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

Debate between Lord Walton of Detchant and Lord Howard of Lympne

Wednesday 24th April 2013 Lords Chamber

[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.

[Lord Walton of Detchant]

My Lords, I shall speak briefly because I am faced with a major dilemma, not least because of the high regard in which I hold the two principal protagonists speaking on opposite sides of this debate. In this bout of unarmed combat, we have in the red corner the noble Lord, Lord Hunt of King’s Heath, a former chief executive of the National Association of Health Authorities and more recently director of a foundation trust, whose contributions to health matters in this House have been in every way outstanding. In the other corner we have the noble Earl, Lord Howe, who, without a scientific background or training, has demonstrated in opposition and in government a most extraordinary breadth of knowledge, interest and capability, invariably tackling issues relevant to health with courtesy, knowledge and authority.

I have received a veritable torrent of correspondence from organisations and individuals, many of whom I respect and know personally. These organisations include at least three royal colleges and the BMA, of which I have the honour to be a past president. Almost all of these letters have suggested that these regulations would result in compelling commissioners to put all health service activity out to tender—in other words, they would result, as has been suggested, in the ultimate privatisation of the entire National Health Service. Having studied these regulations with great care, I find it exceptionally difficult to see how they could conceivably come to that conclusion.

I am a firm believer in and supporter of the NHS, in which I am proud to have spent the greater part of my professional life. If I felt that that case had been made and if I felt that the regulations would result in privatisation of the NHS, I would unhesitatingly vote for their annulment. But having studied the regulations, I do not believe that that is the case. I have never made any secret of the fact that I believe that a component of contribution by the private sector in the NHS, properly considered, controlled and approved by Monitor, can make a very important contribution to healthcare if it is in the interest of patients. I am satisfied from the debates we had during the passage of the Health and Social Care Act that there is an obligation on any private provider contributing to NHS services to maintain, approve and provide all the facilities that the NHS already provides for education and training of healthcare professionals and contributing to research. I am satisfied that that remains the case. Paragraph 7.5 of the Explanatory Memorandum to these regulations says:

“Regulation 5 provides for commissioners to award a new contract without a competition where there is only one capable provider. There has been no change in policy from the requirements of the Principles and Rules for Cooperation and Competition and the supporting procurement guidance”,

guidance which was established under the previous Labour Government. I find that immensely reassuring. Paragraph 7.6 says:

“The 2012 Act has established Monitor as an independent regulator … with a duty to protect and promote the interests of people who use health care services. Part 3 of the Regulations provides for Monitor to investigate potential breaches of the requirements and to take action to ensure that patients’ interests are protected”.

I could say very much more but I am satisfied, after the most earnest and careful consideration, that these regulations do not produce the prospect of privatisation of the NHS.

I am involved with many medical charities and I learn also that the role of charities can be enhanced. They can under these regulations make more contributions than they already do to the work of the NHS. For these reasons I strongly support the regulations.