Some quick thoughts on NHS’s recommendations to Government and Parliament for an NHS Bill

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On 26 September 2019, NHS England and NHS Improvement Strategy and Innovation Directorate published the "NHS’s recommendations to Government and Parliament for an NHS Bill" supporting the NHS Long-term Plan. This is a document that provides additional details on the initial proposals of 28 February 2019, after the results of a public consultation have been taken into account.

Having read and mulled it over, I think a specific passage of para 96 (in blue) evidences two major misunderstandings underpinning the approach adopted by NHS England and NHS Improvement.

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First, there is an improper characterisation of the rules in the Public Contracts Regulations 2015 as exceedingly rigid and as preventing procurement of NHS services on the basis of quality and patient experience considerations over price or cost. This flies in the face of reg 67 PCR2015, which explicitly allows for trade-offs between price/cost and quality considerations in the award of *any type* of public contract, as the contracting authority is free to determine what is best value / most economically advantageous. This also ignores i.a. the special award criteria for healthcare and other social services in reg 76 PCR2015 and the extra flexibility this creates, as per the Crown Commercial Service’s guidance, or academic commentary such as eg Pedro Telles and mine.

Second, the subjection of NHS services procurement to PCR2015 rules is attributed to EU law. However, this ignores the UK's unilateral power to exercise discretion under very significant possibilities for structuring NHS governance in a manner that wouldn't trigger those rules. This includes the space for in-house & public-public cooperation under Directive 2014/24/EU, as well as possibility of creating voucher systems underpinning patient choice in a manner that would exclude procurement rules (under Falk Pharma/Tirkonnen, see here).

Ultimately, the totality of the Sept 2019 proposals continues to ignore the origin and implications of the UK's domestic choice of structuring NHS governance around an 'NHS internal market', and solely seek to de-regulate rather than de-marketise the NHS. The same issues I raised in written evidence to the House of Commons Health and Social Care Committee regarding the previous iteration of proposals by NHS England and NHS Improvement remain relevant.

In my opinion, they should be taken into due consideration in the context of scrutinising any future NHS Bill. After all, the new proposals have cherry-picked from the Health and Social Care Committee's report and ignored crucial parts of its recommendations [2] and [7] (see here for more details).

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Failing to explore all possibilities under current rules (including under EU law) and pushing for the mere de-regulation of the NHS could have severe negative impacts on efficiency and oversight of NHS expenditure. I submit that it would not be in the public interest.

The UK Parliament must force the UK Government to understand the Brexit game before it keeps playing

In terms of Brexit, the week ahead promises to bring new meaning to the ides of March. As clearly explained in last Friday's Commons Library Brexit Briefing, the UK Parliament, and in particular the House of Commons, is faced with a complex set of votes. They have to decide whether to uphold any of the amendments to the European Union (Notification of Withdrawal) Bill (ie "Brexit Bill") introduced by the House of Lords, which concern (a) the status of EU/EEA citizens in the UK, and (b) the legal enshrinement of on a ‘meaningful’ parliamentary vote at the end of the negotiation period. The House of Commons can decide to accept either of these amendments, or rather reject them and put pressure on the House of Lords to backtrack and provide the Government with the "no strings attached" authorisation to keep playing Brexit that David Davis MP has so vocally demanded this weekend.

These are two highly politically charged (and poisonous) issues. They are also highly complex from a legal perspective. More importantly, it must be stressed that they are also very different in nature. The issue of the status of EU/EEA nationals in the UK and UK nationals in the EU/EEA constitutes a known unknown which content is undiscoverable -- because it ultimately depends on future negotiations and, in the absence of explicit political compromises, its legal resolution will depend to a large extent on the ECJ's use of the principle of legitimate expectations in what promises to be protracted and difficult litigation down the line. Differently, the discussion on the possibility of creating a mechanism for 'meaningful' parliamentary decisions after Article 50 TEU has been triggered and, more generally, on whether Parliament can at any later point in time stop or defer the Brexit decision is a known unknown that is however discoverable.

The right time and occasion for such discovery was the Miller litigation before the Supreme Court. However, due to the UK Supreme Court's illegal failure to seek clarification on the implications and (ir)revocability of a notice under Article 50 TEU, this known unknown remains undiscovered. Given this avoidable uncertainty, it is painfully obvious that the debate being had at the UK Parliament is built on no legal foundation whatsoever. Indeed, as the Commons Library put it,

Underlying the whole debate is the unanswered question of whether a withdrawal notification can be suspended or revoked. Although there is a widespread assumption that it cannot, no court has ruled on this and there is considerable opinion that notification could in fact be revoked. The effects of a [parliamentary] vote against a withdrawal agreement (or against leaving without an agreement) would be completely different depending on the answer.

In simple terms, the UK Parliament is now faced with a skewed and asymmetric choice between two options of different legal weight and plausibility and, more importantly, which carry very different risks to the long term interests of the UK and its citizens. On the one hand, assuming irrevocability of an Art 50 TEU notification is a conservative approach to this protracted issue and works as the worse case scenario, and requires Parliament to be ready to approve the Brexit Bill on the basis that a Government's notification to the EU Council carries the (accepted) risk of the UK leaving the EU in two years' time without a deal. This is indeed a realistic scenario, as timely stressed today in the Commons Select Committee on Foreign Affairs' report "Article 50 negotiations: Implications of 'No Deal'". A vote to pass the Brexit Bill explicitly on these terms seems unlikely because MPs can hardly be expected to tell UK citizens that they support Brexit at any cost. However, this is what they would likely be doing, in particular if they passed the Brexit Bill without the House of Lords amendment (b above).

On the other hand, assuming revocability of an Art 50 TEU is a legally very risky strategy that works as a best case scenario, which would allow Parliament to approve the Brexti Bill (with or without the House of Lords amendment) on the hope that they can prevent a calamitous hard Brexit (ie Brexit with no deal) or even a deleterious soft Brexit (ie Brexit with a bad deal) in the future. The problem with this scenario is that it is exceedingly risky and would create a smoke screen to cover the implications of giving an irrevocable notification at this point in time. Moreover, it relies on a moving legal construction that rests either on the Art 50(2) TEU notification being strictly revocable, or in a dynamic understanding of what 'own constitutional requirements' means in Art 50(1) TEU -- to the effect that, as suggested by the now famous "Three Knights Opinion", a conditional notification requiring a further vote in the UK Parliament can be given, even if the condition is not explicitly stated in the notification.

In my view, there are now two options for the UK Parliament to seek to pursue this best case scenario. The first option encompasses a strategy aimed at making it impossible for the UK Government to continue playing Brexit without clarifying whether a scenario where the UK Parliament can have a 'meaningful' vote down the line actually exists, or if it is just normatively-biased wishful legal thinking. In short, to this effect, the UK Parliament needs to approve the Brexit Bill in a way that imposes an obligation on Theresa May PM's Government to notify to the EU Council that a decision to withdraw from the EU has been adopted in principle, but that such decision remains conditional on the UK Parliament's confirmation once the terms of the deal reached at the end of the two year period (or earlier) are settled.

This would, under the duty of sincere cooperation not only make it possible but, in my view, require the EU Council to ask the ECJ whether such notification seemingly in compliance with the UK's own constitutional requirements is a valid notification for the purposes of Art 50 TEU and whether that conditionality binds the EU Institutions and Member States. Rather than hoping for the best in the Irish litigation where Jolyon Maugham QC is trying to achieve this certainty, the way I have just sketched would be the quickest and most guaranteed avenue to (finally) obtain a decision from the ECJ settling the issue once and for all.

The second option is for the UK Parliament to cave in to the existing pressure and authorise the UK Government to give notice unconditionally -- that is, notably, without keeping the amendment introduced by the House of Lords -- and then hope that they got it right when they assumed that the best case scenario was actually in the cards. In my opinion, no responsible member of the UK Parliament (and in particular of the House of Commons) should gamble the long term interests of the UK and its citizens on such optimistic hopes, particularly when there is a way to clear up this uncertainty before it is too late and the process set in motion by an Art 50 TEU notification cannot be legally stopped (under EU law, which is a major risk currently very difficult to assess).

Of course, there would be some short term political cost if the UK Parliament decided to try out the strategy I am proposing. It could be seen as a waste of time if the ECJ's decision on the EU Council's request were to determine that and Art 50 notification can be conditional or revocable. It could also be seen as highly problematic if the ECJ decided the opposite and, after all, the UK Parliament was faced later with the same odious decision that the worse case scenario implies. However, unless the UK Parliament is willing to crash and burn in the worse case scenario, there is value in making the consequences of an irrevocable notification as clear as possible to UK politicians and UK citizens alike. Currently, democratic processes are skewed and distorted by an avoidable legal uncertainty. In my view, it is not wise, nor legitimate, to put pressure on the House of Commons (or later in the House of Lords) to ignore this very significant risk solely in the pursuit of preserving a short term political capital that Theresa May PM and her Government seem too willing to keep for themselves.