as Prime Minister, is simply a manager and we can run the country without him. But to think it is worth spending time writing about how he should not have a holiday, or even criticise him for his choice of destination, is petty, when you consider the real choices that this country faces. Should the UK government seek to crack down on aggressive tax avoidance unilaterally or is it simply an extension of shareholder primacy under the company law of many jurisdictions, not just ours? Should we seek to have more NHS services run by the private sector, so that they possibly can be run not at a loss, but to seek to deliver higher quality or value, even if returning a profit? Whatever your ideological viewpoint, these are more interesting questions that all parties need simply not to sit on. Labour didn’t do anything for years on tax avoidance, and contributed in introducing the private sector to the NHS. This may upset you: but David Cameron’s holiday is none of your business. That’s why you won’t find his holiday snaps in the newspapers, because it would be an unlawful invasion of his privacy.
A third of people will like you whatever you do. A third of people will dislike you whatever you do. A third of people will be completely indifferent whatever you do. The fact that people are concerned about David Cameron’s holidays, in the news, is more of an artefact that the media choose to report this, say, ahead of events in Syria. Or, even better, they have finally become exhausted by their own reportage on UKIP. The enthusiasm of scrutiny on this parallels the amount of disproportionate interest given to the Eton Entrance Scholarship examination past paper. The general paper is not testing the tenacity of bigoted right-wing beliefs, deeply engrained in the education system. Nor is it testing whether people are ‘fit to rule’ the country. Such paranoid beliefs simply serve to confirm what the Left hate being criticised about – the politics of envy. They also show deeply prejudiced opinions which reasonable people should find deeply worrying.
What, though, is weird about this entire thing is that people writing newspapers are generally not working class, not even in the Daily Mirror. And some of the people protesting the most loudly about class issues have graduated with good degrees from the University of Oxford in an arts based subject such as English. It is not long ago that black and ethic minority candidates, from relatively disadvantaged backgrounds, felt pressurised to study a vocational subject such as engineering, law or medicine, to maximise their chances of succeeding in life. But taking this argument to another extreme, nobody would wish for Oxford graduates in English to avoid deliberately discussing these topics on class or lifestyle which deeply interest them. Freedom of expression is extremely important as a qualified human right, and so long as listening to somebody exerting their freedom of expression is not automatically taken to mean ‘tolerance’ of those views, it should be a right to be defended strongly. It is clearly worrisome if professional politicians should wish to censor those people with views which are extreme, but not unlawful or illegal.
But then again this is not the first time that this country would get its knickers in a twist about the difference between the law and ethics. Tax avoidance is actively frowned upon by the professional bodies of accountancy, and everyone knows it’s complex. All sorts of people making tax decisions for entirely personal reasons, including ISAs. People’s tax affairs are none of your business. You can argue that the tax affairs of Google, Starbucks or Amazon impact upon society, but, so long as it is legal, it is strictly speaking, it is none of your business. If you have a serious gripe against the economy, tax, or the NHS, you can remedy your grievance by voting for a party which more represents your views on May 8th 2015. However, if you are interested in David Cameron’s holiday, or Eton scholarship exam questions, just realise it’s pontificating. Lazy journalism. “Entertainment”. It’s nothing interesting, or intelligent. It certainly doesn’t make this country a better place.
The English dementia policy: some personal thoughts
The last few years have seen a much welcome progression, for the better, for dementia policy in England. This has been the result of the previous Government, under which “Living well with dementia: the National Dementia Strategy” was published in 2009, and the current Government, in which the Prime Minister’s Dementia Challenge in 2012 was introduced.
Dementia is a condition which lends itself to the ‘whole person’, ‘integrated’ approach. It is not an unusual for an individual with dementia to be involved with people from the medical profession, including GPs, neurologists, geriatricians; allied health professionals, including nurses, health care assistants, physiotherapists, speech and language specialists, nutritionists or dieticians, and occupational therapists; and people in other professionals, such as ‘dementia advocates’ and lawyers. I think a lot can be done to help individuals with dementia ‘to live well'; in fact I have just finished a big book on it and you can read drafts of the introduction and conclusion here.
It is obviously critical that clinicians, especially the people likeliest to make the initial provisional diagnosis, should be in the ‘driving seat’, but it is also very important that patients, carers, family members, or other advocates are in that driving seat too. I feel this especially now, given that there is so much information available from people directly involved in with patients (such as @bethyb1886 or @whoseshoes or @dragonmisery) This patient journey is inevitably long, and to call it a ‘rollercoaster ride‘ would be a true understatement. That is why language is remarkably important, and that people with some knowledge of medicine get involved in articulating this debate. Not everyone with power and influence in dementia has a detailed knowledge of it, sadly.
I am very honoured to have my paper on the behavioural variant of frontotemporal dementia to be included as one of a handful of references in the current Oxford Textbook of Medicine. You can view this chapter, provided you do not use it for commercial gain (!), here.
I should like to direct you to the current draft of a video by Prof Alistair Burns, Chair of Psychiatry at the University of Manchester, who is the current National Clinical Lead for Dementia. You can contact him over any aspects of dementia policy on his Twitter, @ABurns1907. I strongly support Prof Burns, and here is his kind Tweet to me about my work. I agree with Prof Burns that once individuals can be given face-to-face a correct diagnosis of dementia this allows them to plan for the future, and to access appropriate services. The problem obviously comes from how clinicians arrive at that diagnosis.
I am not a clinician, although I studied medicine at Cambridge and did my PhD on dementia there too, but having written a number of reviews, book chapters, original papers, and now a book on dementia, I am deeply involved with the dementia world. I am still invited to international conferences, and I personally do not have any financial vested interests (e.g. funding, I do not work for a charity, hospital, or university, etc.) That is why I hope I can be frank about this. Clinicians will be mindful of the tragedy of telling somebody he or she has dementia or when he or she hasn’t, but needs help for severe anxiety, depression, underactive thyroid, or whatever. But likewise, we are faced with reports of a substantial underdiagnosis of dementia, for which a number of reasons could be postulated. Asking questions such as “How good is your memory?” may be a good basic initial question, but clinicians will be mindful that this test will suffer from poor specificity – there could be a lot of false positives due to other conditions.
At the end of the day, a mechanism such as ‘payment-by-results’ can only work if used responsibly, and does not create an environment for ‘perverse incentives’ where Trusts will be more inclined to claim for people with a ‘label’ of dementia when they actually do not have the condition at all. A double tragedy would be if these individuals had poor access to care which Prof Burns admits is “patchy”. In my own paper, with over 300 citations, on frontal dementia, seven out of eight patients had very good memory, and yet had a reliable diagnosis of early frontal dementia. Prof Burns rightly argues the term ‘timely’ should be used in preference to ‘early’ dementia, but still some influential stakeholders are using the term ‘early’ annoyingly. On the other hand, I wholeheartedly agree that the term ‘timely’ is much more fitting with the “person-centred care” approach, made popular in a widespread way by Tom Kitwood.
I am still really enthused about the substantial progress which has been made in English dementia policy. I enclose Prof Burns’ latest update (draft), and the video I recorded yesterday at my law school, for completion.
Prof Alistair Burns, National Clinical Lead for Dementia
Me (nobody) in reply
I won my disability living allowance appeal and it surprisingly was an incredibly rewarding experience
This is what you would call perhaps a ‘good news story’ about my disability benefits.
Last Monday, I was invited to Fox Court, Gray’s Inn Road, to go in front of a disability benefits tribunal. I had no idea what to expect. If you ‘Google’ what these tribunals are about, you are likely to draw a blank.
I turned up on time, although I was very nearly late. I think it’s worth treating the tribunal appointment like a job interview. Make sure you turn up with time to spare, so you can compose your thoughts. Where it isn’t like a job interview is that I appeared ‘smart casual’. This is because I have real difficulty in doing buttons and tying shoelaces, and I felt it might be appropriate for the tribunal members to see me how I actually am in my day-to-day life.
Actually, they were very nice to me. I had a panel of three, including a disability expert, and a medical expert. They weren’t overly friendly. There was a huge timer between us, so I know that the entire thing was over in 17 minutes flat.
In the end, it was quite a big deal for me. For me, I had put in an application, and then was not awarded any benefit. I had been on the highest rate of mobility allowance before. I took just in case my old medical notes, but did make it crystal clear to them the date of the reports. They found them useful. I asked for my original submissions to be reviewed, and they made an initial award. I discussed this award with a welfare benefits advisor in a law centre whom I know well. He recommended that it was, in fact, the wrong award, and thought I should appeal. The only voluminous paperwork was the original application form, which you must complete to the best of your ability. The point about the appeal notification is just to let them know you wish to appeal, with a clear reason.
I didn’t have to pay for the appeal. Always tell the truth. Also, only answer the question they ask. Don’t pontificate about anything else. They want to know how far you can walk in metres. They also want to know whether you need help with your living, so think carefully about washing, bathing, shaving, cooking, shopping, getting out of bed, showering, etc. If something doesn’t apply to you, e.g. night-time care, don’t shoehorn possible reasons why it might.
Think about what you’re saying. Make sure that what you’re saying is consistent all the way through. This will be a given if you are telling the truth. But if you say you never go out of the house don’t say you’ve just come back from a hill climbing trek in the Himalayas, etc. This is obviously a ridiculous example, but you know what you mean.
I learnt some basics from the advocacy course in my Legal Practice Course which helped. That is, it really helps if you keep eye contact with the people asking you the questions. I acknowedged that I had a weird squint beforehand, as I have a rare double vision problem. I didn’t use any notes, but I would strongly recommend that you don’t immerse your nose in a bulk of notes. Those notes will only confuse you, and slow you down enormously.
So, anyway it was an entirely constructive experience. Whether or not it is typical, I don’t know. However, I learnt how to trust them. I didn’t take in any tape recorders, as indeed some had advised. I won my appeal. I’m glad I put myself through it, though it can be exasperating and time-consuming as it goes along. As it happens, all the people I spoke to in the Department of Work and Pensions were extremely helpful, but this again could be simply “luck of the draw”. Good luck!
Jeremy Hunt says that 'NHS 111' is now "up-and-running", but that targets should not be gamed
The reality is that the vast majority of hospitals in the NHS are currently failing to see 95% of patients within four hours. Jeremy Hunt was interviewed on the BBC ‘The Andrew Marr Show’ this morning in a wideranging interview which also covered membership of the European Union.
Jeremy Hunt first underplayed the severity of the NHS 111 fiasco, but claimed that things are better now. Of course, one tragedy in care is one too many. The NHS says it has experienced seven “potentially serious” incidents in the first few weeks of its 111 urgent care helpline in England. One case involved a patient in the West Midlands who died unexpectedly and there have been reports of calls going unanswered and poor advice being given. All the cases are being reviewed. Other organisations are also running 111 lines for NHS England and have been warned they must deliver good care or face financial or contract penalties.
In 2010, critics had claimed the change from NHS Direct to NHS 1111 would undermine the quality of the service by reducing the number of qualified nurses answering calls, but chief executive of NHS Direct Nick Chapman said that new helpline would be better and more cost effective. Jeremy Hunt, meanwhile, this morning stated, “There are short-term pressures and long-term pressures. We did have teething problems with NHS 111. It is up-and-running now in 90% of the country. We need to have better alternatives in primary care, a better personal relationship between patients and their GPs”.
“Under the last government, we had a culture of ‘hitting targets at any cost’.” Hunt then went onto blame ‘the target culture’ for bringing about the problems which Mid Staffordshire NHS Foundation Trust had faced, leading to two inquiries by Sir Robert Francis QC. Hunt further added that, “I would never blame GPs, because they work extremely hard. I have just been in one.” Of course, nobody seriously would take the blindest bit of difference of Hunt comparing his brief time work experiencing in a GP surgery compared to seven years of basic medical training, including pre-registration training, even prior to specialist GP training.
GPs have experienced a number of contractual changes over time (described here), and latterly it has been mooted that the personal income of GPs, following the latest change, has been steadily eroded as funding levels have been frozen, whilst the running costs of surgeries and staff pay have increased. Hunt provided this morning, “That Contract is one of the contributing causes, because after hours and at weekends the service deteriorates. I don’t want to go back to those days where GPs are personally on call at 2 am.”
Hunt added that, “GPs should have responsibility that people on their list have good service.” It is difficult to see what exactly Hunt means by this, as it is hard to separate out the effect of a medical decision taken out-of-hours compared to a decision compared to during ‘conventional hours’, and one assumes that each Doctor is still responsible for his/her own medical actions to the General Medical Council, wherever he or she provides care.
Hunt then gave a response which managed to combine a welcome for targets in improving care, with direct criticism of those managers clearly gaming the system. Regarding the A&E target, Hunt opined, “It is a very important target, and we have never said we do not have to have good targets. We don’t want people to follow targets at any cost.” However, he then described a series of measures how managers would then ‘game’ the system.
“We had beds which hadn’t been cleaned, ambulances circling hospitals before they entered the front door because they didn’t want the clock the start.”
We've just had a huge debate about the NHS. It's just a pity that it's been the wrong one.
Think of how much time we’ve just all spent, in thinking about the way in which services will be mostly put out for competitive tendering in the National Health Service. One of the first rules in law is that you fight your battles to the hilt, but, at first, you pick the right battles first. This is precisely what Labour appears not to have done. When Harriet Harman recently said on Question Time that the Conservatives are definitely not ‘to be trusted with the NHS’, Harriet curiously did not refer to the battle and war just won by the Conservatives (and Liberal Democrats) over NHS procurement. And yet the public desperately want Labour to stand up for the NHS. One member even suggested that, if Labour gave its unequivocal backing for restoring the NHS, Labour could even find itself with a massive vote winner.
Labour is clearly going through policy strands with a fine tooth comb, looking at, for example, the way in which multinational companies might employ workers at below the national minimum wage; effectively, controlling immigration through a wage policy. It does not appear to have worked out unequivocally whether it would reduce the rate of VAT, meaning possibly that the state borrowing requirement would temporarily increase. But do you see what they all did there? For days, weeks, or even months, we have been subjected to a relentless debate about EU immigration, when most surveys probably place the issue at number ten on the list of voters’ concerns. Unsurprisingly, the economy remains in ‘pole position’, but the ability of Labour to turn the opinion of the public, particularly in the South of England, away from the idea that Labour is ‘fiscally incontinent’ remains unconvincing. Labour is still considered to be the “tax and spend” party, for example, and Miliband appears painfully aware of that. So, when it comes to policy, there seems to be an odd combination of Labour shooting itself in the foot, or completely picking the wrong battles. And then you add in a complete inability to look at elephants in the room. Labour, to state the obvious, has no ability to implement any of its policies, if it is unable to win a General Election, and the confidence of Labour to win an election on its own is reflected accurately in Lord Adonis promoting his book that ‘if he were to form a new Lib-Lab pact, he wouldn’t start from here.‘
The NHS remains pivotal in Labour’s electoral chances, and Labour has been unable to use the resentment over the section 75 NHS regulations to maximise political capital. Why this should have happened in itself is interesting, as Andy Burnham, MP for Leigh, is a more than capable Shadow Secretary of State for Health. One of the issues is an ability to choose the right battle, possibly. Burnham, with some support from the right-wing media and thinktanks, has been banging on about integrated and whole-person care. Whether through conspiracy or cock-up, there will be short-term interest in how integrated care might be delivered. Think about a justification for State spending in the ‘mission impossible’ of implementing a NHS IT system. Why on earth would a right-wing libertarian government promote something which is national? Why on earth should you abort an ethos of ‘bonfire of the QUANGOs’ to introduce the biggest QUANGO in the country, viz NHS England? Whether you’re into conspiracy or cock-up, the integration of financial and medical information (including mental, physical and social care systems) allows for the perfect infrastructure for an insurance-based system. Insurance works on the basis of misrepresentation or non-disclosure to invalidate claims, so ‘big data’ serve a perfect storm for this. It won’t have escaped anybody’s attention that Labour (as indeed the Conservative Party) has been heading towards an insurance-based system for social care, so it does not require a massive ideological leap to think how this could be extended for all care with time. This does not involve any degree of paranoia, please note.
There is overwhelmingly an intellectual depravity in the bereft notion of producing policy through poll results and focus groups. New Labour clearly loved focus groups, with Philip Gould in ‘The Unfinished Revolution’ having devoted much airspace to developing a product in line with customers’ wishes. Of course, the Conservatives have a special affinity for polling organisations themselves, Nadhim Zadawi, in 2000 he co-founded YouGov and on its flotation became its CEO. YouGov is now one of the world leaders in political and business information gathering, polling and analysis. It employs over 400 staff on three continents and is listed on the London Stock Exchange. Again – it begs the question on why should Labour should wish to outdo the Conservatives on its own ability to use polling data? One of the polls which has become a toxic meme is how a high proportion of all voters would not mind who provides the NHS services, as long as it’s free at the point of use. However, this is intrinsically linked to other questions. Would you be prepared more in national insurance if it meant the NHS were able to provide a more comprehensive (universal) service?
It is indeed correct to state that the costs of renationalising the NHS might be overwhelming, although no accurate costings of this have ever been discussed properly. We do know, however, that the current cost of the NHS reorganisation is in the region of £3bn, but estimates of the actual cost inevitably have to be taken with a pinch of salt, as say the cost of Margaret Thatcher’s funeral. But to use this issue as a wish to stop discussion of this area is lazy, as one of the issues, as indeed as with Thatcher’s funeral, is that is this a sensible use of money compared to how it could be used elsewhere (so called “opportunity cost“)? Some people argue that the marketisation of the NHS has failed, in that any money spent on restoring a state-funded NHS would be money well spent. Restoring a state-funded service would get out of the idea of private companies being driven by maximising their profit margin, and not running a ‘more for less’ approach for delivering a service. Cynics might argue that the cost of restoring a state-run service is peanuts compared to waging a war abroad. Many remain unconvinced about the mantra that economic competition drives up quality, when it is the professional standards of healthcare staff, including doctors, nurses and allied health professionals, which appear to be at the heart of quality. The debate we have just had about the mode of procurement in the NHS was not one any of us as such elected; in other words, it has no mandate. If the Conservatives and the right-wing media appear so pre-occupied about having a referendum next parliament on our membership of the EU, many are (rightly) asking why Ed Miliband cannot ask for a mandate to take sensible decisions about the nature of the NHS. It is a given that there will always be a proportion of services which are outsourced to the private sector, but the question should be ‘how much’. Whilst a full-blown privatisation of the NHS has not happened yet, we have not even had a discussion of how much of the NHS should be outsourced.
And anyway Labour has to ask what really concerns all voters? In Mid Staffs and Cumbria, it is reported that there have been concerns about patient safety, and it may be mere coincidence that Labour failed to convince the voters in both places in the local elections over their offerings. However, there is certainly a ‘debate to be had’, about whether “efficiency savings” in the NHS are justified to produce surpluses in the NHS which get ploughed back into the Treasury (and therefore might be used for international overseas aid rather than frontline care.) Labour equally seems unable to look another ‘white elephant’ in the eye. That is of course the concept of a NHS hospital going bust. Should a NHS Trust which is in financial difficulty be simply allowed to go insolvent after a period of administration, or should the State pump money into it to maintain a local service to people in the community? This requires a fundamental reappraisal of how important “solidarity” and “social democracy” are, in fact, to Labour, and whether it wishes to use its extensive brand loyalty to have a mature, if sobering, discussion of the extent to which it wishes to fund a SOCIALIST National Health Service. Whilst in extremis it can be argued that a nostalgic return to ‘The Spirit of ’45” is not attainable, and is the wrong solution for the wrong times, there is a genuine perception that Labour has lost sight of its founding values. And why has this not been addressed in focus groups? It is well known that, in marketing, if you ask the wrong questions, you ubiquitously get the wrong answers.
Labour needs a mandate to confront these issues. And it should not be afraid to look for a resounding mandate, either. Whilst it might stick its fingers in its ears, and claim it’s nothing to do with them (arguing instead for integrated, “whole person” care), unless these ideological issues are confronted, NHS policy will continue to go down a right-wing path. For example, there is not much further to see GP ‘businesses’ being offered by the private sector, and the NHS pays for them; in this model, GP ‘businesses’ could operate under a standard 5-year contract, using NHS branding, under a ‘franchising’ model like Subway. And “The Tony Blair Dictum” is far from resolved, although currently there are issues more worthy of ‘firefighting’ in service delivery, such as the fiasco over ‘1111’. Labour’s problem is that it does not see the NHS as a ‘vote winner’, in the same way it doesn’t see the plight of disabled citizens experiencing difficulty with their benefits or people feeling genuinely threatened by ‘the bedroom tax’ as a top priority. Whilst Labour is unable to prioritise its issues in a way to align its aspirations with the concerns of the general public, there is no way on Earth it can hope to govern a convincing majority. If Labour wishes to learn a really useful trick from marketing, it could no better than to look at the ‘GAP analysis’ – looking at what the current situation is, and what the expectations of people are, and thinking how to get to a position of what people want. If people actually want a socialist universal, comprehensive NHS, paid for not in a private insurance system, Labour can be expected to work hard for a mandate to deliver this. If it doesn’t, that’s another matter, and it can witter on about whole-person care to its heart’s content.
Competitive tendering is no longer the solution; it is very much the problem.
As part of the “Big Society”, medics and lawyers have now been offended over competitive tendering. Competitive tendering is no longer the solution; it is very much the problem.
Yesterday, it was the lawyers’ turn. The Bar Standards Board (“BSB”) yesterday extended (10 May 2013) the first registration deadline for the Quality Assurance Scheme for Advocates in the face of a threatened mass boycott by barristers. The Solicitors Regulation Authority is expected to follow. In a statement yesterday, the BSB said the deadline will be extended from 10 January to 9 March 2014 ‘to ensure the criminal bar will have more time to consider the consequences of government changes to legal aid before registering’. The end of the first registration period will now be after the Ministry of Justice publishes its final response to its consultation on price-competitive tendering. The SRA board is expected to approve a similar extension shortly.
A group of leading academics, including Prof. Richard Moorhead from University College London, indeed wrote yesterday,
“As academics engaged for many years in criminal justice research, we write to express our grave concern about the potentially devastating and irreversible consequences if the government’s plans to cut criminal legal aid and introduce a system of tendering based on price are introduced. Despite the claim by Chris Grayling, the minister of justice, that ‘access to justice should not be determined by your ability to pay’, this is precisely what these planned changes will achieve. This is not about ‘fat cat lawyers’ or the tiny minority of cases that attract very high fees. As we know from the experiences of people like Christopher Jefferies, anyone can find themself arrested for the most serious of crimes. No one is immune from the prospect of arrest and prosecution.”
Previously, it had been the medics’ turn. That did not deter Earl Howe in collaboration with people who clearly did not understand the legislation like Shirley Williams in competition with the medical Royal Colleges, Labour Peers and BMA. The Royal College of Physicians set out their oppositions to competitive tendering articulated their position last month:
Competitive tendering is often considered to promote competition, provide transparency and give all suppliers the opportunity to win business. It may be that price tags are driven down, but most reasonable professionals would actually ask, “At what cost?” Competitive tendering, rather, has a number of well known criticisms.
When making significant purchases, frank and open communication between potential supplier and customer is crucial. Competitive tendering is not conducive to open communication; in fact, it often discourages deep dialogue because in many cases all discussions between a bidder and the purchaser must be made available to all other bidders. Hence, Bidder A may avoid asking certain questions because the questions or answers may help other bidders by revealing Bidder A’s approaches, features, and the like. At the moment, there is a policy drive away from competition towards collaboration, innovation and ‘creating shared value’. Dr. Deming also writing in Out of the Crisis, “There is a bear-trap in the purchase of goods and services on the basis of price tag that people don’t talk about. To run the game of cost plus in industry a supplier offers a bid so low that he is almost sure to get the business. He gets it. The customer discovers that an engineering change is vital. The supplier is extremely obliging, but discovers that this change will double the cost of the items……the vendor comes out ahead.” This is called the cost-plus phenomenon.
Competitive tendering furthermore encourages the use of cheaper resources for delivering products and services. A supplier forced to play the competitive tendering game may come under pressure to keep costs down to ensure he gets a satisfactory profit margin. One way a supplier can lower costs is by using cheaper labour and/or materials. If the cheaper labour and materials are poor quality, the procurer will often end up with inferior, poor quality product or service. However, warranty and other claims may result –raising the price of the true, overall cost. Another area where suppliers may be tempted to lower costs is safety standards. This current administration is particularly keen on outsourcing, and sub-contractors may cut corners and creating safety risks. This is obviously on great concern where patient safety in the NHS has recently been criticised, after the Francis Inquiry over Mid Staffs NHS Foundation Trust. Furthermore, then government agencies, and indeed, private companies use competitive tendering it can take several years to choose a successful bidder, creating a very slow system. The result is the customer can wait incredibly long periods for product or service that may be required quickly. Finally, insufficient profit margin to allow for investment in research and development, new technology or equipment. Already, in the U.S., private “health maintenance organisations” spend as little as possible on national education and training of their workforce.
So the evidence is there. But, as the Queen’s Speech this week demonstrated on minimum alcohol pricing and cigarette packaging, this Government does not believe in evidence-based policy anyway. In the drive for efficiency, with a focus on price and cost in supply chains, the legal and medical professions have had policies imposed on them which totally ignores value. This is not only value in the product, but value in the people making the product. One only needs to refer to the (albeit extreme) example of a worker being retrieved from the rubble of that factory in Bangladesh to realise that working conditions are extremely important. This is all the more hideous since the policies behind the Legal Aid, Sentencing and Punishment of Offenders Act (2012) and the Health and Social Care Act (2012) were not in any of the party manifestos (sic) of the U.K. in 2010.
Competitive tendering is no longer the solution; it is very much the problem.
They've run out-of-steam, as outsourcing and making lots of money is not an ideology
A lot of mileage can be made out of the ‘story’ that the Coalition has “run out of steam”, and this week two commentators, Martin Kettle and Allegra Stratton, branded the Queen’s Speech as ‘the beginning of the end’. There is a story that blank cigarette packaging and minimum alcohol pricing policies have disappeared due to corporate lobbying, and one suspects that we will never get to the truth of this. The narrative has moved onto ‘immigration’, where people are again nervous. This taps into an on-running theme of the Conservatives arguing that people are “getting something for nothing”, but the Conservatives are unable to hold a moral prerogative on this whilst multinational companies within the global race are still able to base their operations using a tax efficient (or avoiding) base. Like it or now, the Conservatives have become known for being in the pockets of the Corporates, but not in the same way that the Conservatives still argue that the Unions held ‘the country to ransom’. Except things have moved on. The modern Conservative Party is said to be more corporatilist than Margaret Thatcher had ever wanted it to be, it is alleged, and this feeds in a different problem over the State narrative. The discussion of the State is no longer about having a smaller, more cost-effective State, but a greater concern that ‘we are selling off our best China’ (as indeed the late Earl of Stockton felt about the Thatcherite policy of privatisation while that was still in its infancy). The public do not actually feel that an outsourced state is preferable to a state with shared responsibility, as the public do not feel in control of liabilities, and this is bound to have public trust in privatisation operations (for example, G4s bidding for the probation service, when operationally it underperformed during the Olympics).
It is possibly this notion of the country selling off its assets, and has been doing so under all administrations in the U.K., that is one particular chicken that is yet to come home to roost. For example, the story that the Coalition had wished to push with the pending privatisation of Royal Mail is that this industry, if loss making, would not ‘show up’ on the UK’s balance sheet. There is of course a big problem here: what if Royal Mail could actually be made to run at a profit under the right managers? Labour in its wish to become elected in 1997 lost sight of its fundamental principles. Whether it is a socialist party or not is effectively an issue which seems to be gathering no momentum, but even under the days of Nye Bevan the aspiration of Labour was to become a paper with real social democratic clout. One of the biggest successes was to engulf Britain in a sense of solidarity and shared responsibility, taking the UK away from the privatised fragmented interests of primary care prior to the introduction of the NHS. The criticism of course is that Bevan could not have predicted this ‘infinite demand’ (either in the ageing population or technological advances), but simply outsource the whole lot as has happened in the Conservative-led Health and Social Act (2012) is an expedient short-term measure which strikes at the heart of poverty of aspiration. It is a fallacy that Labour cannot be relevant to the ‘working man’ any more, as the working man now in 2013 as he did in 1946 stands to benefit from a well-run comprehensive National Health Service. Even Cameron, in introducing his great reforms of the public sector in 2010/1 argued that he thought the idea that the public sector was not ‘wealth creating’ was nonsense, which he rapidly, unfortunately forgot, in the great NHS ‘sell off’.
The Conservatives have an ideology, which is perhaps outsourcing or privatisation, but basically it comes down to making money. The fundamental error in the Conservative philosophy, if there is one, is that the sum of individual aspiration is not the same as the value of collective solidarity and sharing of resources. This strikes to the heart of having a NHS where there are winners and losers, for example where the NHS can run a £2.4 bn surplus but there are still A&E departments shutting in major cities. Or why should we tolerate a system of ‘league tables’ of schools which can all too easily become a ‘race to the bottom’? Individual freedom is as relevant to the voter of Labour as it is to the voter of the Conservative Party, but if there is one party that can uphold this it is not the Conservatives or the Liberal Democrats. No-one on the Left can quite ignore why Baroness Williams chose to ignore the medical Royal Colleges, the RCN, the BMA or the legal advice/38 degrees so adamantly, although it does not take Brains of Britain to work out why certain other Peers voted as they did over the section 75 regulations as amended. But the reason that Labour is unable to lead convincingly on these issues, despite rehearsing well-exhausted mantra such as ‘we are the party of the NHS’, is that the general public received a lot of the same medicine from them as they did from the Conservatives or the Liberal Democrats. Elements of the public feel there is not much to go further; the Labour Party will still be the party of the NHS for some (despite having implemented PFI and NHS Foundation Trusts), and the Conservatives will still be party of fiscal responsibility for some (despite having sent the economy into orbit due to incompetent measures culminating in avoidance of a triple-dip).
It doesn’t seem that Labour is particularly up for discussion about much. It gets easily rumbled on what should be straightforward arms of policy. For example, Martha Kearney should have been doing a fairly uncontroversial set-piece interview with Ed Miliband in the local elections, except Miliband came across as a startled, overcaffeinated rabbit in headlights, and refused doggedly to explain why his policy would not involve more borrowing (even when Ed Balls had said clearly it would.) Miliband is chained to his guilty pleasures of being perceived as the figurehead of a ‘tax and spend’ party, which is why you will never hear of him talking for a rise in corporation tax or taxing excessively millionaires (though he does wish to introduce the 50p rate, which Labour had not done for the majority of its actual period in government). It uses terms such as “predistribution” as a figleaf for not doing what many Labour voters would actually like him to do. Labour is going through the motions of receiving feedback on NHS policy, but the actual grassroots experience is that it is actually incredibly difficult for the Labour Party machine even to acknowledge actually well-meant contributions from specialists. The Labour Party, most worryingly, does not seem to understand its real problem for not standing up for the rights of workers. This should be at the heart of ‘collective responsibility’, and a way of making Unions relevant to both the public and private sector. Whilst it continues to ignore the rights of workers, in an employment court of law over unfair dismissal or otherwise, Labour will have no ‘unique selling proposition’ compared to any of the other parties.
Likewise, Labour, like the Liberal Democrats, seems to be utterly disingenious about what it chooses to support. While it seems to oppose Workfare, it seems perfectly happy to vote with the Government for minimal concessions. It opposes the Bedroom Tax, and says it wants to repeal the Health and Social Care Act (2012), but whether it does actually does so is far from certain; for example, Labour did not reverse marketisation in the NHS post-1997, and conversely accelerated it (admittedly not as fast as post-2012). No-one would be surprised if Ed Miliband goes into ‘copycat’ mode over immigration, and ends up supporting a referendum. This could be that Ed Miliband does not care about setting the agenda for what he wants to do, or simply has no control of it through a highly biased media against Labour. Essentially part of the reason that the Conservatives have ‘run out of steam’ is that they’ve run out of sectors of the population to alienate (whether that includes legal aid lawyers or GPs), or run out of things to flog off to the private sector (such as Circle, Serco, or Virgin). All this puts Labour in a highly precarious position of having to decide whether it wishes to stop yet more drifting into the private sector, or having to face an unpalatable truth (perhaps) that it is financially impossible to buy back these industries into the public sector (and to make them operate at a profit). However, the status quo is a mess. The railway industry is a fragmented disaster, with inflated prices, stakeholders managing to cherrypick the products they wish to sell to maximise their profit, with no underlying national direction. That is exactly the same mess as we have for privatised electricity, or privatised telecoms. That is exactly same mess as we will have for Royal Mail and the NHS. The whole thing is a catastrophic fiasco, and no mainstream party has the bottle to say so. The Liberal Democrats were the future once, with Nick Clegg promising to undo the culture of ‘broken promises’ before he reneged on his tuition fees pledge. UKIP are the future now, as they wish to get enough votes to have a say; despite the fact they currently do not have any MPs, if they continue to get substantial airtime from all media outlets (in a way that the NHS Action Party can only dream of), the public in their wisdom might force the Conservatives or Labour to go into coalition with UKIP.
There is clearly much more to politics than our membership of Europe, and, while the media fails to cover adequately the destruction of legal aid or the privatisation of the NHS, the quality of our debate about national issues will continue to be poor. Ed Miliband must now focus all of his resources into producing a sustainable plan to govern for a decade, the beginning of which will involve an element of ‘crisis management‘ for a stagnant economy at the beginning. The general public have incredibly short memories, and, although it has become very un-politically correct to say so, their short-termism and thirst for quick remedies has led to this mess. Ed Miliband seems to be capable of jumping onto bandwagons, such as over press regulation, but he needs to be cautious about the intricacies of policy, some of which does not require on a precise analysis of the nation’s finances at the time of 7th May 2015. With no end as yet in sight for Jon Cruddas’ in-depth policy review, and for nothing as yet effectively Labour to campaign on solidly, there is no danger of that.
