If it were a household, instead of Europe’s largest employer, the NHS would be living in poverty. It is hugely in debt and at considerable risk of ill-health. Reporting in 2002, Derek Wanless forecast that the gap between NHS income and expenditure would rise to £30 billion by 2022/23 if the public did not engage with its health. NHS England’s review in 2014 came to the same conclusion. You need no economic expertise to recognise that this position is not tenable.

A major problem is that 70% of the NHS budget is spent on treating people with long-term conditions that are often avoidable, such as asthma, diabetes and cardiovascular diseases. The sugar tax as outlined in the Spring budget is a welcome first move. But what if there was something far more fundamental? Something to ensure that health definitely becomes the new wealth? Something like a new UK Health and Wellbeing of Future Generations Act?

As an enabling piece of legislation, such an Act would put health and wellbeing at the heart of all policy decisions – including those of transport, housing, education, trade and environment. The Act could also introduce a new concept of protected characteristics to those living in areas of high deprivation with lower life expectancy – in the same way that equality laws now protect against discrimination.

This Act would be in line with the Future Generations (Wales) Act 2015 that establishes a duty on public bodies in Wales to consider the health of present and future populations. In arguing for the forthcoming Public Health (Wales) Bill, the case was made that such legislation can become “the instrument of social change.” It is no “do-gooder” desire to improve the health and wellbeing of the public. It is a matter of economics – equivalent to the principle of giving us fish to eat for a day against teaching us to fish to feed us for a lifetime. Sustainably.

Legislation maybe a long-term solution but it would enable a system change. It makes no sense to treat people for asthma, for instance, and return them to the poor air quality or damp housing that is making them sick. Social conditions were at the heart of the great 19 century public health legislation that mandated the supply of decent sanitation and water. Today’s issues focus on sustainability with an increasing recognition that human, animal and ecosystem health are all interconnected as “one health.” Sustainability would be at the heart of a UK Future Generations Act, enabling action to deliver the United Nation’s sustainable development goals to address inequality, ensure healthy lives and grow a prosperous economy that is protective of justice, people and the planet. Put the NHS in this context and it becomes symptomatic of the societal issues that need addressing.

It is easy to see legislation as impenetrable to anyone but a lawyer. But laws matter. They matter, not because legislation gives us what we want but because laws define rights, responsibilities and duties, giving them a value that is recognised by government and upheld impartially in court. This sense of justice is, after all, what defines a ‘just’ society. Those rights include the universal right to health, as set out in the UN declaration on human rights.

And then there is “Nanny Industry” – a term used to describe the dominance of large corporations in maintaining profits over the fear of government regulation. The extent of Nanny Industry’s power can be seen in the phenomenon of “regulatory chill.” The fear, or actual threat, of expensive trade disputes initiated by wealthy multinational companies is sufficient to inhibit governments from introducing new public health regulations in case these are construed as a barrier to trade. Far from imposing additional burdens on industry, a UK Future Generations Act would set out a constitution for achieving wellbeing so that both government and industry work from the same basis – a “job-share” for the post of Nanny if you like.

The UK will need to develop trade agreements post-Brexit that do not undermine the considerable protections currently afforded to the UK by EU directives, frameworks and professional collaborations. Such treaties must prevent the potential for trade disputes that would be costly not just financially but also to the health of the population. A UK Future Generations Act would help by setting out basic principles. For example, the “precautionary principle” could ensure minimal risks to the public’s health where scientific evidence is presently insufficient to make a decision. Such an Act would help to grow a healthy population and healthy people create economic health.

How likely is the introduction of this Act? The dire need to relieve pressure on the NHS is re-shaping a conversation about new public health legislation that began thirty years ago. The Future Generations (Wales) Act is indicative of a growing interest in the idea. Modernising the law to fit current circumstances would be a first step. The public health community recently submitted a proposal to the Law Commission’s to review current legislation of particular concern to Directors of Public Health in England. For example, improved planning legislation would help local authorities create healthier places in which to live and work. The proposal has passed the first stage and is being investigated further.

The NHS was born in an era of both financial austerity and new political agendas. This seems so redolent of current international and domestic politics that maybe the time is right for this Act. It may even be the catalyst that lifts the NHS out of poverty and shifts the focus to an economic emphasis on improving our health. The last word goes to the first female medical graduate, Elizabeth Blackwell: “We are not tinkers who merely patch and mend what is broken… we must be watchmen, guardians of the life and health of our generation, so that stronger and more able generations may come after.”

This blogpost is based on an entry to the King’s Fund “NHS If” essay competition in January 2017.