National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013

Debate between Lord Turnberg and Lord Howard of Lympne

Wednesday 24th April 2013 Lords Chamber

[Lord Turnberg]

I am delighted to be able to follow the noble Lord, Lord Owen. He puts his finger on it. It is hard not to think that we are coming up against some rather polarised views lying behind this debate about how far we can go with the use of private providers in the NHS. On the one hand there are those who believe that private providers will drive up quality and efficiency by the competition that they introduce, and on the other those who see private providers in it for the profit that they will make from the NHS.

Clearly I cannot go into this tonight but I want to say two things. First, we have an NHS for which everyone pays through tax for the common good and which distributes resources to those who need it so that society as a whole can benefit. By opening up the NHS to private companies we are increasingly using that taxed income to provide for, among other things, their profits. When we go down that route we have to be sure that we are getting something that is worth while for society and that we have the balance right. Secondly, I have the feeling that instead of the welfare state, to which we are all signed up, being regarded for the common good, it seems to be increasingly regarded, in some quarters at least, as a cost to society and an onerous subordinate to economic policy. This is not a debate for today, although we need to have that sort of debate. It does, however, colour my views about this contentious set of regulations.

According to the wording of Regulation 5, as we have heard, commissioners are legally obliged to go out to tender unless they are satisfied that services can be provided only by a single provider. Despite the reassurances by the Minister and his colleagues, the wording here is so unambiguous that a number of distinguished lawyers tell us that there is no way out of having to tender for everything else. The fact that the Government’s lawyers are able to come up with a different conclusion, as I am sure the Minister will tell us, suggests at least that there is room for confusion and for something that would have to be tested in the court, and no doubt the courts will pray in aid the EU competition law.

I am most concerned about the problems that this tendering process will cause, as are the many organisations that have written to us. For example, if we look at where the most severe difficulties lie in the health service and try to think what tendering from a variety of providers might do to resolve them, we come up against a major barrier. It is in the care of the elderly, of those with long-term multiple illnesses and of those with mental illnesses that we are clearly failing in the NHS. Yet those are the services that private providers as well as insurers are least likely to want to take on. They are much more interested in aspects of care that come in neat packages—short-term items such as cold-planned surgery or investigation that are readily costed and charged for. But these are the sorts of care that by and large the NHS is pretty good at. It is here where the cherries lie and which private providers will try to pick, leaving longer-term care for the less glamorous, chronically ill elderly and the mentally ill to the NHS. It is not a future that many in the NHS are likely to welcome.

This says nothing about the administrative costs of this tendering and contracting, which will not be trivial. It says nothing about the barriers that it will throw up to the integration of care across several disciplines, which is already quite difficult to achieve. Will multiple providers make it easier or more difficult for integration? I cannot see it.

For these and the many other reasons that other noble Lords have raised, these regulations are a distraction designed to maximise private sector involvement and leave far too little room for commissioners to be sensible and flexible in their approach. They should be removed entirely, and if that is not possible they should be reworded to make it absolutely clear to commissioners and everyone else that what Ministers are telling us is also written clearly on the tin.

[Lord Howard of Lympne]

My Lords, I declare my interest as chair of Help the Hospices, and in a moment or two I shall put the remarks of the noble Lord, Lord Owen, in context. However, I shall begin by correcting a report that appeared in the Financial Times last week, which said that Help the Hospices and other charities regard these regulations as a fresh attempt to privatise the National Health Service. I cannot speak for the other organisations, but that is not the way that we at Help the Hospices look upon these regulations.

The original regulations gave rise to considerable concerns, and I pay tribute to the Government for being prepared to listen, to think again and to revise the regulations. The revised regulations go some considerable way towards allaying those concerns. They do not go the whole way, and the noble Lord, Lord Owen, identified some of the concerns that remain, but we believe that those concerns can be met not by annulling these regulations as the noble Lord, Lord Hunt, seeks to do this evening, but by ensuring that the guidance which the Government intend to provide removes any ambiguity and removes the dangers to which the noble Lord, Lord Owen, referred.

The noble Lord and I have long experience in different contexts of the difficulty of covering every contingency in the wording of regulations, of getting the wording of regulations absolutely right and avoiding any degree of ambiguity. The previous speaker, the noble Lord, Lord Turnberg, recognised that the Government’s legal advice was such that the fears that have been expressed simply would not arise if these regulations were properly interpreted. Monitor, which is to give the guidance that we await on the way in which these regulations are to be interpreted and implemented, has a very important role in that respect and will consult before issuing that guidance. We at Help the Hospices intend to take full advantage of the opportunity which that consultation affords to ensure that Monitor gets the guidance right, removes any ambiguity and ensures that any lingering concerns that we may have do not turn into reality.

It is true that the changes that are taking place in the National Health Service in the way in which we provide health services in this country pose a certain danger to voluntary organisations such as the hospice movement, but not because the Government intend to do any damage to the hospice movement, as was made clear to me and some of my colleagues from Help the Hospices when we had a meeting with the Secretary of State very recently. The danger lies in the law of unintended consequences, so it is right that we should be vigilant to ensure that those unintended consequences do not damage hospices that do such wonderful work and provide such remarkable care to those who are near the end of their life and benefit from the care that hospices provide. I am satisfied that that danger in this context can be averted by sensible and proper guidance from Monitor, and I hope that at the end of this debate the Minister will give the House some assurances about the nature of that guidance which will put to rest any lingering concerns that might exist.