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Competition, conspiracy and cock-ups

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The row over section 75 has certainly been chaotic, but was it a U-turn? Another privatisation plot? Ministers are emphatic that this was a cock-up, not a conspiracy.

Health reporting HSJ and LGC logo

Dame Sally Davies’ dramatic warning about the waning efficacy of antibiotics was obviously the most important health announcement of the week, possibly decade. So let’s stick to relative trivia.

‘Had there been a plot to “slip out” a more competitive version of the regulations than agreed in debate on the Lansley act?’

No, not former shadow health secretary Liam Fox’s economically illiterate proposal to freeze all public spending, including on health. What a lucky escape the NHS had when he was moved on.

No, I mean the row over the health department’s NHS (Procurement, Patient Choice and Competition) Regulations 2013 (SI 2013/257) publication − otherwise known as “section 75” − which caused a spectacular furore when “slipped out” last month.

By the time I was getting my head around some very erudite blogs and angry columns (my redoubtable Guardian colleague, Polly Toynbee, to the fore), ministers had withdrawn the offending regulation.

“A humiliating U-turn” was how Labour’s Andy Burnham described the Commons statement made by Lib Dem health minister Norman Lamb: total confusion over the role of clinical commissioning groups and of Monitor just weeks before the new regime comes into force.

Jittery MPs

It was certainly chaotic, but was it a U-turn? Had there been a plot to “slip out” a more competitive version of the regulations than agreed during debate on the Lansley act? Was it another privatisation plot?

‘I plan to cherish this Huntian sentence: “The weeds of failure grow more quickly in a garden of mediocrity”’

I thought it worth checking and asked around. Ministers are emphatic that this was a cock-up, not a conspiracy. Officials who drafted the fateful section 75 say it was an attempt to clarify earlier regulations involving both procurement and commissioning (“commissioning is a 20-year failure” Nigel Edwards remarked at the Nuffield Health summit last week) in the sense of competition law. As so often, the earlier regulations date from 2006-08, deep into New Labour’s modernising phase.

As it happens, Jeremy Hunt was in Japan (he’s interested in how Japan treats its many elderly, but his wife is Japanese, too) when the draft was approved, carelessly by the sound of it (where was worldly Lord Freddy Howe?).

Mr Hunt has been dashing around reassuring jittery Tory MPs − they’re all jittery since Eastleigh − that NHS reorganisation is about means, not ends. Someone tells me he’s even said that section 75 is “not about marketisation of the NHS, more about innovation via traditional NHS structures”.

I’m usually on the side of “cock-up, not conspiracy” in government (it makes me a duller columnist) and take Mr Hunt’s attack on hospital mediocrity − the “not coming last” pack mentality − in his Nuffield Trust summit speech as consistent with that view.

‘Remuddle it again’

I plan to cherish this Huntian sentence: “The weeds of failure grow more quickly in a garden of mediocrity.” Which sounds like a translated Japanese proverb. Easily mocked, but sound, albeit not as snappy as another proverb we heard at the Nuffield session: “The goat that belongs to the village dies” (ie: someone has to be responsible when things go wrong on ward).

What persuaded me that section 75 had been a cock-up was listening to earnest officials in Nuffield Trust summit corridors explaining the complexity (above my head) of their bid to clarify and merge Labour’s 2006-08 rules − but not expand or open them to EU competition law, as feared.

“Perhaps we should remuddle it again,” said one. You can find an excellent summary of the controversy in the 30th report (HL paper 136) of the Lords secondary legislation scrutiny committee, which decided to publish its concerns about the fear of mandatory competitive tendering, despite Norman Lamb’s surrender.

Given hyper-sensitivity about the competition regime and NHS mistrust of ministerial motives, it was a dreadful clanger all the same.

Michael White writes about politics for The Guardian

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