Editorial Wednesday 12 October 2011: Lords debate Day Two

The Lords debate will be streamed online here from 11 am, and the vote is expected this afternoon.

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Click here for details of 'Will Lords QE2 end the political confusion over Health Bill? Party conferences leave us neither wiser nor better-informed', the new issue of subscription-based Health Policy Intelligence.

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Labour peers oppose the Bill (although not unanimously - Lords Darzi and Warner both spoke in its favour yesterday). They have no majority, if we assume some Lib Dem peers will support the Bill - which they will.

The Conservative Party has 218 peers, Labour has 240 and the Lib Dems 91. There are 183 crossbench peers, 24 bishops and 31 'other' (minor parties or non-affiliated).

So the crossbench peers are critical.

I don't share the view that this Bill intends to privatise the NHS.

I do share the view that it is an incredibly bad piece of legislation, which has been implemented with the political and communications skills of an artichoke. As one peer pointed out last night, "the Bill was first sold as a revolution, only for the 'r' to be dropped in Committee stage".

Even as amended, the Bill is startlingly unpopular in most of the NHS. Just at a practical level, this creates a lose-lose situation for the Coalition.

The Bill means a huge, NHS-wide top-down change programme (of the kind explicitly ruled out in the Coalition Agreement), at a time when the NHS must also realise efficiency and productivity gains to the value of £4 billion in this and each of the next three financial years. No developed health system anywhere has done that.

Oh, and there is a need to get on with reconfiguring clinically unsafe and economically unviable services (plans to do which were put on hold by the Coalition because, of course, Mr Lansley does not believe in doing things top-down).

And we have seen in the Haxby practice incident that trusting GP practices to do the right thing is going to have high-profile failures.

The Health And Social Care Bill will not have caused all the chaos that is coming the NHS's way.

But it will get the blame for it.

The Bill is absolutely poor on the issue of managing failure, an extraordinarily, plans that "a provider can apply to Monitor for a price modification without commissioner agreement". I have long argued that clinical commissioning will improve care in areas where there are highly-motivated clinical commissioners and mature relationships across health economies. That is not everywhere - and the Bill is worryingly silent on what will happen to areas which fail in a new world that does not believe in system-wide safety nets and checks and balances.

It has nothing to say about education and training.

It gives us no idea how clinical senates and networks will function in the new NHS.

And there are real concerns about the limits to market philosophy in a single-payer, tax-funded system. The Bill cannot and does not offer reassurance on this: it will come down to the personalities and behaviours of the people who staff Monitor and the NHS Co-Operation and Competition Panel. We can't know those yet, but some of the signals like the CCP's collusion with the NHS Partners Network, and Monitor's chair and acting CE Dr David Bennett's views.

And of course, the CCP will no longer be an advisory body, but part of a statutory one. Its rulings will therefore be binding.