1st December 2021
The current government makes much of its manifesto promise that it will build ‘forty new hospitals’.
But at prime minister’s questions today, the opposition leader referred to the following guidance for public officials (or ‘playbook’ as it is formally described):
Those 40 new hospitals. Labour now circulating a leaked NHS document which says a ‘major refurbishment & alteration of all but the building frame or main structure’ pic.twitter.com/iwO2n5B4yB
— Beth Rigby (@BethRigby) December 1, 2021
So a ‘new hospital’ includes an additional new clinical building where there is an existing hospital.
And even the refurbishment (or upgrade) of an existing hospital, as long as it looks different from the outside.
Both of these are jolly good things to be welcomed, but no sensible person would call them ‘new hospitals’.
Yet the government is requiring public officials to say this untruth.
*
What if a business did this to consumers?
The Consumer Rights Act says things have to be as described.
Regulation 5 of the consumer regulations provides that an unfair commercial practice includes when a practice ‘in its overall presentation in any way deceives or is likely to deceive the average consumer in relation to…the quantity of the product’.
That reference to ‘overall presentation’ means that something hiding in the small print is not good enough as a legal escape.
If a business made such claims to a consumer then the law would regard this as ‘a misleading commercial practice’ and in breach of consumer protection rights.
Even without consumer law, claims that a major thing would be ‘new’ when it would either be merely an addition or a refurbishment would be likely – under general contract principles – to be either a misrepresentation that would mean the contract would be put aside or a material breach of a contract.
Indeed, some would go further and say such knowingly misleading statements in would even constitute fraud.
*
The reason why these false claims are to be made so that it will appear that the governing party has met its own political manifesto commitment – and note how the manifesto itself distinguishes between upgrades and new hospitals:
‘Everyone in the UK should have the peace of mind and confidence that come from world-class health care – and so this new One Nation Conservative Government is giving the NHS its biggest ever cash boost, with 20 hospital upgrades and 40 new hospitals […]’
‘[…] have begun work on building 40 new hospitals across the country , as well as investing in hospital upgrades […]’
‘We will build and fund 40 new hospitals over the next 10 years. This is on top of the 20 hospital upgrades announced in the summer […]’.
Three times the promise is explicitly made in the manifesto.
*
Of course, law is not politics, and political language is not to be held to legal(istic) standards.
But.
It is rare to have official guidance – even if called a ‘playbook’ – which sets out how public officials are to describe something falsely as a new hospital when it is not a new hospital.
Not only are ministers lying to us, but ministers are now requiring public officials to lie too.
******
This daily law and policy blog needs your help to continue – for the benefit of you and other readers.
Each free-to-read post takes time and opportunity cost.
This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters.
If you value this free-to-read and independent legal and policy commentary – both for the you and for the benefit of others – please do support through the Paypal box above, or become a Patreon subscriber.
*****
You can also have each post sent by email by filling in the subscription box above (on an internet browser) or on a pulldown list (on mobile).
******
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated.
Comments will not be published if irksome.
Great news! This new government definition of a new building presumably means that we are now entitled to extend and/or refurbish our homes free of VAT.
Thank you for doing what you are doing. I enjoy reading your blogs. I was a civil servant for 13 years, in the communications. I find that how this government is behaving, and communicating, to be appalling. There is a new head of the Government’scommunications service – Simon Baugh – it would be great if you could engage him in this debate about the government asking civil servants to lie.
https://www.linkedin.com/in/simon-baugh-8108b214/?originalSubdomain=uk
The Civil Service Code is quite explicit (https://www.gov.uk/government/publications/civil-service-code/the-civil-service-code)
“As a civil servant, you are appointed on merit on the basis of fair and open competition and are expected to carry out your role with dedication and a commitment to the Civil Service and its core values: integrity, honesty, objectivity and impartiality. In this code:
‘integrity’ is putting the obligations of public service above your own personal interests
‘honesty’ is being truthful and open
‘objectivity’ is basing your advice and decisions on rigorous analysis of the evidence
‘impartiality’ is acting solely according to the merits of the case and serving equally well governments of different political persuasions
These core values support good government and ensure the achievement of the highest possible standards in all that the Civil Service does. This in turn helps the Civil Service to gain and retain the respect of ministers, Parliament, the public and its customers.”
“truthful and open” are core values of the civil service.
We’ve seen the same today with the PM’s spokesperson getting tangled up in knots on a non-party that just happened to be before Christmas.
Truthful doesn’t just mean half-truths. Openness, if it means anything, means having to hang the dirty washing out in public, if asked. Not nice, but then again, maybe you shouldn’t have got the washing dirty in the first place.
Values are meant to mean something.
But what value on the values?
I’m a bit disappointed by what is omitted from these values: competence. It is hinted at by the “appointed on merit”, but I would hope that the merit would persist and competence would improve further with experience. Maybe whoever drew up the code thought it went without saying and didn’t want an unfavourable contrast with well-meaning fools in government.
Isn’t it time the whole question of truthfulness and honesty is addressed in politics particularly when it overlaps with advertising standards?
https://www.asa.org.uk/news/why-we-don-t-regulate-political-ads.html
I fear that what you see here is the UK version of the Bannon/Trump communications method. AKA, ‘ Just Lie and persist in the lie until most people believe it is truth, then accuse the opposition of lying when they challenge it. ‘ This is a remarkably powerful game but can surely end only with permanent lies or a very nasty reckoning. Remember, lies don’t have to fit the facts, so can be more readily designed to suit the lier’s purpose.
It’s BAD ENOUGH when our Prime Minister and / or Ministers lie to us and to the world.
Somehow it’s a different order of magnitude, though, when the government departments’ official spokespersons lie.
Possibly because we may one day be able to get the government out but can’t sack the departmental spokespersons? And that means we can never trust anything the government says EVER …
Does an existing hospital that gains one of these ‘new’ hospitals thereafter count as two hospitals? If so it should probably qualify for more staff and funds.
Can any of us readers say who it is in govt who is demanding that officials repeat these untruths?
Suffering a twerp like Boris is bad enough, but the word for several weeks now is that he is the symptom, not the disease. If there is some cabal in govt with a lying, duplicitous carapace which, one suspects is to let them get on with some zealous tinkering of how the UK is going to work, (or not work), then the cabal or whatever it is needs outed pdq.
“What if a business did this to consumers?” Or, indeed, shareholders ?Whilst neither a lawyer nor a banker, I suspect the ‘updated’ definition of a “new hospital” would be in breach (at best) of LSE disclosure regulations.
In contract law, the remedy for misrepresentation is recission. The contract is not merely “put aside” but the parties are to be returned to the position that they were in before the contract was entered into. So… if the govt. was a business, we should be returned to where we were before the election (and brexit and all the covid contracts and, and and…).
The trouble is, I didn’t much like it then, either.
The “playbook” isn’t there just to protect the manifesto promise. When the promise was made the 40 “new” hospitals announced were counted using the same deception. Most of the new hospitals listed were not new at all, but that was only in the small print. So the claim was exposed as false at the time. Despite repeated challenges Johnson has not stopped claiming it and, rather like the £350m on the bus, if you tell a lie often enough people will believe you. It’s only the recent leaking of the playbook instructions that has made it more of a problem.
It isn’t just a broken promise. It was always a lie. Quelle surprise.
Indeed, it was always a lie. As demonstrated by the government not yet allocating or providing for the £20 billion or so that would be required to construct 40 hospitals from scratch.
Just as 50,000 “new” nurses meant recruiting 30,000 people to nursing who had not done it before, and reducing attrition by encouraging another 20,000 existing nurses not to leave. Someone who decides to stay (rather than go) is by no sensible measure a “new” employee.
Johnson has always been an effortless liar, if a lie suited him more than the truth, with no compunction or conscience. He has been sacked for his lies several times when caught out by people with a minimum level of integrity, honour or moral fibre.
Apropos, https://www.bbc.co.uk/news/59372348
If you count a “new hospital” as a new build on a new site, there are planned to be two new general hospitals, and one new non-urgent care hospital. The remainder are new wings, or rebuilds. That said, replacing an “old hospital” with a “new hospital” might be a good thing, but there certainly won’t be “40 more hospitals”.
But then both of the “new” general hospitals were already under construction well before 2018. Indeed, the Midland Metropolitan University Hospital should have opened in 2018, and the Royal Liverpool University Hospital in 2017, but both both were delayed by the collapse of Carillion.
Taking them away, I understand there are no plans for a new general hospital on a new site. So the Johnson government will start building … no new hospitals at all?
That at least goes to explain why the budget is so small.
Even then, the Infrastructure and Projects Authority has downgraded its ranking of the building project from “amber/red” (“in doubt with major risks or issues apparent in a number of key areas”) to “red” (“appears to be unachievable and there are major issues … do not appear to be manageable or resolvable”).
Dangleway, Estuary Airport, Garden Bridge, Irish Sea Bridge… is there a pattern emerging?
Most entertaining, thank you.
Perhaps the Civil Servants could take a leaf out of the lawyer’s book – ‘my Minister tells me he was not doing 100mph on the B249’. Similarly, ‘my Minister tells me he will build 50 hospitals by next Tuesday’.
We all know it is total tosh and only the Minister is lying. ‘My Minister has done nothing wrong’ – as if.
Maybe there is a hint here. The fusty old Civil Service took the role of a defined constitution. We might discover that ‘Sir Humphrey’ was not such a bad chap after all.
Be careful what you wish for. If politicians were forced to tell the truth about new hospitals that might result in inefficient splitting of hospitals so that the new wing was genuinely a new hospital even though it would be much better to make it an extension of an existing one.