The Devolution Bill and the NHS: what will it mean?

The Cities and Local Government Devolution Bill is moving quickly through parliament, but its implications for the NHS remain unclear. In a guest blog for the Nuffield Trust, our Senior Associate Sharon Lamb, Partner at Capsticks Solicitors LLP, examines some of the important issues and unanswered questions that need to be considered. 

The Conservative Government has made devolution one of its central policy reforms this Parliament.

The Cities and Local Government Devolution Bill may be one of the boldest steps in the transformation of public and NHS services for a generation, but its implications for NHS law and services, as well as whether it will lead to major changes to NHS structures, are much less clear.

The Bill sets out a transformational structure for unified public services and holds the key for significant change to NHS services. This is because the Bill creates a new over-arching framework to transfer functions of NHS bodies (and almost all other public authorities) to local authorities. If the framework tools were used to their fullest extent across the country, most of the NHS could be transferred to local authorities meaning a bigger re-structuring than in 2012.

But, because this is just a framework with powers to be used in the future and in areas which are not yet named, it’s difficult to predict exactly how big a change it will be.

In order to allow for flexible, local deals, the government has not prescribed a 'one size fits all' approach – instead, the Bill contains wide powers and is light on detail. This lack of detail means the Bill is, in places, incongruous with existing NHS legislation. In short, it’s not clear how the Bill fits with current NHS law – and that is likely to be an issue in practice.

The Bill has had a speedy journey so far – it started life on the 21st May and is due to reach the House of Commons in October.

Speedy legislation is one thing – what those working to deliver these changes will actually want is speedy implementation.

Lawyers, often justifiably, are criticised for causing delay and cost – but delay and cost are common by-products of unclear law. Nobody will want to spend weeks or months working out how the law should be interpreted – or worse, spend taxpayer money defending legal challenge.

Three things you need to know about the Bill

So, what do you need to know about the Bill and what are the areas that could be clarified when the law makes its remaining journey through parliament.

1. What is it?

The Bill is enabling legislation. 

It creates a framework for the transfer of NHS functions, dissolution of NHS Bodies (as well as all other public bodies) and transfer of their assets to combined authorities or local authorities.

It applies to all NHS bodies – NHS trusts and foundation trusts, Care Quality Commission, NHS Litigation Authority, Monitor, clinical commissioning groups (CCGs) and NHS England – it even applies to the Department of Health. 

2. How will the transfers be made?

To make the transfer, the Secretary of State for Communities and Local Government (Greg Clark rather than Jeremy Hunt) will need to make an affirmative order.

There is no express requirement for NHS agreement – but the local authority must agree to the transfer.

During the Lords’ debate, concerns were raised about protections for NHS services. In answer, the government said that transfer by affirmative order would mean parliamentary protection for NHS functions – i.e. NHS standards could be protected in the order. In practice, affirmative orders have hardly ever been vetoed.

And, whilst these orders can be debated on the floor of the houses of parliament, MPs can’t change the orders – their only powers are to agree or not to agree. This means that these orders often look and feel like administrative orders – this may be why the powers were described by a Lords’ committee as potentially akin to Henry VIII powers – a reference to that king’s right to make law by proclamation.

3. Does the bill say anything about the NHS?

There was no reference to the NHS at all in the early drafts of the Bill.

Late in the Lords’ debate, a new change was introduced by Labour Lords about NHS oversight.

This change requires that the Secretary of State for Health (who is not the person who makes the order) must remain able to fulfil all statutory duties placed on him and mustn’t transfer regulatory or supervisory functions vested in national bodies – he must also ensure that local authorities who receive NHS functions adhere to the national standards and national information and accountability obligations placed on NHS bodies.

Three things that would improve the Bill

So, what are the areas that could be clarified to improve smooth and speedy implementation?

1. Will the bill over-ride NHS legislation?

This is probably the biggest area for clarification.

NHS legislation contains detailed and complex provisions – not surprising, since some of it dates back more than 60 years. But because the Bill is light on detail, we don’t know whether the intention is to over-ride or, in fact repeal NHS law.

The list of questions this raises is long – just some are:

• Do patients need to be consulted under existing NHS legislation if hospitals are closed or downgraded?

• Do NHS Constitution rules, which are legally binding on CCGs for their local areas, for example in relation to patient choice apply?

• Will NHS financial rules apply to local authorities?

• What about pricing and contracts?

• NHS ring-fencing: must local authorities spend NHS funds on NHS services or can they use the money for other services, for example adult social services?

At the heart of all of these questions is one key issue – to what extent will 'national' health service policies trump local devolved decision-making?

2. Do NHS bodies need to agree?

Much of the wider devolution agenda has focused on local areas 'reaching agreements'. But the Bill doesn’t refer to these local 'agreements' at all, so are these still allowed or should the new powers be used instead?

The Bill doesn’t explicitly require NHS agreement before the transfer. This contradicts NHS legislation, which does require NHS or Department of Health consent before transfers – meaning legal ambiguity about the role of the NHS in the transfer.

3. How will the Secretary of State for Health hold local authorities to account?

The late change introducing Secretary of State for Health controls sets out clarification about the oversight of NHS functions, but this provision doesn’t fit neatly with current NHS structure because despite ministerial duties to ensure a comprehensive health service, in fact, many NHS duties are already exercised by local bodies and separate regulators.

We also don’t know how the Secretary of State will control local authorities, which are not under his statutory remit.

In conclusion, the vision set out in the devolution plans represents a bold step in the transformation of public and NHS services. But, there are important areas of uncertainty, which might cause delay or legal risk – speedy implementation will be best served by clarity on the interface between differing laws.