Breaking with Lansley’s Act

To mark the launch episode of the Health Foundation’s podcast and the new edition of Glaziers and window breakers – which now includes Jeremy Hunt’s reflections – Nicholas Timmins assesses Hunt’s tenure as the longest serving health secretary.

In September 2012 Jeremy Hunt, then the new health secretary, inherited Andrew Lansley’s mighty, and deeply controversial, Health and Social Care Act of the same year.

The Act took effect in April 2013. It was meant, fundamentally, to reform the way the NHS functions. Instead of ‘choice and competition’ being one of the ways the NHS was meant to operate, the Act’s intention was that it should be pretty much the only way to run the NHS.

A host of new arm’s-length and statutory bodies were created to make this happen. A commissioning board that became NHS England. A new regulator with vastly extended powers to prevent anti-competitive behaviour as services were put out to tender – one which, confusingly, shared its name and its duties with an old one, Monitor. New bodies for public health and health education came into being alongside something called the Trust Development Authority (TDA) – charged with getting hospitals and services that were not yet foundation trusts up to that level. The whole, according to one of the Conservative’s more despairing senior advisers, was meant to operate like ‘a perfectly incentivised perpetual motion machine’.

This wider and stronger use of market-like mechanisms was designed to end ministerial ‘political micro-management’ of the health service. Ministers would stand right back, merely issuing a rolling annual ‘mandate’, setting out what they wanted the NHS to achieve. It would be down to the various incentives and penalties in this new model to deliver what the previous Labour government had dubbed ‘a self-improving’ NHS.

The new edition of Glaziers and window breakers – which shares the views of former health secretaries on what the job involves – for the first time includes Jeremy Hunt’s take on what he inherited, and how he sought to make it work as he became the service’s longest-serving health secretary.

Hunt’s language is restrained. But he is pretty withering about Lansley’s Act. Some of the fragmentation that it caused was ‘frankly, completely ridiculous’ he says. The Act was the ultimate extension of the market-like mechanisms that had been successfully used to get waiting times down when what the NHS increasingly needed was not competition but much better integration of health and social care. Did Hunt ignore the Act? ‘As far as we could,’ he says, as Monitor and the TDA were merged into NHS Improvement and as that body was increasingly merged with NHS England. Against the intentions of the Act, NHS England increasingly became the headquarters of the service – even though this involved complex legal workarounds and is an objective that is still far from complete because the law prohibits it.

Hunt’s time cannot be reviewed without a grasp of his relationship with Simon Stevens who became Chief Executive of NHS England in October 2014. It was Stevens who published the NHS Five year forward view. This, despite subsequent evolutions, remains the defining document of the current dispensation. While Lansley’s white paper refers to ‘choice’ and to ‘competition’ some 80 times, the Five year forward view mentions competition not at all – and choice only in the context of patients having a say over the nature of their treatment.

This was Stevens’ document. But Hunt says he was fully behind it and it was crucial that this new set of NHS reforms was seen as being set and owned (as, by and large they have been) by the NHS itself. Meanwhile Hunt himself made safety and quality the key issues of his tenure, which he argues, if consistently pursued, should make the NHS within a decade ‘the safest, highest quality health care system in the world’.

So how did the inheritance of the Lansley Act play out? And what is Hunt’s view of it?

Clearly it did not result in choice and competition becoming the way to run the NHS. Rather, something much closer to the opposite has happened with the drive for better integrated care. To that extent the Act has failed, producing the fragmentation and disjointedness that critics claimed it would. Has it reduced ‘political micro-management’ of the service? In Hunt’s time, taken as a whole, it does in some regards seem to have done. The Act’s one big success? The independence of NHS England, Hunt says. The one bit of the Act he would keep.

Which leads us into what might happen next. NHS England and Improvement, with Hunt’s approval, have produced some decidedly limited proposals for legislative change. These include a proper merger between the two and the abolition of the (increasingly ignored) requirement to put services out to tender.

But ahead of the coronavirus (COVID-19) pandemic there were strong rumours that Matt Hancock, Hunt’s successor, would like greater powers of direction over NHS England. Media stories have told us that Boris Johnson wants the same.

Quite why – and quite what they have not been able to achieve thanks to the independence of NHS England – has never been spelt out. And it has to be said that the bits of the response to COVID-19 over which ministers have had direct control – Test and Trace and Public Health England – are hardly an advertisement for ministers being the managers.

Hunt’s view is that ‘I never felt I lacked a power to give directions. I never felt that I couldn’t get the NHS to do what I needed it to do… When you’ve got 1.4 million people working for you, the issue is not the ability to give directions,’ he says. The issue is whether people are listening and the secretary of state persuasive enough so that ‘they do what you ask them to do’.

As ministers consider new NHS legislation these are words they should listen to. How far they do will decide whether the past 7 years, with an independent NHS board, proves to be merely a lacuna in the 75 year plus history of the NHS – in large measure the product of a particular relationship between Simon Stevens and Jeremy Hunt – or a lasting change.

Nicholas Timmins is a Senior Fellow at the Institute for Government and The King’s Fund.