Health scrutiny and the forthcoming Bill

Posted on 19/03/2021 by Ed Hammond.

The health white paper was published a few weeks ago – you can read our full response, and position, here.

We do have concerns about the White Paper – in particular, what it means for health scrutiny. In setting these out, it’s worth bearing in mind that legislation never tells the whole story. There’s a wider landscape of change afoot in the NHS, and changes in statute are a small element. We can hope, and possibly expect, that the reality of this wider landscape will come to leaven our concerns slightly.

The White Paper is very much a document about the NHS as an institution. Although discussion of partnership is dominant – and has been a constant feature in high level discussions on the NHS since the advent of Sustainability and Transformation Plans – it seems to be partnership on the NHS’s own terms.

This is a form of partnership where those at local level are working together to determine local outcomes – but within a framework subject to tight and direct control by the Secretary of State. Certainly, the White Paper says very little about public participation or, indeed, about meaningful health and care integration. This is perhaps not much of a surprise given that Government has repeatedly delayed revealing its blueprint for social care reform.

While many elements of the White Paper were telegraphed in advance (placing ICSs on a statutory footing, for example) the accretion of powers in the hands of DHSC ministers certainly was not. A blunt reading of these provisions suggests that local accountability is being hollowed out.

Certainly, proposals for health scrutiny would seem to bear this out. The removal of the power held by councils to refer matters of concern on substantial health service reconfigurations to the Secretary of State (for the SoS, usually, to refer on to the Independent Reconfiguration Panel) is a cause of real concern – as is the abolition of the IRP itself. The referral power is infrequently used but it is a critical legal backstop, acting as an anchor for scrutiny’s wider work.

We can hope that when the Bill, and associated Regulations and guidance, are prepared, that a different story will emerge. We think that health scrutiny and increased national accountability have a common purpose – to ensure that decision-making in the NHS happens as robustly and transparently as possible. Proportionate health scrutiny can draw in critical local insight and provide the credibility that comes with leadership from elected local representatives. The Secretary of State could come to rely on this local insight as they decide where and how to use their extended power of intervention.

Conversations that we have had with those within the system give us some hope that this may be the case. Certainly, we have been assured that there remains to be a critical and strong role for scrutiny. This is not about the “abolition” of the function – and we think that designed well, a new system could afford a strong role for member-led oversight within the health and care system.

We can expect a Bill to arrive very soon (in legislative terms) – sometime in May. This means there is a limited amount of time to gather evidence on the practical work and benefits of health scrutiny – and in particular of the value of the referral power – before the detailed legislative provisions emerge. Scrutiny and governance professionals can of course seek to contact DHSC directly, but we are also seeking to draw together and co-ordinate the passing up of evidence and advice. To this end, we would like to invite scrutineers to tell us their stories of effective health scrutiny. Please get in touch at


About the Author: Ed Hammond

Ed leads CfGS's work on devolution, transformation and on support to councils and other public bodies on governance and accountability.