a. Health regulation

i. Foundation Trusts and Monitor

As indicated in the first edition of Coalition Watch, the Health White Paper (Equity and Excellence: Liberating the NHS) proposed a number of changes to the way the NHS is regulated. In particular, it will remove the two-tier system that exists for secondary care, so that all NHS trusts will become Foundation Trusts by 2013. Foundation Trusts will have greater independence from the Department of Health, and the role of Monitor (the independent regulator for Foundation Trusts) will therefore be extended to turn it into a fully fledged economic regulator.

ii. Food Standards Agency

The remit of the Food Standards Agency is to alter, with responsibility for nutrition policy in England transferring to the Department of Health, and the FSA's role relating to Country of Origin labelling and other non-safety related food labelling and composition policies passing to DEFRA. The FSA in England will continue to develop and enforce food safety policy.

iii. Personal health budgets

The previous government's pilot of personal health budgets has been extended by a Coalition injection of cash. Personal health budgets could see patients given cash to purchase the NHS care they choose. (See our previous alert).

b. Licensing

i. Licensing Act 2003 overhaul

The Home Office has announced its intention to consult on proposed measures to reduce underage and excessive drinking and the consequent costs to the taxpayer. The measures include new penalties for problem premises and give more powers to local communities to consider licensing issues. They also include the scrapping of alcohol disorder zones.

c. Police reform

The Home Office has published a new consultation 'Policing in the 21st Century: Reconnecting Police and the People'. The deadline for responses falls on 20 September 2010. The paper aims to make the police service in England and Wales more accountable to the public and responsive to local people, more focused at a national level and more effective at tackling crime, as well as providing better value for money. A number of the proposed changes will feature in the Police Reform and Social Responsibility Bill, which will be published in the autumn.

d. Miscellaneous

i. Pathfinder mutuals The Cabinet Office has introduced the first wave of 'Pathfinder' mutuals - public service spin-offs run by entrepreneurial frontline public sector staff. 12 businesses have been established in a range of fields, including education, social care and housing services, to develop innovative ways to provide public services. The Pathfinders will be supported by expert mentors from some of the country's most successful businesses and leaders in employee ownership models.

Our comment

The influence of the Coalition's 'Big Society' programme (to better empower communities to bring about change from the bottom up) is beginning to pervade the approach to the reorganisation of regulation. However, the introduction of greater freedoms (such as those given to Foundation Trusts) will often necessitate the introduction of further regulation (such as the extension of the powers of Monitor) to ensure that the new powers are not abused. Such are the paradoxes of deregulation.

By removing an element of central oversight, the success of grass-root initiatives (like certain strands of the licensing and police reform programmes which extend the role of communities in decision-making) will rely on the commitment and participation of the people on the ground. This could lead to an accentuation of the divide between areas that are well-placed to take advantage from the opportunities such freedoms offer and those areas that do not. But is this the basis for a 'postcode lottery', or merely the quite proper result of localism in action?

As we noted in our introduction to this edition of Coalition Watch, the Government's overarching policy on health sector reform is already the subject of legal challenge. Unison (the public service trade union) has commenced a judicial review of the Department of Health's White Paper, stating that the public should have been adequately consulted as to whether it wanted such radical changes, and arguing that the changes are already in the process of implementation so that the consultation is not genuine.

As highlighted in the first edition of Coalition Watch, the Department of Health currently has five open consultations concerned with the implementation of the policies in the White Paper. The judicial review is therefore likely to focus minds again on the extent to which consultation and engagement with the public is required before a democratically elected government introduces legislation into Parliament.

The 2007 judgment of the High Court in Greenpeace v. Secretary of State for Trade and Industry made it clear that where a government makes a public promise to consult then the public have a legitimate expectation that the government will act in accordance with its promise. But this is not the same as saying that a government must consult before issuing a White Paper where it has made no promise to do so.

Nonetheless, if the Coalition chooses to consult, it must certainly do so properly in accordance with public law requirements. But it is difficult to see that, with legislation to be introduced into Parliament in the autumn, any challenge to current consultations could ultimately make a difference - in the long run, the only public scrutiny that will really matter is that provided by the public's elected representatives through the legislative process.