Care Bill [HL]
Lord Owen Excerpts(10 years ago)
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Lord Owen (Ind SD)
My Lords, I speak to my Amendment 45E. A recent comment article in the Lancet starts off with the words:
“Trust in the protection of confidential patient data in England seems to be at an all-time low given recent breaches in releases of patient data and the finding that hospital data have been sold to companies with insufficient oversight”.
There is no question or doubt that the research base in this country—particularly the base in pharmaceuticals and medical bioscience—is now at a very high level. Of course, it is because of this that there is a very strong debate over whether AstraZeneca should be taken over by the very large American pharmaceutical company Pfizer.
However, we also have to recognise in this debate that without confidence and the free exchange of information in this world of science data, research will be very badly damaged. Already we know that very serious members of the medical profession want to institute not the present opt-out system but an opt-in system. Most of us know that that will make great inroads into the effectiveness of our data. There are also some GPs who, because of their concerns, now actively encourage patients to use their right to opt out. This is therefore very urgent, and I welcome that the Government, in recognition of the crisis of confidence, have instituted a six-month pause. I understand that the pause has now been extended and that there is no artificial deadline.
In that context, there is another root cause for concern. We have been making data available to the pharmaceutical industry and other areas of commercial science for some time. Perhaps I should declare an interest. For 16 years—I am now off the board—I was on the board of Abbott Laboratories in Chicago, one of the very big American healthcare companies. However, well before that I was a neuroscientist at St Thomas’s Hospital and worked in the early 1960s with ICI, using its remarkable pharmaceutical research product, beta-blocker drugs—one of the great discoveries which led to James Black winning a Nobel Prize. I therefore have no need to assure noble Lords of my belief that a thriving commercial sector in pharmaceutical and other research is an important addition to the research that goes on in universities and hospitals up and down the country.
However, it is a fact that when you embark on a new extension of data being available to commercial operations outside the public sector, people demand and expect much higher safeguards. Before moving my own amendment and shoring it up, I looked very carefully at whether it was possible to get agreement on a mechanism to keep data in the public sector unless commercial organisations have expressed consent. That was seen by many people as blocking commercial activity, and it was not possible to reach agreement on it. That makes it even more important that we should have a statutory form of oversight.
The amendment I placed on the Order Paper proposes a new clause that would place on a statutory footing the current non-statutory Independent Information Governance Oversight Panel, which was set up by the Secretary of State. The present chairman, Fiona Caldicott, has the support of many people in this area, both in this House and outside. However, its present non-statutory terms of reference need to be given the authority of a statutory imposition. The new clause would also require persons and bodies across the health and social care system to have regard to its advice. It defines the relevant information; I strongly agree with the two previous amendments tabled by the noble Lords, Lord Turnberg and Lord Hunt. It is absolutely necessary to make it crystal clear what “promotion” means. It has different meanings in many different contexts—some perfectly acceptable and some borderline objectionable. There are other detailed aspects of the amendment, but it is pretty clear in its intent.
The medical profession is not the only body that ought to be considered in this. The Royal Statistical Society has made it clear that oversight and public trust in enforcement could improve the situation. It says that a new statutory body is likely to be needed to fulfil this role. Statisticians are as worried about the loss of confidence that is developing over medical data as anyone in the medical profession—they are the actual people who handle this.
I am pleased, indeed proud, that the amendment is supported by the Wellcome Trust. There is no better trust in the world than the Wellcome Trust. It is also supported by the charities that are associated with medical research, which also know the importance of the Wellcome Trust’s money and expertise. I have talked to the Minister about this and I will leave my comments for when I formally press the amendment, as I do not want to traduce what he is going to say to the House. He explained his position with his usual courtesy, but I remain of the view that, if we are to hold, restore and, in the future, enlarge public confidence—because I believe a greater exchange of information has huge potential—we have to listen to these concerns.
Whether we like it or not, people expect answerability, not just from NHS England, which is a quango, but also from the Secretary of State. Parliament has a role in this, and the issue is every bit as sensitive as some of the others that we brought under statutory oversight, such as embryology, the whole question of DNA and research into all these areas. We thought that they were so sensitive that Parliament should have a say, at least, and should know whether Ministers are taking actions that have qualifications, or even objections, from a statutory body so that we can make a determination. It is in that spirit that I will later seek to press the amendment.
Lord Ribeiro (Con)
My Lords, when many members of the public, and patients in particular, feel that their data may be mis-sold to insurance companies or other bodies that may use them either to increase premiums or for their own personal benefit, then we have a problem. Earlier this afternoon we had assurances from the Minister that that would not be the case. This must be information that is used for non-commercial purposes, which has been made very clear. It is important, too, to remember that patients can opt out. I have heard these expressions about the difficulties that they may have with GPs who might prevent their doing so, but they have a choice. They may well opt out. I believe that if we go ahead with care.data and provide the information as needed, many patients, in time, will see the benefits of this and will choose to opt back in.
We have also talked about the need, again, to have anonymised data and to prevent it going anywhere other than the non-commercial areas. Patients also have a right to decide what to do with their data; it is enshrined in the NHS constitution that they have rights on the disclosure of their personal data. I personally feel that all patients should have their own information—they should have their own notes. They should have a memory stick with their records and have ownership of their records. They can then determine, in the circumstances, where that information goes.
Many people are horrified by the idea of patients having their own records. I had experience of this in 1973, when I was a surgeon working in Ghana. Patients would come with their own notes, moth-eaten and dog-eared. The reason was very simple: if their notes were in the hospital, a certain bribe had to be paid before those notes could be released. Patients have always been suspicious about what happens to their notes. Give them to them—that is what I would say.
The proposal from the noble Lord, Lord Owen, for yet another layer of scrutiny above what is being proposed, is something that we should consider very carefully. He referred to the fact that it would be for the Secretary of State and NHS England to make those decisions. However, noble Lords will recall that when we debated this matter not that long ago, the noble Lord, Lord Willis, and others put forward a proposal for the Health Research Authority. If this Bill goes through, the Health Research Authority will have the authority to decide how information is disclosed. Therefore, I speak very strongly in support of the care.data programme. It is important for patients to be reassured and that point has been well made from all sides of the House. They clearly have to have that reassurance. However, I see no need for an extra layer or an oversight panel. That would provide just one more barrier for researchers to climb.
“The Oversight Panel
(1) There shall be a body corporate to be known as the Independent Information Governance Oversight Panel for Health and Social Care (referred to in this section as “the Oversight Panel”).
(2) The main duty of the Oversight Panel shall be to provide independent advice on all matters relating to the processing of relevant information in relation to health and adult social care.
(3) In exercising its main duty, the Oversight Panel shall—
(a) provide advice and make recommendations and proposals on such processing to the Secretary of State, and report annually; and
(b) provide advice on such processing to any other person in relation to health and adult social care.
(4) Any person or body who is advised by the Oversight Panel pursuant to this section shall have regard to that advice.
(5) The Secretary of State and the Board (“NHS England”) when making directions under section 254(1), and regulations under section 267, must seek and have regard to the advice of the Oversight Panel.
(6) The Secretary of State or, as the case may be, NHS England must lay before Parliament a response to the advice given by the Oversight Panel under subsection (5).
(7) The Secretary of State may by regulations make provision about the Oversight Panel relating, in particular, to appointment of the chair and other members, terms of appointment, establishment and membership of committees or sub-committees, its proceedings and payment of remuneration, allowances and expenses.
(8) The Health and Social Care Information Centre (Establishment of Information Systems for NHS Services: Collection and Analysis of Primary Care Data) Directions 2013 and The Health and Social Care Information Centre (Establishment of Information Systems for NHS Services: Data Services for Commissioners) Directions 2013 are revoked.”
Lord Owen
My Lords, for those who have not been in the debate I will try to deal with the specific responses from the different speakers. First, perhaps I may deal with the response from the noble Lord, Lord Lester. I agree very much with what he said. I believe that the European Court of Human Rights and the human rights legislation, coupled with the privacy Act, do enough to safeguard confidentiality and privacy. With respect, however, that is not what this amendment is essentially about. This amendment is essentially about how you release those documents, what the procedures and mechanisms are, and what the criteria are for release. That is what is so very sensitive at the moment. That is why we need the reassurance of outside scrutiny not only over NHS England, which is effectively a quango, but also over a matter as sensitive as the regulations that might come from the Secretary of State.
In his speech, the noble Earl, Lord Erroll, reminded us of the complexity of this issue. In fact, the issue is geared into a lot of the technology and science of how one collects this information. As for the noble Baroness, Lady Campbell, she warned us seriously about what is likely to come out of Europe, which could have profound aspects. I believe that legislation is coming. However, the key issue is what the noble Earl, Lord Howe, said in his speech. With his characteristic courtesy, he had already given me an indication of how he was likely to reply. Those who were present earlier will remember that I did not try to summarise his views; I thought it was more important that the House should listen to them. I listened as carefully as I could, and I do not want to be churlish about this—what he said was important and will give some comfort to people outside. He said that he was sympathetic to the desire to put an oversight panel on a statutory basis and I very much welcome that. He also referred to how Dame Fiona Caldicott was uniquely well placed to be the chairman of this body and, by implication, a new statutory body. I think that all the contributions from both sides have agreed on that issue.
The noble Earl said that there may well be merit in establishing the existing panel and went on to say that in his conversations with Dame Fiona, she said that she would look first at the question of statutory underpinning and then at it in terms of the relationship. The problem, as I explained to the noble Earl this morning, is that I should like to have a letter from the Secretary of State committing himself to that. Those of us who have been in government know that the time of the legislative committee is very much fought over: everybody wants to legislate but time is short. An unequivocal commitment to legislate would be necessary for me to withdraw this amendment, but, with respect, we did not get one. We got a lot of sympathy, and I hope and believe that legislation will come. I even hoped that the noble Earl would say, “The Government will be neutral. We are not taking a position. Let it go to the Commons and let’s see what the Commons view is”. I think that that would be helpful and would give him more time to build a consensus around the pattern and form of legislation.
If the House does not mind, I would like to ask for its agreement to this amendment—in the spirit that I believe that it would do a lot to ease the current suspicion and distrust over the whole issue of medical data, patient data and hospital data. I say to those who did not hear the speeches that no one in this entire debate has questioned the absolute importance of these data: they could be crucial for this country’s future in the biological sciences and in pharmaceutical research. If the issue is handled properly and with confidence, I believe that we can ensure that the number of those opting out—which is a natural right—will be very small. As long as the number of those opting out remains small then the data will be statistically significant and extremely important. The danger is that the number of those opting out could become quite substantial. I hope and pray that that does not happen. In our vote tonight, we will at least be showing those who are concerned that we believe that there should be a statutory underpinning. I beg to move.
National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013
Lord Owen Excerpts(11 years ago)
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Lord Warner
If the noble Baroness was listening, I think I declared my registered interests at the beginning of my utterances. She is very welcome to look at the register, which will show those particular interests, but they do not shape my view. I would like to finish the argument. If noble Lords want to go on interrupting me that is fine, but I would like to finish the arguments which substantially substantiate the case for accepting these regulations.
As I was saying before I was interrupted, these rules are very similar to the rules produced under the previous Labour Government but with the addition of some sensible provisions on integration. Let me remind colleagues that these regulations are totally compatible with the policy of using the independent sector in the NHS set out in the 2005 election manifesto of the Labour Party. Some may recall that Labour won a third election on the trot with that manifesto. I also remember, as a Minister, implementing the NHS parts of that manifesto with a policy of “any willing provider”. Many of the interests opposing these regulations look remarkably familiar to me from those days.
Even in the swashbuckling new Labour days of modest NHS competition, most PCTs’ contracts were rolled forward each year under that regime without any tendering process, competitive or otherwise. My guess would be that there were probably somewhere of the order of 50,000 of those contracts each year. It would have been totally impracticable and unnecessary to put many of those out to competitive tender each year, or even every three years. It will be the same with the 211 clinical commissioning groups. They will not be able to put out to tender on any great scale a large number of contracts, and they will be operating with a smaller number of staff than the PCTs.
The clinical commissioning groups will have to concentrate their change efforts on those services where there is continuing failure or underperformance, or where it is clear that there is a bigger prize of patient benefits from a major overhaul and out-tendering of services. I suggest that it is almost a paranoid fantasy to suggest that David Bennett and Co. at Monitor, with about 40 staff working on competition issues, will be able to act as a kind of Stasi outfit, rounding up clinical commissioning groups which have not recorded enough competitive tendering processes.
I am afraid that I have to disagree fundamentally with many of my colleagues. My sympathies are with the Minister over these regulations. He has done his best, in his customary patient way, to clarify them. In my view, they are perfectly acceptable in their present form and can always be amended in the light of experience. To my colleagues on these Benches, I would say that we ought to remember what was satisfying to the British public when we were winning elections. This approach of injecting, on an agreed basis, some measure of competition and change where NHS public providers are consistently failing is in the best interests of patients.
Lord Owen
My Lords, the noble Lord and I served together in the Department of Health many years ago, and he will remember that his then boss, Barbara Castle, warned in the 1975 referendum about the impact of the European Economic Community, as it was then called. I thought she was greatly exaggerating the challenge, but it was interesting in that campaign that the allegation that the European Economic Community contained within it the capacity to interfere in the National Health Service was specifically denied.
As I understand the last two speakers, a great deal of justification for this regulation comes from an obligation under EU legislation to go in the direction that we are presented with—competitive tendering, potentially in all aspects of NHS care. Why is this not being done in Scotland, Wales and Northern Ireland, all of which are in the European Union and all of which ought, if this is so compelling, to be under this obligation? Why is it not being done in Finland, Denmark and other countries? Why was specific provision made in the European Union for people to exempt publicly provided services? Why did successive Governments argue that the National Health Service was not going to be covered by EU legislation?
The last speaker’s intervention was painful for many of his colleagues on the Labour Benches, and it is probably right that we should be discussing, as has been already suggested, the 2010 regulations as they affected PCTs. Were they driven by EU legislation? The Minister knows that I tried to get from him through a freedom of information request the advice on which the Government’s legislation was founded, because I felt that we were not being told the truth behind our relationship with the European Union. It was very difficult to hold this debate without knowing the actual legal advice. I hope we will get that. I do not want go too far into all these issues in this debate, but underneath it there is a fundamental question. The National Health Service, as it was conceived, had a substantial element of public provision within it. There then came the provisions of the internal market, which I thoroughly supported and have always believed was necessary. Doctors had to be more conscious of costs. The whole health service had to be aware that it was making considerable economic decisions, often involving budgets of millions of pounds. There had to be a mechanism for cost comparison as a simple measure of good management.
In this regulation we are presented with the full impact of the 2012 Act. It has been hitherto denied, but within this Act is the potential—and I agree somewhat with the remarks that it will take some years for it to evolve—to have a fully marketised National Health Service. If that is the choice, the people of this country should be told about it. They should know that this is the direction in which we are going.
I will now deal with the regulations. We have had the fiasco in which our own scrutiny committee on statutory instruments has been highly critical not just of the statutory instrument that has been withdrawn but of the present one. The committee has also felt that the regulations have not been understood and have had sufficient consultation. We do not even have the consultative document, which we are told is so important, in front of us today. Maybe that is a good thing because it focuses our mind on the legislation. What is the law? That is why subsection (5) is so difficult for many people.
Let me say here what Help the Hospices and Marie Curie Cancer Care think about this. They say:
“The Regulations as they are currently worded will mean that competitive tendering could become mandatory in all but the most exceptional circumstances”.
I stress the word “could”. We cannot leave this as an open question. They say:
“Given the burden of having to put each individual service out for tender”—
which has been mentioned—
“CCGs will tend to bundle services together to put out for contract, as currently happens in local government”.
Quite apart from the fact that the comparison between local government and the NHS does not stand up for one moment, they are right—this, again, has been said—that bundling will take place. The problem for charities and for small funded organisations is that if contracts are bundled, this could put them out of the reach of the voluntary sector providers, which by their very nature are providers of specialised care—unless they are going to be embraced by the bundled commercial companies, and many people think that that is the direction in which we are going.
The charities say:
“If voluntary sector providers are forced out of the market then this could have a negative impact on patients and the communities they live in”.
Most of us have heard of the hospice movement in our localities, which has brought about a massive change in attitudes in the health service that has been very beneficial. Most of us have also had experience of the effect and the value of the Marie Curie foundation. Are we seriously just to ignore these charities when they come forward with these views? Are these changes politically motivated? Are they driven by some ideological persuasion? Are they committed to what was being experimented with in 2010, 2012 and now 2013? We are warned by many professional people, particularly public health doctors, of the effect of these changes.
We have looked at the NHS over many years and pride ourselves on it. It is not perfect, it never was, but it still provides a hugely cost-effective rationed health service and is popular. Why is rationing popular under the NHS? One reason is that it is democratic. People feel that in the general sense it is fair. However, we are now being asked to put all these decisions to an unelected quango. We are now accompanied by a letter that tells us when we can expect to get answers from Ministers and when we will have to have answers from quangos. Is this a change in the NHS? You bet it is. Is this the health service that Aneurin Bevan conceived of? Is this the idea that I thought the Labour Party was wholly, absolutely and totally committed to?
The charities go on to say:
“The problem hinges around the use of the word ‘capable’ in Section 5 of the Regulations”.
They are right to say that. They fear that,
“‘capable’ will be interpreted narrowly to mean only that a provider is able to provide the service within the budget set out by the commissioner. This means that … There will be few if any services where there is only one capable provider … Providers will feel confident to regularly challenge CCGs’ commissioning decisions … Without legal cover to award contracts without advertising, CCGs will simply put all services out to competitive tender to avoid challenge”.
Lawyers in this area tell me that of course they should be opposing this legislation, but in terms of their own financial development—the income that they are going to get—they are of course wholly in favour of it. Consultancies in healthcare are straining at the leash in the United States to come over here and make profits that they cannot make even under some of the HMO arrangements in the US. For 18 years I was on the board of a massive healthcare company in Chicago, and it used to watch the NHS. My wife is American, and she still thinks the NHS is the best thing that she found in coming to this country.
I warn this House: do not think that this is a minor step. If this goes through, the NHS as we have seen it, believed in it and persuaded the electorate that we support it, will be massively changed. It will take five, 10, 15 or maybe 20 years, but unless we pull back from this whole attitude there will be no National Health Service that any of us can recognise, and tonight I feel one feeling only: overwhelming sadness.
Health and Social Care Bill
Lord Owen Excerpts(12 years, 2 months ago)
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Lord Owen
To leave out from “that” to the end and insert “the Bill be not read a third time until the House has had an opportunity to consider the detailed reasons for the first-tier tribunal decision that the transition risk register be disclosed and the Government’s response thereto, or until the last practical opportunity which would allow the Bill to receive Royal Assent before Prorogation”.
Lord Owen
My Lords, this is rather a strange situation. We are coming to the end of an extraordinarily long process of debate, yet there is still one element that is not directly related to the Bill and much more concerns constitutional questions and the Freedom of Information Act. Throughout the Bill, various attempts have been made—mainly by those on the Cross Benches and the Opposition, it must be admitted—to use the Freedom of Information Act to reveal more information. That is a common situation that will be familiar to all Peers: in opposition we seek to use the Freedom of Information Act and in government we tend to try to clamp down on it. I myself tried to obtain the legal advice to the previous Labour Government in 2006 on the implications for introducing “any willing provider” provisions and other aspects as regards EU legislation. The Information Commissioner rejected my application. I accept that because the Freedom of Information Act has been very well established, with a commissioner who makes recommendations. These can be challenged by government or any other interested party. The commissioners can then decide on whether to uphold them and then there is a further appeal.
What is extremely unusual about the request that this register be disclosed—the transitional register, which relates more to the legislation—is that two decisions under the Freedom of Information Act have upheld disclosure. It was a surprise to quite a lot of us that the first decision by the Information Commissioner was that the register be disclosed—in fact, there are two registers. What became interesting was that the tribunal was going to have the matter referred to it. I pay tribute to the noble Earl, Lord Howe, who, on behalf of the Government, recognising the dilemma that we might be in in this House, having come to our normal discussions on the Bill and wanting to hear a decision, asked the chairman of the tribunal, Professor Angel, to bring forward his hearings. That was done and the tribunal sat on the 5th and 6th of this month. Again, its decision was against the Government and was that this register which relates to the peculiar circumstances of this very complex and long legislation should be disclosed.
It is fair to say that the Government have another appeal procedure open to them. There is another tribunal that they can go to. I make it clear that I do not believe that any Freedom of Information Act worth the name would ride roughshod over the legitimate case of the Government to hold back information and, furthermore, to receive information that is confidential to them during the process of legislation or of good government. As we know, the previous Cabinet Secretary went to the tribunal and argued—and I do not disagree—that civil servants, when asked to make risk assessments, wanted to feel confident that they could raise the unspeakable, if you like, with Ministers and not feel hesitant about bringing forward risks.
However, risks go to the core of this legislation, and that is the most important thing about it. The issue before the House is whether the risks of continuing with the legislation—no one believes that there are no risks—are greater than the risks of stopping the legislation. Few would disagree that there must be some risks in stopping legislation, having continued with it this far. This is, if one likes, a balance of judgment. My premise and my plea to the House is that, before making a final decision, all those who respect freedom of information and the world that we now live in with a viable Freedom of Information Act should at least await the decision of Professor Angel and the tribunal. That is all I ask for.
The question is a practical one. Are there enough weeks or days available to the House before Prorogation? I took soundings and it was very clear—certainly among Cross-Benchers, who I am bound to talk to more than others—that there was no belief that this issue should block the legislation; they did not think that it would be appropriate. There was a lot of substance in their argument. Whatever one’s views about the Bill, that can be discussed at Third Reading. The question here was whether we could frame an amendment that would give the Government the freedom to bring this issue back before Prorogation. I used the words,
“until the last practical opportunity which would allow the Bill to receive Royal Assent before Prorogation”.
We are not therefore discussing whether the Bill should go forward. This is not by any standard a blocking measure. Nor, I suggest to the House, would we really be sensible to make a decision in principle whether the tribunal’s judgment should be upheld. It is anyhow, as I said, open to the Government to go to another appeal.
What seems to me pretty important is to listen to what the tribunal has decided. It has made a complex judgment, because it decided that the overall risk assessment should not be published but the transitional risk assessment should. A lot of people are still not sure how that distinction could have been made, but it has. We passed the legislation for freedom of information. I think it was an extremely good piece of legislation. It was put on the statute book in 2000 and was modified in 2005. As I said, it is not a complete licence for anyone to go in to get everything published that they might want. There are checks and balances. It seems to me that we should respect those checks and balances and await the decision.
There is a political and practical reason also, quite outside that. Those of us who have spent many hours and days on the Bill know that we can easily be in a bubble in which we discuss the line by line amendments and the practical wording of the legislation, but I suggest to the House that we are in a very unusual situation. On Friday, the result of a poll held among members and fellows of the Royal College of Physicians was announced. I have an interest to declare. I am a fellow of the Royal College of Physicians and I voted. Thirty-five per cent voted, which, given the circumstances—ballots also go to overseas members—was a pretty high poll, and 69 per cent voted that the legislation should not go forward. Only 6 per cent believed that it should.
Everyone in this House makes their own judgment about a Bill. Pressures from outside, electronic petitions and opinion polls among royal societies come and go and we still make our decisions. I have no complaints about that and I do not believe that the medical profession has any particular monopoly of wisdom on this issue. What is staggering about the legislation is how it has been opposed by practically everybody who works in the health service. I refer not just to unions such as the BMA and the Royal College of Nursing, which have dual functions, both representing their professional bodies. Every royal college that balloted its members has come up with that conclusion.
All I am saying to the House in all sincerity is that we should follow due process on this Bill. Let us demonstrate to everybody that, even if they disagree with it, if the Bill is passed, they must co-operate with the legislation of the House. They must accept it in good will as the judgment of Parliament and they must work within the legislation. But do not leave unfinished business, do not leave out one massively important issue, which is to hear the view of the tribunal that we erected in the legislation and gave the freedom to make a judgment, and which has twice opposed the Government's judgment. I rest my case.
Lord Owen
Before the noble Earl continues on that path, I have never used the word “concealment” in any of the many speeches I have made on this Bill. I also do not believe that it is improper for the Government to appeal on both those points. I do not mind my argument being destroyed, but if there has been any lack of clarity, I have said neither of those propositions.
Earl Howe
I accept the first point. In his article yesterday in the Observer, he called it “constitutional outrage”— or words to that effect—which was the point of my second proposition. Other noble Lords have made the accusation that the Government have consciously set about concealing the risks associated with the NHS reform programme, but that allegation does not stand up to a moment’s scrutiny.
The Bill was published some 14 months ago. During that time it has been subjected to a level of analysis, both inside and outside Parliament, that is without recent precedent. I am not just referring to the Bill’s impact assessment, which runs to 200 pages and dissects the risks, costs and benefits of the Bill clearly and meticulously. Nor am I referring only to the two successive NHS operating frameworks of 2010 and 2011, which lay out for all to see the risks of putting the NHS reform programme into practice, and how the service can best mitigate those risks. Nor do I wish to highlight only the extensive oral and written evidence that we provided to two House of Commons Select Committees, whose reports took apart a very wide range of risks to which the reforms give rise and made recommendations on the back of that. As much as any of these documents, it is the debates that have taken place in Parliament that have aired the risks associated with the Bill. When added together across both Houses, those debates have been of unparalleled duration and scope.
Noble Lords may recall the statement that I made on 28 November 2011, in which I set out a list of nine headings, summarising the areas of risk contained in the transition risk register. Many of those areas of risk have been the subject of amendments and debates during the Bill’s passage through the House. For example, one of the risk areas was,
“how to ensure that lines of accountability are clear in the new system and that different bodies work together effectively”.
Noble Lords will need no reminding of the amendments that we agreed across the House on the chain of accountability in the NHS or the lengthy debates that preceded them. A further risk area was,
“how to ensure that future commissioning plans are robust, and to maximise the capability of the future NHS Commissioning Board”.
We have debated and passed amendments on health inequalities, conflicts of interest, research, education and training and a whole lot more, all of which will directly contribute to those worthwhile objectives. Another area was how,
“to ensure that the new system delivers future efficiencies”.— [Official Report, 28/11/11; col. 16.]
Our debates on integration, the tariff and many other topics have focused on that theme, and there are more such examples. Therefore, I cannot accept for one minute that without sight of the transition risk register the House has somehow been denied a deep insight into what the Bill means for the NHS. It is an absurd proposition.
Why, then, is there such an issue over the release of the risk register? We heard the answer to that from the noble Lord, Lord Wilson of Dinton. We are dealing here with something for which I make no apology—namely, a point of principle. It is very firmly the view of the Government—here I refer to departments right across Whitehall—that the release of departmental risk registers would seriously undermine the work of civil servants if it became an accepted practice. Civil servants need to be able to formulate policy advice for Ministers fully, frankly and without fear that what they say may be exposed to the public gaze. The moment that officials feel inhibited in setting out the possible risks attached to a course of action in worst-case terms, the process of policy formulation becomes weaker and good government inevitably suffers. It is our belief, as it has been the belief of successive Governments, that to agree to the release of a risk register such as the one associated with the Bill would be to cross a Rubicon. It would remove the safe space that Ministers and civil servants need to do their job thoroughly and properly.
The potential for making that judgment was explicitly recognised and allowed for in the Freedom of Information Act. Indeed, our decision to invoke the Act in order not to release the department’s strategic risk register was upheld by the First-tier Tribunal. We await the tribunal’s reasons for arriving at this conclusion, and for arriving at the opposite conclusion with regard to the transition risk register. When those reasons are before us, the Government will need to take a decision on whether there may be grounds for a further appeal. Until then, no one can tell what the legal basis of the judgment is.
Earl Howe
My Lords, I take that to be the meaning of the Motion; in fact, it presents the House will an either/or decision, which if passed, would leave us in an uncertain situation. However, I take it that the Motion of the noble Lord, Lord Owen, means that, failing the first alternative, the second applies.
I have discussed the parliamentary timetable at length with my noble friends, as might be supposed. I am advised that in reality there is little time left in this Session, but there is a great deal of business left to complete: the Legal Aid, Sentencing and Punishment of Offenders Bill is on Report; the Scotland Bill is still in Committee; and we await our amendments to other Bills to come back from the other place, whose own schedule is complicated by the Budget, Easter and the Finance Bill. The clear advice that I have received from the business managers is that to delay Third Reading to await the tribunal’s reasons and a government response would put into serious jeopardy all the excellent work that this House has done to make this a better Bill.
I put it firmly to the House that we need to get on with the Bill. Today is the 25th full day on which we have been discussing it, and during that time it has been greatly improved. There is no major issue in it to which the House has not done justice. Delaying Third Reading would, in my submission, be wrong and wholly unwarranted. We need to get on with it, and the NHS needs certainty—the certainty of the Bill being on the statute book. I therefore urge your Lordships in the strongest terms to reject the Motion of the noble Lord, Lord Owen, and allow Third Reading to proceed this afternoon.
Lord Owen
My Lords, we have heard a lot of speeches and I do not intend to take long, but I reiterate—if any noble Lord has come in late to this debate—that they should again read the amendment. It makes it clear that what we are trying to do is find enough time—a matter of a few weeks—to hear the opinion of the tribunal that has found against the Government on the disclosure of the risk register. That is a provision within the Freedom of Information Act and follows the earlier decision against the Government arguing for the disclosure of the transitional risk register by the commissioner.
It is pretty unusual for the Government to find two such rulings against them, and it seems perfectly legitimate, before making a final decision—which I readily concede has to be made before Prorogation—to give the courtesy, let alone anything else, of hearing the judgment. It is almost as if we are afraid of the judgment.
In fairness to Professor Angel, we heard from the former Lord Chancellor about his credentials. People do not sit on the tribunal for freedom of information just on one case. They have made many different judgments; they know the issues. With respect to the former Permanent Cabinet Secretaries who have spoken, those who sit on the tribunal know the issues—I do not say as well as former Cabinet Secretaries, but they were looking at it from one side of the equation, the well-being of the Civil Service and the service and information they gave to Ministers. The Freedom of Information Act looks at it from a wider perspective. It looks at it for the good governance of the country as a whole. It urges people to look at why we have open government and greater transparency: because people find it much easier then to accept democratic decisions. This is about a democratic process.
Lord Alderdice
My Lords, I have listened carefully to what the noble Lord, Lord Owen, has said. My understanding from his earlier intervention was that he felt it important for your Lordships’ House to understand what was in the transitional risk register so that that would inform its debate on Third Reading. In the light of what my noble friend Lord Howe said—that it is almost certain that that material would not come into the public domain over the next few weeks, as I think that the noble Lord accepts—all that would come into the public domain over the next few weeks would be the reasons why the judgment was made, not the content of the transitional risk register itself. Therefore, I just want to be clear that the noble Lord is saying that all that your Lordships’ House could do would be to debate the reasons of the tribunal, not the content of the risk register. I am not clear how the reasons of the tribunal would inform our Third Reading debate.
Lord Owen
It is exactly the wording of the amendment,
“to consider the detailed reasons for the first-tier tribunal decision”,
if there is sufficient time. This is the issue of freedom of information. I have already openly admitted that Governments tend to restrict information and Oppositions want the maximum amount of information. That is the inherent tension which the Freedom of Information Act was established to try to resolve. It seems wiser to listen to those voices.
The noble Earl raised the question of constitutional issues. The Bill raises some serious constitutional issues. The Government have no mandate for the Bill. They specifically went to the electorate and said that there would be no top-down reorganisation of the National Health Service. That is considered by a lot of people outside this House to be a flagrant lie. That is one constitutional issue.
Lord Owen
I said that people outside this House consider it to be a flagrant lie. I have been around Parliament long enough to know what I cannot say and what I can.
There is another aspect to the Bill. The Government also fought an election on the basis of a constitutional promise that there would be no increase in the powers of EU legislation unless there was a referendum. There are very serious questions about the Bill as to the impact on EU legislation and the extent to which we will see the Commission making decisions on the National Health Service that it has not hitherto thought it either wise or, possibly, empowered to make. That is the second big constitutional question.
Lord Owen
No, the noble Lord has had his say. All I am saying now to the House is that this is a decision on which there are strong opinions in many ways. A lot of Members will vote just on the basis that under no circumstances do they want risk registers published.
I say only this—that when companies are having an IPO, we legislate for them to produce the fullest, most detailed risk register of this. We also empower them in their annual, and in the case of America in their quarterly, statements to reveal risk registers at a penalty of going to court if they lie about it. There were times in this debate when I almost thought we were being asked to give a complete carte blanche to the Civil Service to say what it liked irrespective. I hope that is not the position of the Cabinet Secretaries and the Permanent Secretaries. It is possible that either a commissioner or a tribunal might look at a risk register and think that there were flagrant factual errors.
I think it is very dangerous to use “principle” on this question, if I may say so to the noble Earl. The principle surely cannot be that under the Freedom of Information Act some risk registers might never need to be published in the public good. That is a judgment on which, as he says, one can then go to appeal. However, there comes a point when one would have to judge against the background of repeated demands for disclosure. It is on this that the House must make up its mind. Can we wait a couple of weeks—three at the most—before the House prorogues to hear the words of the chairman of the appeal tribunal to whom we in the Freedom of Information Act gave the power to make that decision? The fact that it is against the Government does not mean we should give them a carte blanche, and I hope that this House will not do so. I wish therefore to test the opinion of the House.
Health and Social Care Bill
Lord Owen Excerpts(12 years, 2 months ago)
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Lord Owen
My Lords, the case has been made extremely well for accepting that one of the most vehement elements of criticism could be somewhat defused if this amendment was accepted by the Government. After all, some people have argued that the whole of Part 3 should be abolished. By accepting that the Government are going to go ahead but just asking that the relevant measures should be phased in seems to me a very rational and reasonable way of acknowledging that there is very deep-seated and justifiable criticism of this legislation.
Reference has been made to the primacy of the need to make the efficiency savings and the need to carry the people in the health service with regard to the provisions in the Bill. I do not want to weary the House by listing the royal colleges that are now opposed to this legislation but it is a staggering development. Nobody can deny the phenomenon that we are seeing; it is unprecedented. I would never have conceived it possible that there would be this degree of professional criticism of the Bill when I first started to look at it and realised that it was in my judgment a very bad Bill. Indeed, it remains so in my judgment. However, I am not here to argue all these cases. This seems to me an important amendment which is geared to accepting that the Government will certainly resist the dropping of Part 3, but may be amenable to phasing it in. Indeed, the Minister might propose a different phasing-in period. It would seem to be a very wise course to deal with the essential elements—the efficiency savings—then bed in some of the other aspects that are new in the Bill and may well be accepted within a short period of time, and leave the element which causes the most deep-seated opposition until later. I hope that the Minister will listen to the argument, reflect it in his speech and be ready to make this important concession to his critics.
Lord Clement-Jones
My Lords, I am afraid that I cannot agree with the noble Lord, Lord Owen, as regards supporting the amendment. However, I appreciate that the noble Baroness, Lady Thornton, has adopted a much more emollient line on Amendment 300A, is not making a full frontal attack on the whole Bill and is looking simply at Part 3. There is certainly an argument to be explored in what she had to say but I cannot understand the logic of why, of all the parts of the Bill that she has talked about today, she is focusing on Part 3. I find it extraordinary that throughout the debates that have taken place on the Bill the Opposition have refused to accept that the National Health Service Act 2006 introduced price competition into the NHS. If Part 3 did nothing else but plug some of the competition problems in the 2006 Act, I would support it.
Health and Social Care Bill
Lord Owen Excerpts(12 years, 2 months ago)
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Baroness Jolly
My Lords, I shall not repeat the many arguments that have been eloquently put this afternoon but it is just worth reflecting, as several noble Lords have already done, that integration is not new. Pooled budgets are not new. Torbay has tried to look at integration as a whole-system approach. My noble friend Lord Newton spoke about mental health integration, which occurs for some conditions in some areas. Therefore, integration is not new. The evidence that it is hugely beneficial is legion. That fact is evidence-based. Not only is integrated working better for people but it makes them better quicker and more effectively. However, integration is not universal. When I read through the Bill, I, like the noble Baroness, Lady Pitkeathley, was delighted to see that there was a duty on both the board and clinical commissioning groups to promote integration. That is good news but in a sense we are trying to use legislation to change culture. That is what it is all about. We have spoken about cultural change, and we have to put together two organisations that are not well used to working together. They jolly well should be but they are not. Therefore, we welcome what is in the Bill, although clearly more needs to be done.
I am quite surprised that the areas highlighted in the amendment would not form part of a regular reporting system, which is what is being called for. We would expect the board to take a lead on the mandate and the business plan. I should have thought that the board, the clinical commissioning groups and the Secretary of State would be expected to report on the status and progress of integration across the whole system. I should be very interested to hear from the Minister how this is expected to happen. Will he indicate how the reporting would function on an annual basis and whether the mandate and annual plan would be used in the way suggested in the amendment?
Lord Owen
My Lords, I rise to speak because I am a little troubled. It looks as though the Minister will object to this amendment. Of course, we are speaking in advance of knowing what he is going to do but I should like to give two or three reasons why I very much hope that he accepts the amendment.
First, using the term “social care” in the Bill means that expectations will rise. Those expectations have not been fulfilled and, to be honest, they could not have been. Nevertheless, it was a good idea to try to point to the fact that this was about more than NHS care or healthcare. We all know—it has been said many times in our debates—that there is no way that we can look at the narrow definition of the health service; it has to be broader.
The other powerful argument which I thought the noble Baroness was going to make is that this is a cultural change, and that needs to be re-emphasised at every stage as part of an educative process. Let us take the national Commissioning Board. This is a new body and the person who has been appointed to chair it is an academic lawyer—a person of great distinction. I am not objecting to the fact that it may be somebody with not very long experience of the health service. Nevertheless, a lot of hopes are vested in that Commissioning Board and to draw attention to it in a more declaratory way in this Bill is very important. It needs to know and see in clear terms in the Bill that this is part of its remit. I take great notice of what has been said about the reluctance of local authorities to respond to this. Were we having a debate involving local authority services, I would raise that, too. For a very long time I have believed that in the 1948 Act a great mistake was made in not pooling together local authority health services and welfare and social services in a comprehensive package. As everybody knows, there was a very deep debate inside the then Labour Government between Herbert Morrison and Aneurin Bevan.
There is also another debate about decentralisation and centralisation. That has been with us all these years. In the very early 1960s I wrote a book about a unified health service. When I was a Minister, there was a great deal of animosity within the medical profession at the thought of working closely with local authorities. It is amazing how that has changed. There is now a readiness in the medical profession in particular—nurses have always done it—to work across these things. I shall make no more points, but I hope that the Minister will accept this amendment. With all the reservations that have been put down, nobody should believe that this legislation will have a very big impact on social care anyhow, but pointing it in the right direction at this moment would be helpful.
Baroness Hollins
The amendments have particular relevance to mental health and learning disability services. In speaking in this debate, I declare an interest as a past president of the Royal College of Psychiatrists. I shall focus my comments on commissioning integrated care.
I remember that in the early 1980s, when I was newly a consultant, we had jointly commissioned services. They worked effectively and provided a very accessible way of developing integrated services. I shall talk briefly about the work that the Royal College of Psychiatrists has already done to support integrated commissioning since the Bill was first mooted. The joint commissioning panel on mental health was launched in April 2011. It is led by the Royal College of Psychiatrists and the Royal College of General Practitioners. It is a collaboration of 15 other leading organisations, service users and carers with an interest in mental health, learning disabilities and well-being across health and social care. It draws on expertise from across the statutory, voluntary and private sectors.
It has already produced guides on primary mental health care and liaison mental health services, which is relevant to the comments of my noble friend Lady Young about integrated care for people with diabetes. My interest here is integrating mental health care into the diabetes pathway. The panel is working on both commissioning guidance: on what is needed; and on practical commissioning tools—how to do it. The practical how-to-do-it tools have been developed with strategic health authorities, thus providing important support to the emerging and new NHS structures. They will be ready in 2013.
The joint commissioning panel on mental health is an example of an existing strong and practical partnership, which brings together the whole mental health sector with government to develop and implement integrated high-quality care and interventions. Incidentally, it is hard to understand why professional organisations leading this work were excluded from the Prime Minister’s recent summit on implementation, given this real focus on that issue. Mental health can so easily be forgotten along with other complex services when physicians, surgeons and politicians are debating health rather than mental and physical health. I am interested to know the Minister’s views on whether this cultural change needs to be in legislation. Some of the experience gained in jointly commissioning mental health services provides very good learning for services traditionally seen as providing stand-alone health episodes—good learning that could be used to develop integrated services in other areas of healthcare.
Health and Social Care Bill
Lord Owen Excerpts(12 years, 3 months ago)
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Lord Owen
My Lords, before the House agrees that the Report should be received, I would like to raise some important constitutional questions. On 4 April, the day the Prime Minister and the Deputy Prime Minister embarked on their “listen and explain” experience and the legislation was paused, I wrote to the then Cabinet Secretary, Sir Gus O’Donnell—now of course the noble Lord, Lord O’Donnell—and raised with him the fear that, because of the long drawn-out legislative process, discussion of the Bill in this House could be pre-empted. I also told him that I had consulted the clerks in Parliament and it appeared that there was no written convention that guides the Government on what is or is not acceptable to take in advance of Royal Assent. Obviously they cannot implement the legislation in full.
Many of my concerns since then have been more than justified. I received a letter on 7 April from the then Cabinet Secretary that said:
“The Treasury guidance on ‘Managing Public Money’ sets out how, in some circumstances and if … conditions are fulfilled, departments can incur expenditure on the measures contained in a bill prior to Royal Assent. In addition, a department may take steps to prepare for implementation using existing statutory powers. I have therefore discussed your concerns with Una O’Brien, as Accounting Officer, in the light of this guidance. She has confirmed”—
this is important—
“that the work currently underway is taking place under the broad powers of the Secretary of State and NHS bodies under existing legislation. For example, the arrangement of PCTs into management clusters and the creation of pathfinder consortia are possible under existing powers in the National Health Service Act 2006. In addition, some of the changes currently taking place would be required regardless of the Health and Social Care Bill. For example redundancies in PCTs reflect the longstanding challenge, which pre-dates the Bill, to deliver up to £20bn of efficiencies across the NHS over the next four years for reinvestment in frontline services”.
As a result of that, there has been broad acceptance in this House that on these controversial questions, some of which are already agreed, the Government are proceeding under existing legislation.
On 16 September I was informed by the chairman of the Constitution Committee that that committee had briefly discussed the pre-legislative disappearance of PCTs, and had in front of it my correspondence with the Cabinet Secretary, which I had made available to Professor Tomkins, one of its advisers. I was asked whether I would provide more information about changes that had been introduced following Second Reading of the Health and Social Care Bill but prior to it coming to the House of Lords. I enclosed an up-to-date document in great detail that had been sent out for consultation by the Midlands and East Strategic Health Authority, which I thought gave a pretty clear indication of the anticipated massive changes to the whole architecture of the NHS, many of which seem as if they will be introduced despite the fact that the full legislative process was continuing.
I also drew attention to a speech that had been made in the other place by a Member of Parliament that had again raised the question of whether it was proper to stop the legislation when so much was already being done and so much pre-emption had occurred. Today I have written to the Constitution Committee on this question because an MP drew my attention to a letter that says that people,
“are absolutely terrified of the chaos that will apply if the Bill is dropped altogether now. Restructuring is a nightmare, un-restructuring could be even worse!”.
On today’s “World at One”, the chief executive of the Foundation Trust Network warned of a no-man’s land if the Bill did not go through.
This raises pretty big questions for legislation that is still to go through all its stages in this House, and it is a matter of great concern to this House when it considers reform. These conventions will become very much more important if we have an elected House of Commons—which of course we have—and an elected House of Lords, which I personally would like to see. There is no question that these conventions are important.
There are two important points here. First, the House should be aware of the fact that the Constitution Committee is seized of the problem and may well wish to make judgments on it. Secondly, we should not feed the idea that legislation can reach us but we cannot do anything about it because it has already been pre-empted. Whatever our views on the Bill, and it is controversial, it is important on democratic grounds that we maintain the position that legislation does not have full authority until it has gone through all its processes. That point needs to be reaffirmed. We should give no comfort to the opposite view in what we say in this House in the remaining stages of the legislative process.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, of course, the noble Lord, Lord Owen, had no obligation to give the Government advance notice of the issue that he has just raised. Nevertheless, I am sorry that he did not. I just say to him that everything that has happened to date in my department’s implementation of the transition programme has been done under the Secretary of State’s powers under the 2006 Act. This is all proper and lawful. However, this can go only so far. It is not a permanent solution, hence the need for the primary legislation that we are now debating.
It has been the practice of successive Governments, once a Bill has passed through the other place, to do as we have done and make preparations for that Bill’s implementation. The previous Government did it on a number of occasions and we are doing so as well. Furthermore, we are doing so in a measured and structured way. It is not an overnight process—it never could be. It is being done over a period of years. It in no way pre-empts the will of this House, which has made its views, to which the Government have listened very carefully, known on a number of issues.
While thanking the noble Lord for raising this concern, which I shall of course consider very carefully, as I always do, I hope the House will feel that it is unconstrained in how it presents amendments to the Government and how it argues for them. We, in our turn, will respond in a constructive manner, as I hope always to do.
Lord Newton of Braintree
My Lords, I assure the House that I rise only briefly. On this occasion, unlike two amendments ago, I have three excuses for doing so, not just two. The first is that I do not always want to be a troublemaker. The second is that I and my noble friend Lord Mawhinney expressed the view at an earlier stage that resistance to an amendment of this kind would be absurd because the amendment reflects the reality of the world. The third I have already referred to: that in the absence of my noble and learned friend Lord Mackay, I feel that I need to say a word not quite on his behalf—that would be lèse-majesté—but at least in his interests, as he has been referred to a lot. I congratulate the noble Baroness and her committee on what has been a remarkably productive role since the endless debates on these matters that we had at the beginning of Committee. It is a great tribute to her. She will not have been able to do this on the whole of the Bill, as she implicitly acknowledged just now, but to have produced this degree of sweetness and light on this issue is a near-miraculous achievement for which she deserves our thanks; she certainly has mine.
Along with that go thanks to others, including my noble and learned friend and many others who have taken part in those meetings, not least—as the noble Baroness has said and as I want to say—the Minister, who has successfully shifted people, who seemed two or three months ago to be dug in a trench in which they were going to die, to accept the terms and the realism of the amendment. That is a great credit to him and ultimately to the colleagues at the other end of the corridor who allowed him to persuade them.
As the noble Baroness said, we can regard this as a real success for the collective wisdom of this House. I just hope that that will be sustained during the rest of the discussions on the Bill.
Lord Owen
My Lords, I shall not detain your Lordships, but the noble Lord, Lord Hennessy, has asked me to speak on his behalf. I find no reason to disagree with anything that has been said, particularly by the noble Baroness, Lady Jay.
The Minister and I are going to disagree on substantial parts of the Bill—and a profound disagreement it is—but right from the moment when the noble Lord, Lord Hennessy, and I negotiated with him, he always accepted that this was an important constitutional and parliamentary point. He expressed readiness to enter into a novel arrangement, which we very nearly reached, but instead it has come around by another mechanism. At all stages, he has treated all of us, Peers and the House itself, with the greatest respect, courtesy and diligence. For that, I thank him on behalf of everyone.
Lord Mawhinney
My Lords, having taken up your Lordships’ time both at Second Reading and in Committee, I want to chip in at this significant point in this particularly significant clause. The noble Baroness, Lady Jay of Paddington, dealt beautifully, succinctly and with clarity with the constitutional importance and relevance of the amendment. I pay tribute to the work that she and her colleagues have done and the clarity with which she was able to persuade us in her contribution.
Colleagues will recall that I did not take the constitutional high ground in my concerns about what was originally expressed. I started from the other end of the spectrum. Whatever we may say constitutionally and whatever the professorial advice, my former constituents did not believe a word of it. They expected the Secretary of State and Ministers to be responsible. That was the argument from the grass roots that I tried to deploy to persuade the Minister to look at this again. I think that I was maybe the first—I was certainly one of the first—to suggest that all this should be taken away from Committee, we should not be tempted into a vote and we should think further about it.
I am delighted with the outcome on behalf of all my former constituents and indeed everyone else in the country, because we are now all on the same page. We are all now saying the same thing. Some of us have arrived there by high constitutional means, others from the grubby reality of the streets. The Secretary of State is the boss and is held accountable. He gets some credit for the successes and all the blame for the failures. That is how it has always been and, thanks to this amendment, it is how it will continue to be. Everyone will think that this is a great outbreak of success and common sense.
I pay tribute to the Minister. My noble friend Lord Newton has just said that the Minister’s colleagues will also have had to have been persuaded to this point. I hope that I will not diminish the sense of satisfaction in the House if I say that perhaps the Minister will have had a more important part to play in that process than the debates in this House.
Whether or not this is your Lordships’ House at its best, I do not care to judge. However, I will tell those of your Lordships who have not had the privilege of serving in the other place that this could never have happened there—never have happened. That is because the other place is infected with a degree of party political commitment that is frequently, though not always, spared at this end of the Corridor. Incidentally, for those who do not share my view and would like to see an elected Chamber, I gently point out that if what I am saying is true, this amendment today would never have been possible in the new, so-called “modernised” Chamber that is envisaged.
I refer to the introduction of the noble Baroness, Lady Thornton, to the previous set of amendments. I pray in aid the fact that she said that she would take responses in this debate rather than in the previous debate. She mentioned me by name and I thank her for that. She reflected accurately what I have just explained at some length. However, I will give her something else that she can quote accurately in the future. I congratulate my noble friend the Minister. He has done an excellent job, not for the benefit of the party, the Government or even the health service, but for the country. I am among those who feel indebted to him for what he has done and the spirit that he has adopted. I hope that, on reflection, the noble Baroness will realise that her introductory three minutes of an extremely party political nature were seriously out of sync with the consensus mood of the House at this time.
NHS: Transition Risk Register
Lord Owen Excerpts(12 years, 4 months ago)
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Lord Owen
My Lords, there is a Motion on this very subject before the House in my name, and I hope that there will be an opportunity well before we reach Report for it to be debated. Since public companies are under strict obligations to publish their risk assessments—they have to weigh very carefully what they say because they could be sued by shareholders in their companies—why is it so different for Her Majesty’s Government in the circumstances in which the Information Commissioner has expressed the view that this is a legitimate case that ought to be made available?
Earl Howe
The Freedom of Information Act was framed specifically in a way that would protect the process of policy-making within departments. Our view is that the risk register forms an integral part of policy-making and implementation; the Information Commissioner came to a different view. It is about the balance of public interest here: we wish to see this process adjudicated further.
Health and Social Care Bill
Lord Owen Excerpts(12 years, 5 months ago)
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Lord Low of Dalston
My Lords, I want to speak to Amendment 347B to Clause 247. It teases out the kind of argument made by the noble Lord, Lord Warner, in a more specific form. This probing amendment has the aim of finding out more about the Government’s approach to information provided to patients in accessible forms. Perhaps I have missed something, but I could not find much in the Bill about the provision of information to patients, but given the importance of the principle of “Nothing about me without me”, this would seem to be a serious omission. The provision of information in a form that people can use is a sine qua non of patient empowerment. It allows patients to take control of their situation. Without it, you can hardly get to first base. Maybe the Bill could do with some fleshing out in this regard, and I would certainly welcome the Minister’s views on that.
In the rest of my remarks I want to concentrate on the question of providing information in a form in which people can use it. My particular angle on this is that it should be published in an accessible form so that people with a print disability can handle it, which is what my amendment deals with. It would enable the Secretary of State or the NHS Commissioning Board to publish information standards containing a requirement to record patients’ preferred reading format, whether standard print, large print, audio or Braille. This is an essential precursor to communicating effectively with patients who have print disabilities and giving them proper access to vital information about their health. It will immediately be clear that I have a direct personal interest in this, but I should also declare my interest as a vice-president of the RNIB, the leading charity representing the interests of blind and partially sighted people, for which improving access to information is a major objective of policy and campaigning.
I have raised this issue regularly in the House with cross-party support in debates on local democracy, local transport and other issues, and the matter was dealt with generically in the Equality Act 2010. Ministers have invariably been sympathetic, but I am sorry to say that we still have some way to go in making the provisions of that Act a reality in practice. Article 21 of the recently adopted UN Convention on the Rights of Persons with Disabilities on freedom of expression of opinion and access to information, which the UK has ratified, says that states parties should be,
“providing information intended for the general public to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost”.
Yet in the area of health services it is not so long since a survey of blind and partially sighted people in the UK showed that 95 per cent of respondents had never received health advice leaflets or information from their local surgery in their preferred format; 96 per cent had never received letters from their GP, the results of tests or other correspondence in their preferred format; 95 per cent had never received medicines labelled in large print; and the NHS was apparently unable to send out appointment letters in an accessible format.
Research for the RNIB carried out by Dr Foster in 2010 showed that things had improved a bit in recent years but that there was still a considerable way to go. In the Dr Foster survey, 72 per cent of those questioned were given information by their GP in a form in which they could not read it. Similar, even higher figures were uncovered in relation to the rest of the NHS. This included information ranging from appointment letters to confidential test results, which is not the sort of thing that you would necessarily want someone else to read to you.
I recently moved house and joined a new GP practice. I was pleased to be asked on the form that I was required to complete in order to register whether I would like information in Braille. This was as novel as it was gratifying. I do not delude myself that this amendment would be a panacea, but it would take us a long way further forward than the guidance that we have at the moment, which clearly is not working.
Lord Owen
My Lords, I shall speak to Amendment 347A, particularly the phrase,
“to exercise informed choice by ensuring maximum transparency of dissemination”.
The House may remember that, at an earlier stage, I raised European Community law and the need to have a great deal more information about this issue. It is all very well for the Government to initiate this rather broad guidance about publishing information and information standards; it gives the impression that they are interested in having a wider debate on transparency. However, I got a letter from the Department of Health only late yesterday telling me that an application that I made under the Freedom of Information Act was being challenged. I started a request on 26 April 2011. I went through all the procedures of internal review on 1 June. I was eventually given a judgment in November, at which point I immediately re-requested the same information. One cannot read this correspondence without getting a sense of obfuscation, of a deliberate refusal to tackle the issues that I have been raising with the department and of a spinning-out of a process during the passage of legislation of the utmost importance to the department.
It is necessary to ask the Minister whether he knows that this letter has come to me following my request on the Floor of the House and his courteous reply that he would look at the question. I am now told that I would normally have to go through another internal review procedure, which would take, no doubt, another month or more, by which time this Bill will have gone through all its stages and probably left the House of Lords. So underneath this is a deeper question.
I also find it slightly objectionable to have received in reply to the request a more definitive statement of the ministry’s attitude. I shall read out one paragraph in particular:
“Furthermore, we agree that information relating to competition in the NHS and the delivery of healthcare services attracts the public interest”.
We can all agree on that. It goes on to say:
“However, there is much information already in the public domain about how competition law does and does not apply”.
But that is open to serious question. Professors on competition law have been writing to me from university departments saying that this is a very cloudy area and that it is difficult to get a lot of the information. The letter goes on to say:
“This includes recently published guidance by the Office of Fair Trading on the application of competition law to public bodies and comment on the case law relating to public purchases, which suggest that these are unlikely to be considered as undertakings and therefore could not be considered under competition law”.
Baroness Williams of Crosby
In view of the reference to me by the noble Baroness, Lady Wheeler, perhaps I may say a few words before the debate proceeds and the Minister replies. The Committee showed good sense—and the noble Baroness, Lady Thornton, was good enough not to press the matter to a vote—over the information tribunal’s decision on the risk register. At the time, it was sensible to undertake to withhold our judgment until there had been an opportunity for the tribunal to consider the Department of Health’s appeal. However, the intervention by the noble and learned Lord, Lord Mackay—as the noble Baroness, Lady Wheeler, indicated—clearly suggests that it would be possible, by a mutual approach from the Government and the Opposition, to speed up the processes under which the appeal was held.
Given that the government Chief Whip agreed that the matter should not come before the House on Report before the end of January, that provided an additional three weeks—a reasonable period of time—to try to persuade the tribunal to act reasonably rapidly. The noble and learned Lord, Lord Mackay of Clashfern, was good enough to say that in some cases which he knew of, the tribunal had been able to deal with an issue in as little as three or four days. That seems very apposite, since it is hard to think of anything much more constitutionally important than the Report stage of a Bill of this kind, and there should be no question of the debate on Report taking place before there is an outcome to the tribunal appeal.
This House recognised that it was proper that the law should take its normal course. We therefore withheld any attempt to try to press it by, for example, insisting on a vote. I think that that was to the credit of the Official Opposition. However, it is quite clear that the decision is very germane to the Report stage. It is highly relevant. All of us accept that if the appeal is upheld then we will be bound by it in a proper course of law, appropriate to all people who come before the tribunal. However, we also all recognise that it lies upon the Government to endeavour to reach a decision as quickly as possible. I am sure that the Opposition, and certainly we on these Benches, would strongly support an approach of that kind.
I would simply plead with the Minister, who has been so reasonable to the House on so many matters, to recognise that there is a real difficulty if the appeal, not having been heard, hangs over Report, and as a result leaves people able to say, “But if the appeal had gone the other way, X and Y would follow”. If the Department of Health—whose record is patchy, to say the least, as the noble Lord, Lord Owen, has rather sharply pointed out—really cares about information being made available, or at the least upholding the law that makes the tribunal make a final decision, it really is crucial that, at the end of this Committee stage, we hear from the Minister whether steps are being taken to accelerate the process as much as possible to enable Report to start properly at the end of January. I would simply urge that attention might also be paid to the further evidence provided by the noble Lord, Lord Owen, which, to say the least, is somewhat disturbing.
Lord Owen
May I just make a slight correction? I said that the debate on the impact of the European Union on healthcare in the United Kingdom in the name of the noble Lord, Lord Kakkar, will be held on 10 January. It will actually be held on 11 January, as the dinner-break business. I want to be quite clear about the timing of that important debate, which at the moment is limited to a maximum of one hour.
While I am on my feet, I want to stress that every word that the noble Baroness, Lady Williams, has said is wholly appropriate. This question of risk assessment is central to the judgments which will have to be made at Report. I hope very much that we do not proceed to Report until the tribunal's judgment has been heard.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, perhaps I could begin by addressing briefly the matter of the risk register. Arising from earlier debates on this subject, I have discussed the timetable for the appeal with my officials, and I say again that I recognise fully the strength of feeling on this issue and the desire for speedy resolution. As noble Lords are aware, the timetable for matters of this kind is a matter for the Information Commissioner and the legal process. In view of the noble Baroness’s very courteous suggestion that I should write to her and to the noble Baroness, Lady Thornton, about this, I undertake to do so straightaway. I will copy in my noble friend at the same time. In that letter, I undertake to give as much information as I can at the moment about what we see as the likely timetable for the process.
Health and Social Care Bill
Lord Owen Excerpts(12 years, 5 months ago)
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Lord Warner
My Lords, Amendment 344 in this group, in my name and that of the noble Lord, Lord Patel, and the noble Baroness, Lady Thornton, has been prompted by the Government’s apparent wish to remove NICE from technology appraisals of new drugs to assess their cost-effectiveness.
I join my noble friend Lord Hunt in paying tribute to the work that NICE has done. These technology appraisals were the original purpose of NICE when it was set up, against the wishes of the pharmaceutical industry. It has done sterling work in this area which has provided it with an international reputation. One of the strange ironies of this is that the pharmaceutical industry has come almost to love NICE, because the commercial value and standing given to some of its new products when companies receive a positive appraisal by NICE has been considerable. When I went to America to make my peace with some in the pharmaceutical industry after cutting their prices, and after they sometimes broke down in tears over the drop in their profits, they would say that if the mean NHS was willing to pay for those drugs, they must be good things in themselves.
Value-based pricing still looks to be some way off and it seems premature to many to remove NICE from the sphere of technology appraisals—here, I should declare my interest, because I have been a Minister with responsibilities for NICE. I want to press the Minister to tell us more about the arguments for removing NICE from this work, particularly given the financial challenges faced by the NHS, and whether the Government will think again about technology appraisals and NICE’s responsibilities there. That is the purpose of the amendment; I look forward to hearing the Government’s views.
Lord Owen
My Lords, I wish to extol the merits of NICE after watching it from the other side, which is the pharmaceutical industry. It is certainly true that the United States pharmaceutical industry was appalled initially by the appointment of NICE and there are still a lot of people who dislike it intensely. Nevertheless, it has established a scientific credibility which is rare in regulatory activities and which it would be absurd to forgo.
I am worried about a lot of the language used about NICE in this legislation. I know that “direct” will be discussed in another context, but there is an overall intent effectively to bring the body into the Government and make it answerable to them. The important quality of NICE, which was established particularly when it first arose, is its measure of independence. If that measure of independence is lost, NICE’s authority and credibility will go with it. I see a lot of merit in ensuring that the appointment of the chair carries not just the imprimatur of the Secretary of State but the imprimatur of Parliament. The Select Committee on Health, which has shown itself over many years to take an informed and knowledgeable view of the National Health Service, is a credible check on NICE becoming not just another annexe to the Department of Health.
I am also concerned about the additional responsibilities being given to NICE. NICE’s quality came from the fact that it was highly focused. That focus was on the pharmaceutical industry but it was also on science and scientific appraisal. It is a great help to the department to have this authoritative, independent view. We all know how easy it is for so-called wonder drugs to get sponsored by newspapers, individuals or trends. What NICE did was to give an authoritative viewpoint, as far as possible objectively, and to take its time sometimes when there was great pressure for an early pronouncement. It was able to withstand that pressure and say, “Until we get more evidence, we will not be able to form a judgment”. We all know that it is very difficult for the department, for Ministers and for people who are in the front line to have that measure of detachment, but scientific evaluation requires it, as well authority that has been built up over a substantial period.
I hope that the Government will not only listen to the proposers of the amendments but take this issue away and ask themselves whether they are not scoring an own-goal. NICE is an organisation that has worked; not many of our organisations in this field work quite so successfully and build such a substantial reputation within the profession which was sceptical about it. I agree with the noble Lord, Lord Warner, that even the pharmaceutical industry has come to see its value. A lot of other countries are looking at NICE and want something similar to be established. A lot of the language in this part of the Bill goes against that trend. I will listen carefully to the Minister’s reply, but I hope that the Government will have a fresh look at this matter.
Lord Patel
My Lords, I have added my name to Amendment 344 tabled by the noble Lord, Lord Warner. NICE should continue to do technology assessments or appraisals. It is not surprising that I should support the amendment, because I was closer to the establishment of NICE than most people may know, although I said so at Second Reading. It was a paper written when I was chairman of the Academy of Medical Royal Colleges, to establish a national institute of clinical effectiveness, which led to the establishment of NICE as an institute of clinical excellence. At the same time as Mike Rawlins, a good friend for many years, started with NICE, I was involved in a similar exercise with SMC, its sister organisation in Scotland.
The key thing about both organisations is that, despite their appraisals of drugs, neither of them has been taken to court about their advice. That says something about the scientific veracity with which examinations are carried out. Although I have views that are sometimes slightly different from NICE—for example, I think that we will have to adjust in due course the QALY from £30,000 a year because we will find with drugs that are more expensive and effective that that price is too low—I go further and say not only that NICE should not be stopped from doing these appraisals but that its remit should be extended to biochemical tests, which should not be used in the NHS unless they are proven to be useful. As genomic medicine advances, more molecular and genetic tests will come on the market. It is already happening in the United States. Tests are used which are not found to be scientifically appropriate and marketed at a ridiculous price. I give the example of a test that is used to predict whether a person with a myocardial infarction will develop chronic heart failure. We use a much simpler test. They charge £8,000 for a test which must be done twice a year; we use a stethoscope to listen to the chest to see whether there are any bubbles in it. If there are not, the person is not in cardiac failure. It is as easy as that and every medical student is taught it. It will become even more important that an organisation that is as respected as NICE is given the task of assessing biochemical, molecular and genetic tests before they are implemented in the NHS, otherwise their cost will be enormous. Every marketing company will come along and say, “This test should be used”, as is happening in the United States. I would therefore extend NICE’s technology appraisal remit beyond drugs. It offers proven, scientifically driven assessments and I cannot see why we should stop them. Besides, we would see one part of the United Kingdom continuing while another part did not. I know that if NICE says a drug produced by a British pharma, particularly a big pharma, is not effective based on QUAL, it might be difficult for that pharma to market the same drug internationally, but that is an issue that needs to be tackled separately. Value-based pricing of drugs may be an area that we need to look at again, but not the appraisals.
Lord Patel
My Lords, briefly, I support this amendment and Amendment 343, which has been tabled in my name. Although the amendments refer to “clinical quality standards”, I am well aware that the Bill itself refers to them as “quality standards”. It was I and the noble Lord, Lord Warner, who suggested in previous amendments that “clinical” should be introduced, but I recognise of course that these quality standards will concern not only clinical but social care, and there should therefore be a reference to clinical and social care.
I have also made the point before that these standards ought to cover the patient’s journey of care, which goes from diagnosis through primary, secondary and tertiary care and on to social care.
I believe that I know something about clinical quality standards, and while the noble Lord, Lord Warner, referred to standards written in the United States, closer to home there have also been hundreds of standards written over the past eight years. I bet your Lordships now that the methodology that will be used by NICE will be exactly identical, but that is an argument which I will have with the chairman or chief executive of NICE—no doubt over a dinner some time.
What is important about these standards is that they are evidence-based so that it is possible to defend them, just as technological appraisals are evidence based and therefore possible to defend. The evidence that we are looking for is that which will deliver the best outcome for the patient, in terms of safety of treatment, diagnosis, patient experience and outcomes in terms of diseases.
It is also important that they should stand the test of time—that they are written and based on evidence that is tested over time, so that they do not have to change every three months and have people complaining that treatment has moved on. Experience has taught us that it is possible to write those kinds of quality standards, which stand the test of time but, as the noble Lord, Lord Warner, said, they are time consuming to create and therefore they have to be resourced. If you are creating standards for over a patient’s journey of care, it will require several months and expertise to do so. If you intend to have more than five or six standards a year, you require to resource them fully.
Another important issue is that standards have to be tested before they are finalised so that, just as with the technological appraisal of drugs, you do not get complaints from clinicians or anyone else. I can tell noble Lords that doctors are very good at complaining afterwards if they are not consulted. There have to be consultations with both clinicians and the public so that they will feel happier that the standards are evidence-based and will deliver the outcomes that we expect.
A third important aspect is that the standards should be easily understood. I was clear when I did the job that every one of the standards written should get a crystal mark, so that they were written in a language that people could understand. If we are going to evolve and develop information standards, a further value is that each of the quality standards is an opportunity to inform the patient about what they should know about their disease and its treatment. There can be simply written questions that the patients or relatives can use to ask about the problem in question. That gives us an opportunity to use the standards not only to manage the care of the patient but to inform the public and the patients about their disease. That way, you make the public better informed and able to demand the kind of quality care that they should get, so the systems will be operating in a way that delivers care.
My Amendment 343 says that standards should also cover long-term conditions. To me, that deals with the problem of complex long-term diseases, which need to be managed in both the acute sector and the primary or community sector. The standards should therefore be written as a patient journey of care over a longer period of time. Those are the quality standards that we should be embarking on and the numbers that we should provide for.
Lord Owen
I thank the Minister for his explanation earlier. I found much of it convincing, particularly his statement that Professor Mike Rawlins thought that this was a vote of confidence in his organisation. I have long had respect for Professor Rawlins—he was an adviser to the SDP many years ago, so I can hardly disavow his advice at this stage. I urge the Minister to consider for one moment that Amendment 342 would go a long way towards reassuring a lot of us. It would take out the word “direct” and put in the concept of agreeing, which would be much more beneficial if he wants to establish the relationship in reality.
Lord Hunt of Kings Heath
My Lords, I follow on from the noble Lord, Lord Owen. Clause 231 says:
“The relevant commissioner may direct NICE to prepare statements of standards in relation to the provision of … NHS services”.
In relation to a quality standard regarding the provision of NHS services, the relevant commissioner means the Commissioning Board.
I come back to the point about independence: surely it should be the Secretary of State who should direct NICE to prepare statements of standards in relation to the provision of NHS services. Surely, under this architecture, the concern of the Commissioning Board will be money. It is going to have to ensure that the NHS delivers what the Secretary of State requires in the mandate, which is growing ever longer as we debate the Bill, and that will mean quite a lot of pressure on it. I am worried that because it can direct NICE to prepare statements of standards, it is bound to be governed by finance; in fact, it is bound to relate the number of standards that it directs to the resource issue.
Of course one has to take account of resources, and the very fact that NICE’s technology appraisals are concerned with cost effectiveness is a recognition that we have to make judgments about the use of resources, but I would have thought that there was benefit in there being a distance between that direct concern of the Commissioning Board and the overriding leadership of the service that the Secretary of State must provide.
I wonder if the Minister would be prepared to give this further consideration. In this part of the Bill and in Clause 236, where the board can give directions to NICE, one simply has anxieties that, at least visibly, the independence of NICE might be compromised.
Health and Social Care Bill
Lord Owen Excerpts(12 years, 5 months ago)
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Lord Owen
My Lords, I hope I will not be spending too much time on the excellent argument that we have heard from the noble Lord, who is a lawyer. I agree with everything that he has said, except that I want to draw attention to the absence of detail that, if we do not move now, we will confront when we face regulations on competitive markets and on the whole question of a qualified person.
Let me first say to the Minister that it should be very clear that there is no consensus whatever on this aspect of the Bill. You cannot be aware of the arguments among general practitioners, among surgeons and physicians and within the nursing and midwifery profession and still believe that there is consensus on this question of competition. There is very considerable concern. As to his assertion that all this was fundamental to the modernisation of the NHS, if this is not changed it will be fundamental to the destruction of the NHS.
Let us start with the first issue. We have evidence— like evidence-based medicine—about what unbridled competition does to a national health service. It has been referred to earlier in the debate. I recommend noble Lords to look at the question raised in the article by Colin Pritchard in the Journal of the Royal Society of Medicine this year, comparing health service competition policies in the USA, the UK and 17 western countries between 1979 and 2005. The conclusion is:
“In cost-effective terms, i.e. economic input versus clinical output, the USA healthcare system was one of the least cost-effective in reducing mortality rates whereas the UK was one of the most cost-effective over the period”.
This is not a health service that deserves to be turned upside down and it does not deserve to be exposed to the American healthcare system. I have had 17 years as a non-executive on the board of one of the biggest American healthcare companies, Abbott Laboratories. Many aspects of American medical scientific research are the finest in the world. Many aspects of medical and surgical care in certain specialised hospitals in the United States are undoubtedly the best in the world. There is considerable excellence, but if you look at the system overall there is a deplorable decay in quality of care in some parts of the United States, which would make a third world developed country ashamed. I am not prepared to be borne along by some vague talk of consensus on this Bill. The Bill is hated in many aspects, particularly this aspect, in the National Health Service. The BMA has said that it should be withdrawn and has calculated that it would be less disruptive to withdraw it now than for it to continue.
Let me take up some other aspects. I shall speak to the Amendments 278AA, 278BB and 278BC in my name. Amendment 278BB would insert,
“shall not commission services through competitive markets through a competition-based mechanism”.
“Competitive markets” is a term of art. It has meaning in the world of competition. The requirement to manage competitive markets arises from supra-national legislation, with a detailed regime that must be applied, specified in EU law and reflected in national law. That is an obligation to reflect the EU regime unless some clawback of sovereignty is made.
That is the situation, and it applies right across the board. Mr David Bennett, who is to be the chairman of Monitor, wrote in an article in the Times in February:
“We, in the UK, have done this in other sectors before. We did it in gas, we did it in power, we did it in telecoms … We’ve done it in rail, we’ve done it in water, so there’s actually 20 years of experience in taking monopolistic, monolithic markets and providers and exposing them to economic regulation”.
First of all, I do not concede that the National Health Service is a monopolistic, monolithic market. It is a very interesting fact, which is frequently forgotten, that the GP is an independent contractor, and has been since 1948. Many of the debates in this Chamber focused on this issue. My father was a doctor before the National Health Service. He charged patients because he had to. He hated doing so. But he was adamant that he was not going to go into a National Health Service—which he wanted and which he voted for in 1945—if he had to give up his independent contractor basis. He may have been wrong or he may have been right, but it is a massive difference in how you describe the NHS when you think of these independent contractors who have been there from the start.
There are many other aspects of the hospital basis of the National Health Service, which took on in 1948 the spirit and commitment of voluntary hospitals up and down the country. Their assets were frankly seized by the state, but fortunately a lot of their moral underpinnings and fundamental values were not. It has been one of the triumphs of the National Health Service that it has been able to take some of that voluntary spirit and keep it within the National Health Service. Why was it that for decades, hospital doctors, surgeons and physicians worked very long hours uncomplainingly? What absurdity it is that that has been taken away from them by EU regulations and we have successive Governments who all agree that it is ridiculous nonsense, but they can do nothing about it. We are about to do the same to the whole National Health Service on this EU point. This is not a minor point.
The noble Earl knows that I respect him very greatly as a parliamentarian. He has shown it day after day in the patient way in which he has examined the debates in this House, many of which have not been controversial, but have been informative and intelligent and could make some addition to this Bill. But I am afraid that on the fundamentals he speaks for a department that shows at every serious part of examination of the Bill that it is not prepared to provide us with the true facts. We had this debate about risk assessment. Let me come to the issue about competition. In 2006, a Labour Government commissioned a major study on competition and the effects on the EU. It is a scandal that I have been trying for months through Freedom of Information to get hold of this document so that we would have it before this debate.
Earl Howe
They are there because this is the first time that any Government have attempted to bring together under one umbrella the disparate parts of our existing system for regulating and controlling competition. As I said earlier, we have that system in skeletal form, but there are lots of gaps and inconsistencies. By bringing them under one umbrella, as this Bill does—I am afraid that it inevitably occupies a goodly number of clauses—we will have a coherent system of regulation for the future.
Establishing concurrent powers for Monitor would not extend the scope of competition law or its applicability to the NHS; that is an important point for noble Lords to appreciate. Why have a sector-specific regulator? For me, the reason is that, instead of such matters being reserved for the Office of Fair Trading, Monitor will be able to lead on these issues in its capacity as a regulator with statutory duties to protect and promote patients’ interests and to enable integration, and as a body with much greater knowledge and expertise of healthcare compared with the Office of Fair Trading. That would include, for example, where arrangements such as clinical networks, which may restrict competition, deliver overriding benefits to patients. Just because there is no competition, that does not mean that the behaviour in question is anti-competitive.
That view was forcibly brought out by the NHS Future Forum. As I have said, competition is just one of the tools available to the commissioner in securing access and improving services, and it will be the commissioner, not Monitor, who will decide where and how to use it. That is not new. The use of competition—for example, through competitive tendering—is already well established in the NHS. A range of providers—NHS, voluntary, and independent—are contributing to improving services for patients.
Of course I understand the passion with which the noble Lord, Lord Owen, spoke; my concern is that his amendments would remove from the Bill a protection for patients in relation to the actions of commissioners. That is very important; if the noble Lord’s amendments were accepted we would have commissioners taking decisions that were not overseen or checked in any way, which would be very dangerous. It would also be a backwards step from the existing principles and rules that apply to primary care trusts and that were introduced by the previous Government. The noble Lord, Lord Owen, said very interestingly that according to his research the French railway system is not subject to EU competition law. I defer to his knowledge of French railway legislation but, as is made clear in the OFT’s recent guidance, the issue of whether competition law applies requires an analysis of the activity in question. To insert a clause into the Bill just to say that EU competition law shall not apply to the NHS would not achieve that aim. EU competition law is a fact, so we have to ensure that the system that we put in place protects patients against breaches of the law and that when breaches do occur they are remedied effectively.
Earl Howe
I shall indeed look very willingly at that question and I am grateful to the noble Lord for raising it. Although I might not appear to be at times, I am very keen to be as open as possible about as much as possible. Whatever I can do to facilitate this I will, although it is not a matter that I have been directly involved in.