Possible legislative change

7.13. The changes set out in this Long Term Plan can generally be achieved within the current statutory framework, but legislative change would support more rapid progress. The Acts of Parliament that currently govern the NHS give considerable weight to individual institutions working autonomously, when the success of our Plan depends mainly on collective endeavour. Local NHS bodies need to be able to work together to redesign care around patients, not services or institutions, and the same is also true for the national bodies. And the rules and processes for procurement, pricing and mergers are skewed more towards fostering competition than to enabling rapid integration of care planning and delivery.

7.14. In response to the formal request earlier in the year from the cross-party House of Commons Health and Social Care Committee and from the Prime Minister, we have in discussion with NHS colleagues, therefore developed a provisional list of potential legislative changes for Parliament’s consideration. These proposals are based on what we’ve heard from clinicians and NHS leaders, as well as national professional and representative bodies. These proposals would:

  • Give CCGs and NHS providers shared new duties to promote the ‘triple aim’ of better health for everyone, better care for all patients, and sustainability, both for their local NHS system and for the wider NHS. These statutory duties on CCGs and trusts would further support them to work in tandem with their neighbours for the benefit of their local population and wider NHS. These new reciprocal duties would also contribute to supporting our wider goal of securing a stronger chain of accountability for managing public money within and between local NHS organisations;
  • Remove specific impediments to ‘place-based’ NHS commissioning. The 2012 Act creates some barriers to ICSs being able to consider the best way of spending the total ‘NHS pound’. Lifting a number of restrictions on how CCGs can collaborate with NHS England would help, as would NHS England being able to integrate Section 7A public health functions with its core Mandate functions where beneficial;
  • Support the more effective running of ICSs by letting trusts and CCGs exercise functions, and make decisions, jointly. This is simpler and less expensive than creating an additional statutory tier of bureaucracy. It would mean giving NHS foundation trusts the power to create joint committees with others. It would allow – and encourage – the creation of a joint commissioner/provider committee in every ICS, which could operate as a transparent and publicly accountable Partnership Board. To manage conflicts of interest, any procurement decisions – including whether to procure – would be reserved to the commissioner only;
  • Support the creation of NHS integrated care trusts. Since the repeal of NHS trust legislation in 2012, the NHS has limited options if it wants to create a new NHS integrated care provider (ICP), for example to deliver primary care and community services for the first time under a single, streamlined ICP contract. Remedying this would both reduce administration costs and help with clinical sustainability. It should also be easier for proposed organisational mergers to progress, without diluting any of the current safeguards on frontline service changes;
  • Remove the counterproductive effect that general competition rules and powers can have on the integration of NHS care. We propose to remove the Competition and Markets Authority’s (CMA) duties, introduced by the 2012 Act, to intervene in NHS provider mergers, and its powers in relation to NHS pricing and NHS provider licence condition decisions. This would not affect the CMA’s critical investigations work in tackling abuses and anti-competitive behaviour in health-related markets such as the supply of drugs to the NHS. We propose similarly dispensing with Monitor’s 2012 Act competition roles, so that it could focus fully on NHS provider development and oversight;
  • Cut delays and costs of the NHS automatically having to go through procurement processes. We propose to free up NHS commissioners to decide the circumstances in which they should use procurement, subject to a ‘best value’ test to secure the best outcomes for patients and the taxpayer. The current rules lead to wasted procurement costs and fragmented provision, particularly across the GP/urgent care/community health service workforce. This would mean repealing the specific procurement requirements in the Health and Social Care 2012 Act. We also propose to free the NHS from wholesale inclusion in the Public Contract Regulations. We would instead set out our own statutory guidance for the NHS to follow. At the same time, we propose to protect and strengthen patient choice and control, including through our wider programme to deliver personalised care;
  • Increase flexibility in the NHS pricing regime. This would provide further flexibility in the setting of national prices, support the move away from activity-based tariffs where that makes sense, facilitate better integration of care and make it easier to commission Section 7A public health services as part of a bundle with other related services, on a nationally consistent basis;
  • Make it easier for NHS England and NHS Improvement to work more closely together. We propose that as a minimum, NHS England and NHS Improvement should be free to establish a joint committee and subcommittees to exercise their functions, with corresponding streamlining of non-executive and executive functions.

“That is always the process of legislation in this country. It starts off by voluntary effort, it starts off by empirical experiment, it starts by improvisation. It then establishes itself by merit, and ultimately at some stage or other the State steps in and makes what was started by voluntary action and experiment a universal service [184].”

Aneurin Bevan, April 1946


184. Bevan, A. (1946) Speech to the Institute of Hospital Administrators [Speech] 6 April 1946. Available from: https://www.sochealth.co.uk/national-health-service/the-sma-and-the-foundation-of-the-national-healthservice-dr-leslie-hilliard-1980/aneurin-bevan-and-the-foundation-of-the-nhs/bevans-speech-to-the-institute-of-hospital-administrators-6-april-1946/