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Honouring the Pledges

Policy v Politics

The NHS faces a huge challenge (says Tony Hockley); it must transform, and do so whilst addressing deep-rooted structural and operational inefficiencies. The £8bn funding commitment is the minimum that NHS England thinks viable to achieve this. This time the upfront funding commitment cannot be allowed to be swallowed up by internal inflationary pressures. With the cuts that must take place in the other public services, giving the NHS more cash without fundamental change is simply untenable.

Whilst everyone thinks of the Maastricht rebels as the threat to John Major’s government in the run-up to the 1997 election, the real threat in the Commons came from his NHS rebels. The then health secretary, Stephen Dorrell was faced with the campaign ‘Save Edgware Hospital’ in full swing when he came to the Department of Health supported by local Tory MPs. Such was the spirit of the Conservative Party at the time that they had no apparent concern that they could should they bring the Government down. The Labour Party missed no opportunity to use their Opposition Days to force votes on the NHS, in the hope of a subsequent No Confidence motion. They even drafted their motions to include the NHS in Northern Ireland in an attempt to win over the Unionists to their side. The Government teetered on the brink every time. The task I, as Special Adviser in the Department or Health faced, along with junior health ministers, was to make sure MPs were briefed on the aims and direction of health reform and explain the details to them.

The sorry story of the Lansley reforms after the 2010 Coalition was formed is that the Party trusted him on the NHS to such a degree that they let him get on with it. Once the going turned rough they didn’t understand the policies, the fuss, how it had happened, or what the exit strategy might be. With a slender majority this simply mustn’t happen.

The advantage that David Cameron has is the unprecedented consensus around Simon Stevens’ ‘Five Year Forward View’. But the Prime Minister must take a lead in explaining to his backbenches what this entails, what it may mean for their local NHS providers and the ultimate benefits for patients. This must be done sooner rather than later.

* Dr Tony Hockley teaches in the Social Policy Department at the LSE. He is Director of the Policy Analysis Centre and specialises in health policy analysis. He is the co-author of Politeia’s Working Systems? Towards Safer NHS Nursing and author of Premium on Patients.

 

Human Rights v British Rights?

The new Justice Secretary, (Jocky McLean writes) Michael Gove, has signalled that the government will honour its manifesto pledge to replace the Human Rights Act (HRA) with a British Bill of Rights. The commitment followed the Report of the Commission on a Bill of Rights, in late 2012. Seven members (out of nine) supported a UK Bill of Rights, believing on balance that a strong argument existed for such a bill, provided it built on UK obligations under the European Convention on Human Rights, and giving the same protection as now exists under the Human Rights Act. The Convention was heavily influenced by British common law principles, and ratified by the UK in 1951.

The HRA, passed in 1998 to incorporate the Convention rights into British Law, has continued to prompt fierce debate. The main points of contention relate to the role of European judges and the treatment of the Convention as a ‘living instrument’.

Critics, including Martin Howe QC, highlight the judicial activism of European judges in interpreting the Convention as a ‘living instrument’. On issues such as a right to family life (art 8), or prisoners’ votes, the Strasbourg court is seen to have gone beyond the Convention’s original conception. The UK Supreme Court could bring such contentious decisions closer to the national sentiment.

Supporters of the present arrangements argue that the Convention, like other written enumerations of positive rights, must be a ‘living instrument’ to remain relevant.

A third approach is to question the validity of imposing a rights based approach on Britain’s justice tradition, which is based on liberty under the law: for this reasonand others the concept of ‘human rights’ while having many defenders, has a number of articulate, reasonable and intellectually sophisticated critics.

Nonetheless, A UK Bill of Rights would, it is believed, have a number of advantages. These will be the focus for debate in the coming months.

First, the influence of Strasbourg judgements will be reduced by making them ‘advisory’ to domestic courts. The degree of change will need to be clarified. As matter stand in domestic law, UK courts must ‘take [them] into account’; and under international law, as a signatory to the ECHR and a member of the Council of Europe, the UK is bound by judgements of the Strasbourg court to which it is a party. It’s unclear whether the UK could remain a signatory under the draft proposals.

Second, a UK Bill of Rights would seek to restore the balance of power in favour of Parliament. Opponents of the HRA argue that the wide powers allowed to courts to interpret legislation (sections 3 and 4) have appeared to be used in some cases against the will of Parliament. Some debate will be prompted over whether a new system would pit the judiciary and Parliament against each other, or as Dinah Rose QC points out, courts could also resort to common law principles such as the principle of legality to thwart Parliament.

Many questions must yet be answered if the government is to reassure MPs. How would such a measure fit with Scottish devolution or the Good Friday Agreement? How would such rights be protected and enforced? What would be the relationship between courts and parliament? Would the UK remain a signatory of the ECHR and in the Council of Europe? What would the international implications be?

If change is minimal, is the exercise worth it? If there is to be substantial change, then one thing is sure, there will be a battle ahead. If successful, Michael Gove will prove to be a formidable reformer.

*Jocky McLean specialises in the law and contributes to Politeia’s Justice Programme.

Dr Tony Hockley

Dr Tony Hockley is a Visiting Senior Fellow at the Department of Social Policy at the London School of Economics & Political Science. He is Director of Policy Analysis Centre Ltd and the co-author of Politeia’s Working Systems: Towards Safer NHS Nursing (2014) and A Premium on Patients: Funding the Future NHS (2010).

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