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Home » Politics » Who exactly is in denial over the Clive Efford Bill?

Who exactly is in denial over the Clive Efford Bill?


The Private Member’s Bill brought forward by backbencher Clive Efford MP passed by 241 votes to 18.

“From crisis to opportunity — putting citizens and companies on the path to prosperity: A better functioning internal market is a key ingredient for European growth” was updated in November 2014.

This publication is part of a series that explains what the EU does in different policy areas, why the EU is involved and what the results are.

It provides that, “The European internal market, also referred to as the single market, allows people and businesses to move and trade freely across the 28-nation group. In practice, it gives individuals the right to earn a living, study or retire in another EU country.”

It further adds that, “It also gives consumers a wider choice of items to buy at competitive prices, allows them to enjoy greater protection when shopping at home, abroad or online and makes it easier and cheaper for companies large and small to do business across borders and to compete globally.”

Not wanting to be part of Europe was of course how the late great Tony Benn used to be in agreement with Enoch Powell, even though they came from totally different political stables.

On 1 January 1973, Britain joined the “Common Market”, the European Economic Community, under a previous Conservative administration.

There has of course been a strident debate as to whether the free movement of capital, so important for capitalism, is inherently compatible with socialism at all.

Being a member of the EU, the UK has to sign up to the rules and regulations of EU law.

The current position of Labour is that the market ideology went too far under previous Labour administrations.

Critics of Labour say that they are still in denial over the “sweetheart deals” to encourage private provision under a previous administration. Labour argues that this private provision was necessary to improve clear a backlog in NHS work which existed at the time, rather than introducing private provision for the sake of it.

Much criticism centres around the “independent sector treatment centres”. John Rentoul unsurprisingly found himself in agreement with the approach Labour took at the time.

Many still within Labour still loathe what happened here. NHS campaigners affiliated to other parties have been critical of Labour in inadvertently contributing to the privatisation of the NHS, and are concerned it will happen again.

Critics point to unconscionable transactions under the private finance initiative, for example.

But historically this strand of policy started under a previous Conservative administration under Lord Major.

Clive Efford MP even referred to his local hospital in Eltham having been set up as the country’s first PFI hospital in last week’s debate on “The Clive Efford Bill”.

PFI Efford

Given that we are under treaty obligations, unless there were a radical renegotiation of an unilateral exemption of the market aspect of the EU, we are stuck with a market in some form.

To argue otherwise would be in denial.

None of the front team of Labour have argued for abolition of the market altogether, to my knowledge.

But that is not to say that the ‘purchaser provider split’ might be abolished internally within England, notwithstanding treaty obligations.

The argument is that the market costs billions as it introduces “transaction costs”. The ‘household analogy’ is often used to explain the diversion of resources needed to monitoring the various transactions within a household at microlevel.

The market has become particularly problematic for the NHS, as was widely predicted before the Health and Social Care Act (2012). I myself wrote an article on the impact that section 75 Health and Social Care Act (2012) would have on the Socialist Health Association blog on 7 January 2013.

And the former CEO of NHS England, Sir David Nicholson, himself drew attention to how it had become a magnet for competition lawyers.

This was entirely to be expected as it was this clause which signalled a marked diversion from previous law under the most recent Labour government (viz section 76 sub 7 Health and Social Care Act 2012).

76 7

Elsewhere in the legislation it says that you do not have to put contracts out to competitive tender if there is only one sole bidder, which hardly ever happens.

To deny that the current legislation departs from the previous legislation is, arguably, denial.

So the “Clive Efford Bill” was finally debated last week. You can read it here. The official explanatory notes for the Bill are here.

The guidance given to the legislature is useful.

For example, for clause 6, it is provided: “The clause also enables the NHS to take advantage of exemptions to procurement obligations as set out in the European Union Directive 2014/24/EU.”

The Directive provides the ‘codification of the Teckel exemption‘.

The Teckel Exemption has proved important as an exemption from EU competition law when applied to the NHS.

Clause 1 posits that the NHS is a system based on ‘social solidarity’.

Solidarity is another mechanism of providing an exemption from EU competition law. In fact, the lack of solidarity was one of the criticisms of the Health and Social Care Bill made at the time made by ‘Richard Blogger’.

The Poucet and Pistre Case C-159, 160/91 case sheds light not heat on the ‘social solidarity’ exemption of competition law.

A reasonable concern is whether the ‘Clive Efford Bill’ hangs on by its claws to the notion of the NHS being comprised of ‘units of economic activity’  as per s.1 sub (2)(b):

s 1 2 b

But here it is the “Clive Efford Bill” which may be in denial.

Scrutiny in the Committee stage will have to be given as to whether the term here should be “general economic interest” or “general interest”.

The Government’s own guidance on this implementation of EU law is here.

If the direction of travel for all mainstream governments is genuinely to keep the proportion of private provision low, “general interest”, arguably, would be more suitable if the majority of health provision is not intended for profit.

It has been a consistent mantra from the Labour front bench “to put people before profit”, for example.

There are other issues about the significance of the words ‘deliver’ and ‘promote’ in the duty of the Secretary of State for Health.

The view of David Lock QC is here. The view of “The Campaign for the NHS 2015 Reinstatement Bill” is here.

Would a rose by any other name smell as sweet? It is a deeply entrenched position of the legal profession that lawyers look at the substance not the form.

As a statutory aid to the wording of this legislation, there is this paragraph lurking on the internet from David Lock QC from June 2013 which lends support to the notion that it is most useful if the ‘Clive Efford Bill’ is a statutory instrument best read as a whole.

Lock QC June 2013

Assuming that events do not overtake us, in other words we do not get chucked out of Europe imminently or the UK does not get bound in indefinitely over TTIP, we should in theory have some freedom to legislate for what sort of health service we want.

This is provided for in Article 168(7) TFEU.


It is therefore crucial we draft this legislation correctly.

Taking the position that there must be no criticism of the drafting of the Clive Efford Bill, arguing that it will undermine its implementation at Committee Stage, I think is an unreasonable position to adopt.

Likewise, grandstanding over “who is right” is inappropriate as well. There are possibly as many legal opinions as there are lawyers. We will not know with any certainty unless the Clive Efford Bill, if enacted, is put to the test by the judiciary; and even then, it will not be absolutely certain.

I think the Clive Efford Bill clearly positions itself as exempting itself from the overall gambit of EU competition law.

“It says what it does on the tin”. It is an immediate mechanism, if enacted, for getting rid of the toxic section 75 and baggage. It has been a useful campaigning tool.

But, if there is a Labour government of some sort in May 2015, it is already proposed that there will be regulation of health and care professionals as per the recommendations of the English Law Commission. This should have been in the last Queen’s Speech just gone, but the current Government chose to park this issue. Furthermore, quite drastic changes to the law will still be needed to promote integration of health and care to make whole person care work smoothly and legally. I first wrote about that issue here on this blog in June 2013. Decisions, made on clinical grounds, must be clear of competition obstructions, Enmeshing the NHS with the Enterprise Act over mergers has been a disastrous development in national policy, for example witnessed in the Bournemouth and Poole merger.

So it’s pretty likely that “The Efford Win” is the opening salvo in a war for the soul of the NHS. Time will tell whether UKIP are genuinely against privatisation. I’d bet my life on the fact are far from cuddly socialists. Their policy across a number of areas changes very rapidly, so only time will tell. The more parsimonious explanation is that UKIP are acting completely opportunistically, and wish to win seats off disaffected members across all the mainstream parties. A Labour-UKIP coalition would be very difficult to implement, whatever one thinks of Ed Miliband’s ability to negotiate a bacon butty.


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