Health and Social Care Bill

Baroness Williams of Crosby Excerpts

Tuesday 6th March 2012 Lords Chamber

[Lord Warner]

I speak to Amendment 164 in my name, which is in this group. It returns to the issue I raised in Committee: the need for Monitor to produce an early report on the barriers to entry for new providers of services to the NHS. Although he had sympathy with what I was trying to do, the Minister did not like my previous amendment, which would have required Monitor to produce a report within 12 months of Royal Assent on barriers to NHS entry to new providers. I think that he accepts that there are barriers to entry for new providers which we need to tackle. In this amendment, I have added the words “identifying and” to the requirement in Clause 61(3) for Monitor to prevent anti-competitive behaviour.

I recognise that many people in this House and in the Commons do not share my view on the virtues of competition when used selectively for patient benefit. I will not go over all the ground again, but I think there is good evidence—the noble Earl cited some of it in an earlier discussion—that that has proved beneficial to patients. Moreover, the UK is almost unique in large advanced healthcare systems in enshrining monopoly public providers of hospital services, with little challenge to their efficiency or effectiveness. These NHS monopolies have been very good at erecting barriers to entry for newcomers and ensuring—if I may put it as unkindly as this—a quiet life for monopoly incumbents.

We should be concerned about this. Only last week there were some startling statistics in the Health Service Journal about non-foundation trusts’ poor performance in achieving savings requirements in line with the Government’s targets. I have no problems with the Government setting those targets for non-foundation trusts to improve their efficiency. None the less, however we frame the competition provisions in this legislation, we have to face the fact that it is extremely difficult for new entrants to dislodge incumbents in many of these services where the performance is poor. That is why in my view Monitor should, after the Bill receives Royal Assent, quickly identify clearly existing barriers to entry so that they can be dismantled in the public interest. The Co-operation and Competition Panel has already identified some of the barriers for new entrants to the NHS market—and, again, I make no apology for talking about an NHS market. It is important that we see healthcare, in part, as a market where new providers can provide better services and different types of services more effectively.

I hope that the Government will look sympathetically at this modest amendment to try to get Monitor on the case of identifying barriers to entry.

[Baroness Williams of Crosby]

My Lords, I have two amendments in this group, Amendments 163C and 166B, which also stand in the name of my noble friend Lord Marks. However, before I address those relatively short amendments, I should like to say a word or two about the broader issues that we have been discussing. I begin by perhaps giving a little comfort to the noble Baroness, Lady Thornton, by saying that my understanding is that we will be discussing the whole issue of the relationship of Monitor to foundation trusts later in the proceedings. Our amendment on this matter, which is not far removed from hers, addresses an amendment to the government amendment on this issue, which itself comprises a considerable advance in the position that we have had up till now. I shall not try to get into that debate because it is complicated and I think that it would be better conducted a little later in the light of the various proposals.

I want to say a word about competition, and it is appropriate to do so given that the noble Lord, Lord Warner, has just been speaking. He has always spoken with some courage on this issue, which I recognise is not exactly popular with his party. However, I say quite directly that I feel very strongly that we have allowed the issue of competition to become quite different from the reality that we have encountered in the Bill, in this House and from the argument that is going on outside. That is because we have tried to treat competition as an absolute—either we have a competitive market for the National Health Service or we have no competition at all—and we all know that to be false.

We all know that there is a role for competition but the argument is about how limited it should be, what it should be addressed to and whether it is then balanced by, for example, equally strong duties in relation to co-operation, integration and the bringing together of services. I think we all recognise that competition can make a significant contribution in innovation and bringing in new ideas. For example, we have only to look at the recent developments in the treatment of stroke victims and victims of heart conditions to see that there has often been an innovatory role for the private sector. However, many of us also believe, as I certainly do, that the National Health Service should continue to be primarily a public service, that it should be available free of charge and that it should be accessible to all. Therefore, competition must exist but essentially it must be balanced by other considerations which, in the case of what we have been discussing recently, are clearly of great significance—particularly the role of the integration of services and the role of co-operation, which in terms of our main priorities, including the care of the elderly, are absolutely central and crucial.

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[Baroness Thornton]

In response to that last remark, it depends on whether Monitor decides it is collusion or collaboration. That is the key point. We suggested that that was a problem right at the very beginning of the Bill—how you distinguish between collaboration and collusion and what you do about that. I do not think we are any closer to finding the answer.

I turn to remarks that were made during the course of this very useful if diverse debate. I want to take one moment to say something to the noble Baroness, Lady Williams, and her colleagues and to the noble Baroness, Lady Murphy, about the fact that they feel misrepresented in social and other media. Indeed, as politicians it goes with the territory that you may be misrepresented from time to time. I have the greatest respect and admiration for the noble Baroness, Lady Williams, and she knows herself that that is where you are when you are in politics.

However, the noble Baroness herself wrote in an article in the Guardian on 13 February about dropping the chapter on competition, and in a letter that the noble Baroness and her leader wrote to their own MPs and Peers, they set a high bar for how Part 3 of the Bill might be made safe. It is just and proper that everybody will be looking at the noble Baroness and her friends to see and test whether they have succeeded and met their own aspirations. At the moment, I think that that is open to question. I do not think that it has been achieved. I know that that might be painful, but that is the case.

We have had some thoughtful amendments and contributions. As usual, the noble Baroness, Lady Finlay, in her amendment and questions put her finger on a very important issue that the Bill needs to address even at this late stage. I had a great deal of sympathy with the amendment of the noble Baroness, Lady Cumberlege. I rather hoped that she would get a more positive response than she did and I am sorry about that.

[Baroness Williams of Crosby]

The noble Baroness is perfectly entitled to say what she had said. I accept that fully and I am sure that she said it in all sincerity. But the difference between us is that I believe that the Government have moved a long way, particularly because of the Minister. I believe that that culmination of changes will enable us to bring about an improved NHS. I may be proved wrong. I freely accept that I may be proved wrong. But I believe that the changes that have been made are so far reaching that we can make the NHS better than it is today. I know that the noble Baroness, who herself has been responsible in her attitude towards the Bill, would wish to see that, even though she may not think that this is the way to do it.

[Baroness Thornton]

I am not sure whether this is the way to do it. We disagree. I do not think that the Liberal Democrats have achieved it, but there we are. As the noble Baroness said, history will see who is right and who is wrong.

I am extremely pleased to see that the noble Baroness, Lady Meacher, has transferred her attention from the Welfare Reform Bill to this one. She is quite correct that it is impossible to stop the negative impact that has been observed in the studies that she referred to. She is completely right about that. This whole debate illustrates the problem: half of the Bill seems to be there to mitigate the damage that the other half does. What used to be, for example, a clear duty to co-operate—and it was a simple duty—is now dense and complex.

Turning to our Amendment 163B, I should like to say to the noble Baroness, Lady Murphy, that it does not rule out the economic regulator function. That amendment does not seek to do that, so I hope that the noble Baroness, with that reassurance, might support our amendment. We seek to clarify and put beyond doubt that Monitor should have that function. We seek to do it in the first part of the Bill. We want Monitor to keep its current role. We believe that there should be two bodies and that it is difficult for Monitor to do both jobs at once, but it is important at this point of this first part of the Bill that we make it completely clear. Where the Bill says that Monitor should be the,

“Independent Regulator of NHS Foundation Trusts”,

we need to make it completely clear that it will continue to do that job.

We are not trying to weaken the role of Monitor. We think that foundation trusts are facing huge risks and huge reorganisation. They need the support that Monitor will offer them. I suspect that the Francis report, as I said earlier, will indeed have something to say about the strength and importance of Monitor as a regulator of foundation trusts. We would like this to be in the Bill because it makes it completely clear that this is an important job that Monitor does and that it should keep doing that job for the foreseeable future. I wish to test the opinion of the House.

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Moved by

[Baroness Williams of Crosby]

166B:After Clause 61, insert the following new Clause—
“Secretary of State’s guidance on duty under section 61(9)
(1) The Secretary of State may, for the purpose of assisting Monitor to comply with its duty under section 61(9), publish guidance on—
(a) the objectives specified in the mandate published under section 13A of the National Health Service Act 2006 which the Secretary of State considers to be relevant to Monitor’s exercise of its functions, and(b) the Secretary of State’s reasons for considering those objectives to be relevant to Monitor’s exercise of its functions.(2) In exercising its functions, Monitor must have regard to guidance under subsection (1).
(3) Where the Secretary of State publishes guidance under subsection (1), the Secretary of State must lay a copy of the published guidance before Parliament.
(4) The Secretary of State—
(a) may revise guidance under subsection (1), and(b) if the Secretary of State does so, must publish the guidance as revised and lay it before Parliament.”

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[Lord Warner]

My Lords, I shall speak also to Amendment 214G which stands in my name. The amendments arise from our debate in Committee about what we then described as a “pre-failure regime”. The argument that I was trying to sustain, with helpful support from different parts of the Committee, was that it would be better for Monitor to get engaged when it could see failure coming at it down the track rather than waiting for the train crash to occur and use the health special administration procedures that were provided for in the Bill.

My amendment then was probably technically defective but it served the purpose of raising the issue. The Minister was not so off-putting that I thought that I would not have another go at this, so, with the help of the noble Lord, Lord Patel, and the noble Baroness, Lady Williams of Crosby, I put down Amendment 217, which is in this group. Following that, the Minister engaged with me in some rather helpful and fruitful discussions and the results of those discussions were Amendments 196ZA and 214G. In my enthusiasm for tabling these amendments I completely forgot to remove Amendment 217, which is why it is still on the Marshalled List. I assure the Minister that I have no intention whatever of moving Amendment 217.

The nub of what is in Amendment 196ZA is that it provides for Monitor when it can see that a licence holder’s conditions are likely to be imperilled by a current configuration of health services in the wider health economy—not just within that licence holder’s own individual trust. It can draw the attention of commissioners—the national Commissioning Board and clinical commissioning groups—to those risks which it can foresee and it has to give its reasons for doing so. But rightly in my view and, I believe, that of the Government, it puts the onus on the commissioners to do something about it. It does not require a top-down intervention, but it flags up very seriously to the commissioners that a problem is looming and they need to do something about it. Just to give more force to that, each financial year Monitor will publish a list of the notifications that it has issued in that financial year, putting commissioners on notice that they have a problem, that they need to do something about the reconfiguration of services and that they need to take some action to ensure that there are sustainable NHS services in that part of the country.

I pay tribute to the civil servants at the Department of Health because they have done something rather ingenious that I never even thought of in Amendment 214G, which is to take an application by a service provider to Monitor to secure some adjustment in the price paid for particular services to make Monitor think about whether there is anything more significant behind that application and whether there is a risk to the sustainability of services in a particular area. If it does consider that that is necessary, it can again notify the commissioners of its concerns about the need to consider service reconfiguration in that area.

These two amendments, which have been given a lot of technical help by the Department of Health and a lot of support from the Minister, meet my concerns and, having talked briefly to the noble Baroness, Lady Williams of Crosby, I believe that they also meet hers. There is an adequate set of arrangements to put commissioners on notice that failure may be looming so that they can take action under their responsibilities. Just to make sure that they do, each year there will be a list of the notifications that Monitor has issued so that it is on the public record that Monitor has spotted that there is something of concern and has required commissioners to take action.

That meets my concerns and I think that it meets the concerns of the noble Baroness, Lady Williams of Crosby and the noble Lord, Lord Patel. In order to table the amendment in time for today’s debate, I did not have time to collect the signatures of my partners in crime on Amendment 217, but I have every reason to believe that they would be satisfied with the Government’s response to our concerns.

With regard to subsection (5) of Amendment 217, which I have mentioned to the Minister, I think it would be a good idea if the Government were to consider assembling a group with expertise to help local people to reconfigure their services. It is often difficult for people at the local level to think through how they might reconfigure services to make them sustainable. I do not suggest a top-down approach but some sort of panel that could help local people and facilitate the reshaping and redesign of services. That would be a helpful way of proceeding. It might help a lot of people to get through the difficult task of reshaping services when the need arises. Without further ado, I beg to move.

[Baroness Williams of Crosby]

My Lords, my intervention will be extremely short. I am delighted that the noble Lords, Lord Warner and Lord Patel, put down this proposal for what one might describe as precautionary failure. We were very concerned that there might be no regime that would enable services to continue because one had seen in advance the possibility of a particular place getting into a great deal of trouble. This is a very satisfactory proposal to put before the Government to deal with the continuation of health services for an area, even when those services get into difficulties.

I also strongly commend the proposal of the noble Lord, Lord Warner, about the small group of local people. That has one great advantage: that small group will then become part of what one might describe as a lobby for a sensible outcome, for a proper reconfiguration or change in the structure of services. That is very important. Otherwise, you almost invariably get very powerful local opposition to any substantial change and no natural constituency of people who support it. This is an imaginative idea. I am pleased to be associated with the amendment of the noble Lords, Lord Warner and Lord Patel.

[Lord Patel]

My Lords, I support the amendment. The noble Lord, Lord Warner, and the noble Baroness, Lady Williams of Crosby, have said all that needs to be said. I had my name to Amendment 217. To relieve the anxiety—if they had any—of the noble Lord, Lord Warner, and the Minister, I will not move that amendment either. I strongly support Amendment 196ZA.