Andreas Whittam Smith: The Utopia Lansley dreamt of is beyond politics

The NHS would be turned into a clockwork universe - a perfectly incentivised perpetual motion machine

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The Independent Online

It cannot be often that when a Bill completes all its stages of parliamentary scrutiny and becomes an Act that a distinguished commentator feels moved to publish a book a few months later entitled Never Again? Or that a newspaper serialises it, as The Independent did last week. In fact, Nicholas Timmins's account of the making of the legislation that will transform the National Health Service, the Health and Social Care Act 2012, could as well bear the title "Arrogance in Public Office: A Study in Coalition Government and Policy-making".

The arrogance is Andrew Lansley's, the Secretary of State for Health. When he came into office in May 2010, the National Health Service was in better form than it had been for a long time. It had just enjoyed a sustained period of increased resources. Waiting lists had never been so short. Public satisfaction was at its highest ever. An international comparison of national health systems had just placed the UK second in excellence, behind the Netherlands but ahead of Australia, Canada, Germany, New Zealand and the United States.

Lansley, however, isn't a man to leave well alone. This is a characteristic of politicians. It reflects the fact that they generally don't have long in high office. Lansley probably thought this was his only chance to leave a mark. But he could have contented himself with pushing further ahead in the direction that the Labour government had set, which is what the speeches he had been making in Opposition suggested he would do. There had been 20 reorganisations of the NHS since 1974 and an argument could be made for a bit more streamlining.

Instead, Lansley put forward a Utopian proposal. The NHS would be redesigned so that it became a self-improving organisation, running without direction by Government ministers, one in which, as Timmins explains, choice and competition, money following the patient, independent regulation of foundation trusts, quality inspections, the use of internal market prices and the great variety of NHS providers would produce an organisation whose performance would improve as a result of these assorted pressures, penalties, incentives and oversight. The NHS was to be a clockwork universe or a perfectly incentivised, perpetual motion machine.

But this wasn't the limit of Lansley's ambitions. The whole new structure would be fixed in place by legislation. Executive decisions, which would have sufficed, weren't good enough. One advantage of legislation was that it would make it much harder for Lansley's successors to undo what he had wrought. He would create Utopia and make it stand for ever. Admittedly, this required a Bill that was monstrously long. It was three times the size of the 1946 Act that founded the service. And it was complex. Near the end of its prolonged scrutiny, Professor Malcolm Grant, who was newly appointed as chair of the NHS Commissioning Board, gave the Commons Health Select Committee his considered opinion that it was "completely unintelligible". When asked whose fault it was that people did not understand, the Secretary of State replied: "What's not to understand?"

Naturally, Lansley wouldn't listen to criticisms. Civil servants told Timmins that "the biggest challenge was trying to get the Secretary of State to focus on the money – the £20bn and the sheer scale of the financial challenge". One source in Timmins's book characterised Lansley's approach thus: "I am going to do these reforms anyway, irrespective of whether there are any financial issues. I am not going to let the mere matter of the financial context stop me getting on with this because I think they are the right things to do. And I have thought it all through." Didn't the financial crisis change things? "He completely ignored it." And when even 6,000 people took the trouble to comment on the White Paper, Lansley was more or less unmoved.

Only four months have passed since the Bill became law, so it is too soon to see how it is working out. But some preliminary observations can be made. Once the Utopian nature of Lansley's plans was perceived, alarm bells should have started ringing in Downing Street and elsewhere in Whitehall. But Messrs Cameron and Clegg were, as the saying goes, asleep at the wheel. Otherwise, they would have remembered that the ideal society described by Sir Thomas More's Utopia has never been put into practice. The rule is simple: if it is Utopian, it cannot be done. The NHS will never become a self-improving organisation requiring no outside intervention. Alastair Campbell once said of Downing Street, "We don't do God." Nor should it try Utopia.

Instead, I fear something quite different. In its final form, the legislation comprises 309 clauses and 23 schedules. But as every facet of the NHS had been enshrined in law, every action that anybody disapproves of will be challengeable at law. If the consultants don't think their views are being taken seriously, or the health unions are complaining, or the poor patients feel neglected, then any or all of them will be able to go to the courts. There will always be an actionable case. The NHS will become a lawyers' paradise. Unlike Utopias, lawyers' paradises do exist.