Making a Virtue of variation? STPs and the fragmentation of the English NHS.

Last updated on November 24th, 2017 at 05:42 pm

Geographic reform of the NHS is not new: region, district, area, and locality are all familiar terms in NHS history, and notions of “place” as an organising principle retain an intrinsic appeal for policy-makers.  Recently, the English NHS has now been reorganised along spatial lines with the creation of 44 geographically-defined STP (Sustainability and Transformation Plan) footprints, to ‘deliver the right care, in the right place, with optimal value’. This is in the spirit of the King’s Fund argument that “place-based systems of care offers the best opportunity for NHS organisations to tackle the growing challenges that they are faced with.”

Critics have argued that far from being a neutral, technocratic process, the creation of arbitrary geographies delivers “spatial closure,” shutting down argument and marginalising debate about the fundamental political choices which determine the nature of our public services. Recent research examining STPs goes further, suggesting their geographic focus enables the “highly resource-constrained management of health systems.”

It is argued here that, unlike previous reconfigurations, STPs deliver outcomes which systematically undermine the national in the national health service. In contrast to Beveridge-era concerns with equity, fairness, and collaboration, STPs privilege the superiority of “local choice” over national ambition which, in the context of austerity,  enhances and accentuates the geographic variation of care provision,  undermining the principle of universality.

The NHS should ensure the achievement of equitable access to health care regardless of region of residence. Policymakers have sought to minimise geographic variation, but it remains a persistent and ubiquitous problem, and the NHS Atlas of Variation maintains that much of this variation is “unwarranted.” However, rather than identifying NHS funding restrictions, geographic fragmentation of the NHS, or the disruptive role of the private sector as causative, it argues that “limited professional knowledge” and “disparate organisational performance” are the drivers.

The reality is that STPs areas are forced to make hard choices about the services they provide, and to whom, and they make these choices without regard to national consistency. Responding to fixed financial resources and increasing demand their approach has been six-fold, characterised by the King’s Fund: Deflection; Delay; Denial; Selection; Deterrence; and Dilution, each of which can be seen in action within STPs.

GP referral management schemes  delay, defer, and deflect patients away from secondary care; the explicit exclusion of certain groups (smokers, the obese) denies care; blaming patients for presenting inappropriately deters the future expression of need; the tightening of referral criteria (for hip replacements, IVF, or continuing healthcare funding) selects patients; and increasing variation in the funding of community nursing services dilutes quality.

Rather than making transparent the boundaries of care and seeking national agreement on acceptable variation, risk, or quality thresholds, STPs are developing and implementing their own local criteria and priorities, the effects of which compound geographic variation and institutionalise the postcode lottery of care: the decision whether care is “warranted” or “unwarranted” is one fully for local determination.

Further, this variation has been exacerbated by the marketisation of the NHS. Expedited by the “any qualified provider” test , the application of competition law, and the diffusion of accountability which has made effective public challenge more difficult, local markets in healthcare  have been exploited by private providers, specifically in community services  and  primary care.  As Birch and Siemiatycki note, private contractors negotiate deals on a case-by-case basis, and this splintering leads to uneven development: some places end up better served than others.

Evidence from Italy’s decentralisation of healthcare suggests the end result is a zero-sum game, where the gains for the stronger are counterbalanced by the reductions in performance of the weaker, which can lead to greater inequalities. In England, there is emerging evidence from the Care Quality Commission that spatial variation has intensified, variation which will only be intensified through the new regime of inter-spatial competition for funding, with funding held back until health systems develop acceptable plans.

The NHS in England can now be viewed analytically as no more than a set of contiguous places, in each of which problems that were forged nationally are required to be owned and solved. Variation raises important policy questions: within a marketized, fragmented NHS how will policies and governance tools ensure that the reduction of unwarranted variation is prioritised? When the mantra of local choice is paramount, how will solutions to critical, national problems such as the care of the elderly be found when parts of the system are owned by different actors, each with competing goals and values, and the assessment of local needs is separated from the provision of services.

Increasing “warranted” variation in care provision across England challenges the idea of a national health service providing universal coverage through a universal funding system (taxation). In a multi-speed, variegated, health service where national accountability is constrained and national funding limited, localised funding solutions to meet local needs may be sought. Do personal ‘year of care’ budgets, and Greater Manchester’s consideration of local funding for social care portend a plural healthcare funding regime?   There is a need for future research to investigate the impact of NHS fragmentation and local choice upon accountability, equity, and variation across the NHS, and for citizens concerned about the survival of the NHS to be alert to the wider impact of these upon the founding principles of the NHS.

Why we need a written constitution

Last updated on October 11th, 2017 at 02:58 pm

This blog has been written by Gavin Barker from Cornwall. Gavin addresses the issues of democratic accountability and the protections that need building into our system against undue corporate influence, to ensure the provision of our public services and to create a constitutional framework. We have included a link to We Own It‘s Public Users Bill as further material for debate on this subject.

In an earlier article, Corporate Culture, Public Services and Democracy, Jessica Ormerod documents the corrosive effect of a managerial culture of the public sector that sought to remodel public services on private sector ideals of  economic discipline. ‘Efficiency’; ‘value for money’; ‘innovation’ and ‘entrepreneurship’ became the prevaling values that guided policy making rather than human need. Citizens were re-defined as consumers and customer choice replaced democratic accountability. Education and health services were reconfigured in ways that pitched public sector providers against private companies under the disciplining hand of the market.

We now know, to our cost, just how damaging this experiment in the application of free market models has been. We have a failing education system, an NHS on its knees, rip-off energy companies, the housing crisis and rising homelessness. Beyond that, a retreating welfare state has been weaponised to attack the very people it purports to help.

What this article seeks to do is pick up on the particular point she makes on, “The cumulative direction of policy decisions since the late 1970’s…” which “has created a substantial shift in the governance and management of the state sector” over the last 40 years.

Governance and management of the public sector is inseparable from more fundamental issues to do with the rules of government which form a nation’s constitution. We are one of only three major democracies that does not have a written, codified constitution. What we have instead is an ‘unwritten’ or, more accurately, an uncodified constitution; a sprawling, opaque and antiquated collection of documents: unwritten conventions, royal prerogatives, reserve powers, over powerful executive and unelected Lords. Few voters understand the rules by which they are governed. Even constitutional experts wrestle with the lack of clarity of unwritten conventions, some of which deal with issues of war and peace! [I]  For example, who until recently had heard of Henry VIII clauses written into a proposed piece of legislation which empowers government ministers to circumvent parliamentary scrutiny?

What all this means is that the framework of governance that forms our constitution is dangerously out of kilter with basic democratic principles. Its very opacity affords too many loopholes for a self-serving political class to make up the rules of government as they go along. Their interests are closely aligned with the corporations who have benefitted so lucratively from the privatisation of public services. As such, the invasive assault right at the heart of the public sector is as much about the absence of an over-arching governing framework, as it is about a narrow free market ideology.

Five major fault lines

Before setting out how we might remedy this situation, we need to map out in more detail five major fault points that make constitutional reform so urgent. We need to expose the assumption that many people adhere to; that we already have a democracy. After all, we have regular elections, freedom of speech and assembly. We can form Facebook groups to campaign on almost anything, go on demos, write to our MP and more. But while it seems as though we live in a real democracy this is increasingly a superficial experience. Look harder, dig deeper and you will find multiple cracks and disconnections. We have the formal trappings of democracy but the substance has been hollowed out. The rules have been gamed. Free speech and the right to vote no longer translate into democratic change.

A broken electoral system

It is no longer tenable to claim that we have free and fair elections in this country. What we have is a broken and outdated First Past The Post System that once worked but now doesn’t. It worked reasonably well while we had relative social homogeneity; two broad social classes that dominated the first half of the  20th century. There was a strong white working class, union-based solidarity that broadly voted Labour and a professional middle and managerial class that voted Conservative. From the 1950’s with growing immigration, de-industrialisation and occupational diversity there was an emergence of identity politics based on feminism, race and gender. Together with a new Green politics this gave rise to a multiplicity of political voices that were not easily captured by monolithic party blocks. They wanted their own voice – and still do.

The result has been the emergence of plural party politics shoe-horned into an election system built for a two-horse race. The more political parties that stand at election time, the more the vote is split, leading to grossly distorted outcomes. For example, in Cornwall where I live, less than half the people voted Conservative but they took all six constituency seats.

The most telling fact is revealed in a joint report by Labour and Make Votes Matter: for 13 of the last 16 UK General Elections (now 14 out of the last 17 UK elections) most people voted for parties to the left of the Conservatives. Despite this we have had Conservative majority governments for most of that period. As the report points out:

“Under PR, it seems beyond doubt modern British history would have been very different. The Thatcher era of unmoderated right-wing government simply could not have happened.” (pg 24)

The report also draws on research suggesting a strong causal link between PR voting systems and low income inequality, a higher proportion of female politicians, stronger welfare states, and a more equitable distribution of public goods. But why so many positives? Researchers Birchfield and Crepaz explain these results as follows:

“The more widespread the access to political institutions, and the more representative the political system, the more citizens will take part in the political process to change it in their favour which will manifest itself, among other things, in lower income inequality. Such consensual political institutions make the government more responsive to the demands of a wider range of citizens”[ii]

The flip side to this is that corporate lobbyists find it much more difficult to push their agenda when power is dispersed across a multi-party government. There are too many people to talk to and convince, too many points at which their agenda is potentially subject to public exposure, or when agreement by one party precipitates withdrawal of support by another. They flourish best under majoritarian parliaments with one dominant party, one set of cabinet members and one prime minister.

Diminishing accountability of Parliament to the people

A dysfunctional election system diminishes its capacity to respond to and reflect diverse public opinion. Yet I suspect most people hold onto the hazy belief that there remains a workable democratic accountability to the people and that our elected representatives remain an effective forum to hold the government to account.

Look harder and you see something different. Firstly, we do not have a complete separation of powers between an Executive (government), Legislature (House of Commons) and Judiciary. It is certainly a constitutional principle we aspire to, but not one that plays out in practice. What we have is a fusion between Executive and Legislature. The government is drawn from the House of Commons and unelected Lords. While this might seem democratic and reasonable at one level, it seriously undermines the constitutional role of parliament to be an independent democratic forum that holds the government to account.

Secondly, party discipline and MPs’ career aspirations within and outside Parliament have instilled a compliant political culture and deference to the Executive. Party discipline and the Whip system has a dampening effect on independent thinking and the willingness of MPs to act according to their conscience. Moreover, an increasingly professional political class often sees a career as an MP as a launch pad for lucrative consultancy and private sector contracts outside Parliament – as instanced by George Osborne’s meteoric salary advancement through part-time posts in the city and the media. This is a problem for all parties, not just the Conservatives.

An over powerful executive

As previously referred to, the royal prerogative and other statutory powers afford government the means to circumvent parliamentary accountability.

They are relics from monarchy rule which invest exceptional and necessary powers to government ministers to act quickly in emergencies. These kinds of powers are a common feature in democracies worldwide, but are usually governed by written, codified constitutions which place limits on their use and provide mechanisms for scrutiny. Because the UK lacks a codified constitution, use of these powers goes largely unchecked, presenting real potential for abuse.

The scale of that potential is graphically illustrated in the recent proposals that form part of the Great Repeal Bill which will allow ministers to re-write large parts of EU law once these become part of UK law, without reference to Parliament. The main purpose of the bill is to put all EU law into UK law, so that on the day we leave the European Union there will be continuity. Included in the Bill are powers for ministers to amend and repeal primary legislation through Statutory Instruments – also known as Henry VIII powers.

It really doesn’t take much imagination to see the temptation for ministers to move beyond necessary technical changes and instead bring a wrecking ball to employment and consumer rights along with environmental protection.

Examples in the recent past where the government has introduced significant policy changes through such Statutory Instruments include: the abolition of university maintenance grants; allowing fracking in national parks; and major changes to voter registration [iii].

The erosion of the Rule of Law and the right to a fair trial

The Rule of Law is one of the core principles of our unwritten constitution; no-one is above the law and everyone has the right to a fair trial. In practice your right to a fair trial depends on how deep your pockets are.

This is why the recent High Court ruling on tribunal fees was such a dramatic reminder of what we have lost. It should never have been the case that people were denied access to justice on the basis of prohibitive fees, nor that it took so long to remedy this outrage. Government legislation introduced fees into employment tribunals in 2013 and this resulted in a substantial fall in the number of claims being sought – and it disproportionately affected women.

It is no accident that Lord Reed, one of the presiding judges who delivered the judgement against the government, deliberately referred to the Magna Carta, expressing the Rule of Law: “We will sell to no man, we will not deny or defer to any man either justice or right.”

Earlier examples of the erosion of the rule of law include the use of detention without trial in Ireland at various points since the nineteenth century and in Great Britain in both world wars.

The unrestrained power of Parliament

The epicentre on which these fault lines converge is the biggest one of all; the doctrine of Parliamentary Supremacy.  Parliamentary sovereignty is commonly regarded as the cornerstone of our unwritten Constitution. For many a source of pride, for Parliament had to win this power through bloody civil war and a series of constitutional crises that pitched absolute monarchical power against individual rights and freedoms. Yet while those rights and freedoms were freely given to men of property, they were only grudgingly extended to the whole population through further upheaval, mass civil disobedience and widespread protest.

The point is that the legislative power of Parliament is legally unlimited and all of its legislation must be applied by the courts. It can completely re-shape electoral rules or suspend elections indefinitely through routine legislation. There are no special additional legislative procedures accorded to laws of a fundamental constitutional nature as found in written constitutions.

Such unlimited power is dangerous. A weak House of Lords, a neutral Head of State and the absence of a constitutional court allows the executive to dominate the whole legal and political system through its party majority in the House of Commons. In effect, rather than being accountable to the people, Parliament is subsumed to the executive in what has been termed ‘elective dictatorship’ [iv].  

What can be done?

All the faults highlighted above, underline the urgency for a written constitution that sets out in plain English the rules by which we agree to be governed. This is not simply about updating the framework of governance by, for example, doing away with an unelected House of Lords and replacing it with an elected upper chamber. We must set clear constraints on the power of Parliament. Parliamentary sovereignty must be replaced by Popular Sovereignty, in the form of a written constitution, with elections at both national and local level based on proportional representation. Seats must match votes.

The obvious way forward is to convene citizens’ conventions on constitutional reform. Yet this runs up against two hurdles. Firstly, in themselves citizens’ conventions for constitutional reform hardly pose a challenge to vested interests. These are by nature, thoughtful reflective forums for blue sky thinking, they lack a hard campaigning edge. One might even hold a citizens’ convention in Parliament itself and get no more than a polite pat on the back for imaginative thinking. Parliament need not respond or take any notice of its recommendations.

The second and more serious hurdle is that to most people, the very words ‘constitutional convention’ sound remote, clunky and irrelevant in the face of more pressing challenges: an NHS on its knees, the housing crisis, and a failing education system.

But there is an emphatic connection between these crises and a failure of governance. The argument that needs to be made, not once but again and again, is that these crises cannot be resolved without reference to principles of economic, social and environmental justice; and these in turn should not be separate from the principles that guide the work of Parliament. In other words, a written constitution must also include a clear legislative framework that gives Parliament a moral compass and direction.

If the argument is made in that way, and if these governing principles are set out in a short simple charter – let’s call it a People’s Charter – it will become the hook by which a broader public is drawn into a sustained conversation about the relevance and urgency of constitutional reform. A charter of governing principles would also be the means by which to knit together the multiplicity of community and campaign groups across the country into a new collective ‘WE’. In doing so, constitutional reform gains the vital campaign momentum that a citizens’ convention lacks. This is not an either/or but a complementary strategy which is much more likely to succeed.

Brexit forms a constitutional moment

It is Brexit which serves as a constitutional ‘moment’ to commence this project. It introduced the notion of a popular sovereignty as opposed to a discredited parliamentary sovereignty. The Leave vote was not just a rejection of a remote and unaccountable Brussels technocracy, but the political status quo at Westminster. It exposed a nascent English nationalism combined with simmering regional resentments at the economic and political marginalisation of those living outside the affluent south east.

As constitutional expert Anthony Barnett has pointed out, Brexit delivered a body blow to Parliamentary sovereignty, the cornerstone of our unwritten constitution. The ‘will of the people’ overturned the will of Parliament, the majority of whose members in both the Commons and Lords voted to remain. The British public, however misled and lied to by a cynical right-wing media, made a decision mandated by referendum to leave the EU. Only a second referendum can reverse that decision. This is not about who is ‘right’, but whose will must be respected.

Whether or not that second referendum happens, progressives from across the centre left must grab the opportunity. The initiative may have to come outside traditional party structures for these are more about winning elections than changing the rules by which power is won and administered. It will more likely come from an alliance of civil society organisations that later seek to embed their agenda in party manifestoes.

A constitutional moment may be two years or a decade away but the point is to begin this process now: to plan, strategise and form alliances with the single over-riding goal of winning back the state from the grip of corporate power and inaugurating a democratic revolution.

[i] One of these is the debate over the existence and scope of any constitutional rule that parliamentary approval for military action is necessary before the government enters into armed conflict abroad. This is ongoing see Briefing Paper 12- May 2015 Parliamentary approval for military action

[ii] See pg 26 of report The Many Not The Few by Make Votes Matter

[iii] See the report ‘A Democratic Brexit’ by Unlock Democracy

[iv] This was recognised as far back as 1976  by Lord Hailsham who remarked:
The Sovereignty of Parliament has increasingly become, in practice, the sovereignty of the Commons, and the sovereignty of the Commons has increasingly become the sovereignty of the government, which, in addition to its influence in Parliament, controls the party whips, the party machine and the civil service.

 This means that what has always been an elective dictatorship in theory, but one in which the component parts operated in practice to control one another, has become a machine in which one of those parts has come to exercise a predominant influence over the rest (see Mapping the Path   to Codifying – or not Codifying – the UK’s Constitution).