European Union (Withdrawal Agreement) Bill

Debate between Lord Davies of Stamford and Lord Warner

Committee: 2nd sitting (Hansard continued) & Committee stage & Committee: 2nd sitting (Hansard continued): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Warner]

My Lords, I support this amendment, to which I have given my name, which has been moved so clearly by the noble Baroness, Lady Brinton. I do so as a former Life Sciences and Pharmaceuticals Minister who has stayed in touch with this sector since my time as a Minister.

The UK life sciences ecosystem has thrived, with an EU pharmaceuticals regulator based in this country and a strong medicines research base working closely with other European researchers. Over the years a strong pan-European research collaboration has grown up, which has benefited UK jobs and NHS patients. Every month, 45 million packs of medicines move from the UK to the EU and 37 million packs come the other way. The pharmaceuticals sector invests more in R&D than any other—20% of all UK business R&D. This is an industry with an annual turnover of £60 billion and exports of £30 billion. It employs 63,000 people, of whom 24,000 are working in high-paid jobs in R&D.

I say this because all of this is now at risk of lasting damage, particularly if there is not enough time to agree a well thought out deal during the transition period. There is now the prospect of a very clunky regulatory system, with companies having to deal with two regulators—the EMEA and the MHRA—if they want market authorisations in both the EU and the UK. The Government are saying that they want the UK market authorisations to be obtained first, but the EU is the bigger market and some companies think that they may end up with shorter IP protection in the larger market if they do what the Government ask. A dual regulatory system is likely to mean higher costs, driving up NHS prices and damaging patient access to new drugs. It will mean fewer joint research projects benefiting from EU funds, and UK-based companies are less likely to find the UK Government replacing the lost R&D funds from the EU. Over time, we may well see fewer clinical trials being done in the UK.

That is why this amendment is important. It offers the possibility of repairing some of the damage done by Brexit to UK life sciences and UK-based pharmaceuticals and biotech companies. We need to do our utmost to restore some basis for extensive collaboration and research work between us and the EU in the life sciences, and we need to do the best we can to make the regulatory processes as smooth as possible if we want people to continue to do pharmaceuticals research in this country. The Government have been slow to appreciate the damage they have been doing over the last three years to this British success story. Passing this amendment would start to repair some of the damage.

[Lord Davies of Stamford]

My Lords, my two colleagues have made a powerful case for the European Medicines Agency. They are perfectly right. The consequences of getting rid of it—of leaving the EU structure—are very serious. There are two parties involved in any introduction of a new ethical compound to the market. One is a pharmaceutical major—and by “major” I mean household names that the House will be familiar with: Pfizer, Merck, Eli Lilly, AstraZeneca, Glaxo, Boehringer, Bayer, Sanofi, Roche—I have left out two or three and a couple of Japanese ones, but you can count them on the fingers of three hands or so. The second is a regulatory agency that provides registration, which is of course the key to licensing, prescribing and selling freely a drug in the jurisdiction concerned.

Health and Social Care Bill

Debate between Lord Davies of Stamford and Lord Warner

Tuesday 13th December 2011 Lords Chamber

[Lord Davies of Stamford]

My Lords, I shall speak to—I had better read this out; I cannot possibly remember it—Amendment 294AZB in my name. This is a probing amendment, intended to smoke out the Government’s real feelings about price competition in the health service market. There have been some conflicting signals on this, as we all know, with the general expectation that the Government intended to introduce a greater measure of price competition, and then a spectacular U-turn earlier this year, which the Government said was not a U-turn because they never intended to introduce price competition anyway. A whole lot of clauses were introduced into the Bill that had the effect of banning price competition in the NHS.

I was assured by the Minister only yesterday that the Government’s true thinking on this is best set out in the document Protecting and Promoting Patients’ Interests, and I am grateful to his officials for giving me a copy. I shall quote what it says on this subject in paragraph 35 under the heading “No price competition”, which sounds very decisive:

“We have strengthened the Bill to ensure that where a national or local tariff is in place, providers and commissioners cannot undercut this”.

That seems to be straightforward, coherent and, as I shall argue, completely wrong. Paragraph 36 says:

“Where competitive tendering is undertaken for services not covered by the tariff, bids would be evaluated in terms of best value (i.e. awarding contracts to those bidders who provide the best balance of quality and cost”.

That seems to be incoherent and complete rubbish. Once you introduce the idea of a balance of quality and cost, you are into price competition. Every time you buy a car, you compare the quality and price of the cars on the market and come to a balance between quality and cost. Every time you go for a coffee and you choose between Costa and—what is the other one?—Starbucks, you are striking a balance between quality and cost. That is clearly incoherent and the result of very sloppy thinking.

Let us assume that that is just bad exposition or bad thinking on the part of the Government, and their real conviction is represented by the first quotation—they do not believe in price competition at all. Why is that a mistake? For two reasons: first, it involves a considerable potential loss of money from public funds. Surely if you can save money with no detriment to the purposes of the health service or the interests of patients, it should be the obligation of the Government to do that.

The second reason is a little more complicated: if you deny price competition a role in the system at all, you are denying the use of the mechanism for price determination. Competition is the only way in which you can really make sure that you understand how prices are put together. If you have a tariff that does not involve any price competition, you are basically into a form of cost-plus price determination, and anyone who knows anything about this—I know a little, having been Minister for Defence Procurement; sometimes we have to use cost-based pricing because there is no competition in the product that we need to acquire—knows that if you produce prices on that basis, you find that you can never exert any downward pressure on the prices that your suppliers are quoting to you. They will put in whatever they think is necessary for that activity and whatever costs they think they ought to put in. They will use the technique that they traditionally prefer to use for producing the goods or services that you are buying. You will never be able to second-guess that or look beyond it. It is an extraordinarily wasteful system of procurement and it is completely wrong.

We should have a commonsensical agreement that we should use price competition wherever we can where it does not do damage to other desirable objectives, particularly the objective of patient outcomes. I have endeavoured to produce an amendment—it is a purely probing amendment; I am sure that it is technically deficient, and I do not intend to take it any further in its present form—that establishes one way of doing that. It says that when commissioners wish to use price competition and they find that they get an offer of a price that is more favourable than the tariff price, they should be allowed to take it, subject to checking with Monitor to ensure that there is no damage to other purposes of the health service, to the interests of patients or to the structure and capacity of the health service. In health, there are often good reasons why you might not want to take the nearest offer, and I shall come to a couple of those in a moment, but, where there are no such reasons, surely the onus should be that you should take that offer and save the public money.

There are reasons why in health it may not always be sensible or in the interests of the health service or of patients to take the lowest offer, and I entirely accept that that may often arise. One is in the case where you are making a strategic investment in a new capability. We have had examples that have struck me in the course of these debates—for example, the new stroke systems in London and cardiac systems that cover London. I do not come from London but I believe that they have been a great success. That has consisted of ensuring that a quasi-monopoly has been given to perhaps half a dozen units that contain the best expertise and the best equipment that can be brought together for these purposes. That has been found to be the best solution for maximising patient outcomes or, to put it rather more straightforwardly, actually saving people’s lives, which is clearly the priority. I totally accept that there may be decisions of that kind that need to be taken irrespective of cost. Indeed, I welcome that they should be taken irrespective of cost and I have provided in this amendment a mechanism for making clear that when that happens and there are arguments of that kind they can prevail and it can be quite clear and quite transparent why the decision has been taken.

The second reason is also rather specific to healthcare, although not exclusively so. One of the features of the economics of healthcare is that it has a very high operational gearing; in other words, a very high ratio of fixed costs to total costs. In any sector of the market where that prevails there is obviously a great temptation for people to bid opportunistically when they have spare capacity at a price that represents a return over their variable costs and some contribution to fixed costs though not necessarily a very great one. You may get some very cheap offers coming in from people who happen to have spare capacity at a particular moment. It may be dangerous to take those offers rather than ones from other suppliers, such as traditional NHS suppliers which are more expensive, because if you do that you will put those NHS suppliers out of business. By definition, if people are bidding at a price below their full costs but over their variable costs then they will not always be providing it on that basis. They will certainly not be investing in new capability or sustaining capability on that basis. One has to be very careful about predatory pricing in the health service. I totally recognise that, and it would be a very good reason for saying, “We do not want to take this particular offer because if we do we shall put out of business capacity we need over the long term that can only be sustained long term at a higher price”.

I am very open and sensitive to the reasons for not taking the lowest price in many individual cases, but it seems to me that the Government have got this thing completely the wrong way round. The default option should be to take the cheapest price. We should be saving money. We should be exerting downward pressure on cost. We should be encouraging people to come up with new, cheaper and more efficient ways of doing things consistent with the quality that we require. It goes without saying that quality should be absolute and should be determined for every diagnostic related group, every service and health service procedure. For each of these we should have a clearly defined specification of quality and we should not go below that for reasons of price. Where we can get that quality cheaper and we do not do structural damage to the service it seems to me completely crazy not to go in that direction. I am sorry that the Government carried out the U-turn in February and I hope they may now turn back again.

[Lord Warner]

My Lords, I have some sympathy with some of the remarks made by my noble friend Lord Davies of Stamford in the sense that a blanket ban on price competition seems rather misguided in the situation the NHS faces. To give one example, under the last Government the price we paid for spot purchasing from the private sector when there were peaks of demand in the NHS was often much cheaper than had previously been the case and could, on occasion, be below a tariff price for some of the services. That was in the interests of the NHS and patients. A blanket ban does not seem to me to be the most sensible way forward.

I want to speak to Amendment 291C which should have been in this group. Assiduous readers of the groupings list will see that there are two commas after Amendment 291B. Between those two commas should have been Amendment 291C and the Whips’ Office has confirmed to me that was indeed the intention, so I wish to speak to the missing amendment and I also wish to speak to Amendments 294AA and 294BA which were included in the list.

Amendment 291C adds to Clause 141 some principles that should be applied to the construction of the national tariff. We have already had one debate about the tariff and how the national Commissioning Board might be encouraged to move the tariff away from its dependence on pricing episodes of care, which tend to favour acute hospitals, to a greater emphasis on periods of care that are more appropriate to the high volume of NHS patients with long-term conditions. I withdrew my earlier amendments on this issue but discussed the issue much further with outside interests and experts to see whether there was anything we could usefully do to further this particular cause. I think the Minister was not unsympathetic to some of the ideas in the earlier amendment.

These discussions have persuaded me that there is widespread support for trying to move the tariff currencies and pricing in the direction of periods of care but also a belief that this will take quite a long time and it involves a good deal of new data collection and analysis. In the mean time, people seemed to be saying that there was some merit in being clear about what should be the underpinning key principles for developing the national tariff in the future. I have had a shot at encapsulating these key principles—drawing very much on work by the NHS Confederation and I am extremely grateful for the help and advice it gave me—so that principles of this kind could be placed in the Bill to guide those who will be taking forward the difficult but important work of shaping the national tariff. I hope the Minister will be able to agree that we should try to have some guiding principles on the tariff in the Bill even if he does not like my particular wording because this is an important issue. We need to use this legislation to try to shape an important piece of work that will stretch over quite a few years to develop a new national tariff.

Amendments 294AA and 294BAA are technical amendments that reflect concerns expressed to my noble friend Lord Darzi and me by representatives of specialist medical interests about the current wording in Clause 116 on consultation on proposals for the national tariff and Clause 128 on the responses to those consultations. Amendment 294AA is intended to ensure that the relevant specialist groups are consulted on proposals for the tariff. It does not seek to specify the particular groups—that would be left to Monitor in the light of what the particular proposals were, affecting particular specialties. The amendment simply seeks to require that specialist clinical groups are consulted when tariff proposals are made so that they are involved and can bring to bear their expertise on the tariff-setting processes that can be involved with particular quite highly specialised sets of services. Amendment 294BAA merely seeks to ensure that when there are objections to a tariff proposal, assessing the weight of opinion for or against should be restricted to specialist licence holders undertaking work of comparable complexity. This is really to ensure that any objections are raised by the people undertaking work of a similar complexity defined in the original proposals for tariffs. I know that specialist opinion will be much reassured if the Minister could look favourably on these two amendments.