Most NHS patients never think about who has legal responsibility for the health service. They notice waiting times, whether local services disappear and whether they can get treatment when they need it. But Wes Streeting’s new health bill changes who has the ultimate power to make those decisions, and may make the NHS far more vulnerable to future political swings across the UK.
A key aspect of Streeting’s bill is to abolish NHS England and bring NHS management “back into democratic control”, as announced by Keir Starmer in March 2025. Since 2013, NHS England has been responsible for the day-to-day running of the NHS, acting as a buffer between ministers and frontline care. Removing it amounts to a top-down reorganisation of the NHS in England.
NHS England was introduced in a previous controversial top-down reorganisation by the Conservative-led coalition government, which also generated fears that the Competition and Markets Authority would allow more private sector involvement in the NHS.
Even before NHS England’s launch, Andy Burnham, as health secretary in 2009, had referred to it as “the world’s biggest quango”, adding to fears that there would be limited political accountability.
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It is true that NHS England insulated some decisions from day-to-day politics. However, the figurehead status of the minister makes it hard to know who should be held responsible when things go wrong. The response to the COVID pandemic illustrates this: the policy of discharging untested patients into care homes was a government decision, but one driven by NHS England – leaving neither clearly accountable.
Some analysts have since presented the creation of NHS England as shifting blame away from politicians and reducing democracy because its existence put more power in the hands of unelected officials. Abolishing NHS England reverses that arrangement.
When things go wrong with the NHS in the future, responsibility could fall more squarely on the minister, who is elected and answerable to voters, rather than being shared with officials who are not. This is why Streeting’s bill is said to bring back democratic control.
What does control actually mean?
But how much control will the minister have? We can get a sense of how political accountability works by delving into the legal duty of the minister.
Since the NHS was introduced in 1948, the health minister’s legal duty is to “promote a comprehensive health service” that first and foremost improves “the physical and mental health of the people of England”.
Between 2013, when NHS England was introduced, and 2022, this duty was shared between NHS England and the health minister, who then had less overall power. Matt Hancock brought back more ministerial power alongside NHS England with the Health and Care Act 2022.
How courts have interpreted this legal duty provides lessons for the new NHS landscape in England.
For example, the English High Court has ruled that promoting “a comprehensive health service” is wide-ranging and could include some aspects of US-style private healthcare delivery.
In other legal cases, although UK Supreme Court judges disagreed about who “the people of England” are, lower courts in England have confirmed that asylum seekers and illegal immigrants with significant health needs were not included.
Lawyers describe such legal responsibility as a “target duty” – which broadly means that even if a minister appears to fall short, it is very difficult to take them to court and prove they have not performed their legal obligation.
Some see this as a weakness because it suggests that the law may not offer clear-cut answers to controversial questions. This means that the influence of politics is clear in sensitive topics such as private sector involvement in the NHS and immigration and residency checks for NHS patients.
It is not difficult to see how legal terms such as “the people of England” could be adopted by individual politicians in the current political climate to be even more divisive. The NHS is an obvious focus in elections generally, and especially for populist policies. Lessons are already available for the UK from the US experience of immigration enforcement on accessing healthcare.
Bringing in more power for the minister makes the NHS more susceptible to political interference from “individual political actors”. This is of concern to everyone – not only NHS staff and MPs – because the identity of the minister, and what they stand for, actually matters.
As the bill progresses through parliament, it is worth noting that Streeting’s own departure from the role means the NHS is now on its seventh health secretary since 2021 – an unusually rapid turnover that sits uncomfortably alongside any promise of stable “democratic control”. His replacement, James Murray MP, inherits a reform whose implications he had no hand in shaping.
