Oral Answers to Questions

Andrew George Excerpts

Tuesday 10th January 2012 Commons Chamber

[Mr Speaker]

Order. I am grateful to the Secretary of State.

[Andrew George (St Ives) (LD)]

When the Government introduced the Health and Social Care Bill a year ago, they did so with the claim that the NHS fails in comparison with its European counterparts with regard to patient outcomes. Now we know that that is not the case, will the Government withdraw the Bill?

[Mr Lansley]

I do not agree with that characterisation of why we instituted the Health and Social Care Bill or of the current situation. For example, the OECD published in October its latest assessment of health in a number of countries. In too many respects—for example, in relation to serious respiratory disease—we have very poor outcomes relative to other countries. What we are setting out to do in any case is to deliver continuously improving outcomes and to get among the best in the world. In too many respects we are not yet among the best in the world.

Hinchingbrooke Hospital

Andrew George Excerpts

Thursday 10th November 2011 Commons Chamber

[Mr Burns]

I can assure the hon. Gentleman, because of the way in which the agreements have been framed, that there is an incentive and a pressure on Circle to seek to deliver on reducing and—we hope—eliminating over the 10 years the £39 million historical deficit. On the question of who has what size of a deficit, I must tell him that my concern is to remove that shackle from the neck of Hinchingbrooke hospital.

[Andrew George (St Ives) (LD)]

Notwithstanding the inconsistency of the Opposition’s position, will the Minister clarify whether this marks clearly the termination of public NHS trusts as preferred providers of public NHS services?

[Mr Burns]

It was all going so well up until now, Mr Speaker. The hon. Gentleman, who has shown a keen interest in the progress of the Health and Social Care Bill, will know that we are concentrating on any willing provider—based on quality care, not price—rather than preferred bidder.

NHS Care of Older People

Andrew George Excerpts

Thursday 27th October 2011 Westminster Hall

[Margot James (Stourbridge) (Con)]

It is a pleasure to serve under your chairmanship this afternoon, Mr Betts. I thank the Backbench Business Committee for allowing us to have the debate this afternoon, and I am grateful to colleagues on both sides of the divide for supporting it. I look forward to hearing the views of other people who have a great interest in the subject.

We are here because of troubling reports about the care of older people in the NHS. I was prompted to confine our debate to the NHS by the report from the Care Quality Commission two weeks ago, which studied 100 NHS hospitals. The report was by no means an isolated study; it came on the heels of the ombudsman’s report in February and Age UK’s “Care in Crisis” report in May.

That we have a worrying problem is beyond doubt, but I hope to bring a balanced view to the debate. It is important to note that even when reports give cause for serious concern, there are significantly more examples of good and acceptable care than there are of bad. Indeed, the ombudsman’s report stated that the overwhelming majority of patients say they receive good care. I will return to the balanced view that I promised, but first I will outline the concerns raised by the latest findings of the CQC.

The Secretary of State commissioned the CQC to undertake a series of unannounced inspections in response to the ombudsman’s report. The inspections focused on outcomes, interviews with patients and staff, and observation on the wards. Two outcomes were measured: respecting and involving people who use services, which includes care, dignity and respect for privacy, and meeting nutritional needs. Forty-five of the 100 hospitals met both standards in full; 35 met both standards but needed some improvement, and 20 were not even delivering care that met minimum legal standards. Of those 20, Sandwell General hospital and the Alexandra hospital in Worcestershire—both quite near my own constituency —were found to be putting patients at unacceptable risk of harm.

If we look in more detail, we see that 60 of the hospitals were found to be meeting a good standard in respecting the dignity and privacy of patients on both the wards observed by the CQC. Staff behaved in a way that respected patients; they were positive, sensitive and respectful; they involved patients in decision making and explained treatment options properly. Where there were problems on this measure in the other 40 hospitals surveyed, not one of the hospitals was found to be failing on both the wards observed. It is noteworthy that the report found a large degree of variation in practice, and I will return to what I think that says about management and leadership later.

On the nutrition outcome measure, 17 hospitals were failing to reach an acceptable standard. Patients in need of assistance at mealtimes were not getting help; food was placed out of reach; there was no monitoring of whether patients had eaten their meal and there were constant interruptions during mealtimes. For example, a clinical round would suddenly start during lunchtime. Age UK’s report, “Still Hungry to Be Heard”, found that 157,000 people left hospital malnourished in 2008, and that the figure had increased to 185,000 in 2009. Astonishingly, 239 patients died from malnutrition in 2007.

New research published last month found that across the NHS, 9 million meals are returned uneaten per year at a cost of £22 million. One of the problems is whether we can serve three appetising meals of decent nutritional value for less than £5 per patient, which is what my own local hospital budgets for. I would say that we cannot.

As I see it from the two reports, when the scale of the problem is considered across the entire older population who are being cared for in our hospitals, it is not as great as is often reported by the media in the immediate aftermath of yet another report. However, for the older patient on the end of the worst care, it amounts to cruelty and neglect by staff.

[Andrew George (St Ives) (LD)]

My hon. Friend makes a very good case. On the key findings of the CQC report, which the media seem to report as a failure of nursing when the bulk of them are really issues of care, will she also cover the issue of the resources that appear to be going into hospital wards, particularly with the increasing acuity and turnaround of patients, and nursing and care staff to patient ratios, which appear to be on the edge in many cases?

[Margot James]

I thank my hon. Friend for making a very good point. I will return to the resourcing issue. I do not have statistics on the staff to patient ratio, but it is noticeable that it is much better in paediatric wards than in wards with large numbers of older people. Perhaps we can learn from that.

I was talking about cruelty and neglect. Staff are paid to care in institutions that are for the most part monopoly public services; the patient has no choice but to be there. In Age UK’s 2010 research, 21% of patients said they were not always treated with dignity and respect, and there has been no improvement in that figure since 2002. The figure is fairly consistent with the CQC findings and it seems to be consistent with other reports. It leads me to think that the problem we must address is twofold: first, the overall figure of one in five being essentially ignored—or worse—in our hospitals is simply too high, and secondly—the worst aspect—nothing ever changes that figure. Despite all the reports and information, nothing actually changes that figure.

Care is failing one in five of our older patients two or three times a year. The new research confirms that failure, but no effective action is taken to remedy it or to reduce the problem. I hope that as a result of our collective ongoing efforts, we will finally make a significant impact on the problem. It is likely that one of the reasons for the inaction that has persisted for a decade or more has its roots in a wrong or partial diagnosis of the causes of the problem, so I will turn to the various causes that have been advanced by research and informed commentators on this state of affairs.

The causes that I have read about can be grouped under the following headings: leadership, management, resourcing, training and what I loosely call societal. The leadership of individual hospitals such as Stafford—to take the worst example—sets out daily through a series of explicit and subliminal messaging what it is important for staff to deliver in that institution. At most, the focus from the top will resonate further down the line in only one or two areas. Staff know, either consciously or unconsciously, that if they deliver on one or two variables, they will not be seriously picked up for partial or non-delivery elsewhere. That is the same in any large organisation. Often, the overriding concern at the top in NHS hospitals is about meeting financial targets, just as it was in Stafford. In other cases, rigidly applied clinical outcomes might bear little relation to how a patient is treated by staff before and after their care or surgery.

Leadership does not come only from the chief executive and key board members. I served on the board of an NHS trust that was answerable, in a mechanistic, command-and-control way, to the Department of Health, which in turn was accountable to the Secretary of State—I am going back 10 or 12 years. Political pressures on a Secretary of State are principally financial, but they also concern global outcomes in politically sensitive areas such as cancer. The day-to-day treatment of patients is often delegated to a regulatory quango, but irrespective of the party in power, the Secretary of State will survive the occasional embarrassment and discomfort caused by yet another report. That explains the extraordinary situation whereby the care problems at the James Paget University hospital in East Anglia were serious enough to warrant a warning notice from the Care Quality Commission, but nurse training at the same hospital was well rated by the Nursing and Midwifery Council.

Although overall management and culture is set by the board, the main divide between good and bad management depends on the effective deployment of resources, the motivation and discipline of staff, and the systems for gathering customer—or patient—intelligence. The CQC noted that in some wards, levels of under-resourcing made poor care more likely—the point raised by my hon. Friend the Member for St Ives (Andrew George). Patients commented to the CQC about how hard pressed the nurses seemed, and that was confirmed by comments about the report by nurses writing on blogs. Even allowing for a certain amount of, “They would say that wouldn’t they?”, some of the remarks seemed heartfelt and genuine.

Interestingly, however, none of the hospitals where care was found to be poor was found wanting in all the wards inspected. Unacceptable levels of care were seen on well-resourced wards, and excellent care was found on wards that were understaffed. That indicates that the issue has more to do with ward leadership and the personalities and values of nurses in leadership roles than with the overall budget at the disposal of hospitals where problems were encountered.

[Andrew George]

I am not sure that I draw the same conclusion as my hon. Friend. She suggests that resourcing is not particularly relevant when considering the quality of care achieved, but surely she accepts that the situation is far better, and high levels of care more likely, when resources are adequate.

[Margot James]

I agree that care is more likely to be good when resources are adequate, but poor care has been observed on wards that the CQC regarded as well resourced. I do not draw a neat and fast conclusion, and having worked in business for many years I accept that resourcing is important. It is difficult to generalise from the available research, but I take my hon. Friend’s point.

On nurse training, the CQC found that half of hospitals were ailing in the areas of privacy and dignity; staff had little training in matters of privacy, dignity, rehabilitation and dementia. Training, and the lack thereof, is a symptom of the growing and unregulated use of health care assistants. In a report out today, the Royal College of Nursing states that in some parts of the country, 40% of staff on a ward are health care assistants. I will return to that point.

Another important issue is the general training of nurses. Consensus seems to suggest that although Project 2000 brought benefits to nursing status and career paths, the effect on care has been less positive. Earlier this year, Camilla Cavendish, a journalist from The Times, undertook extensive research across the country. Her observations suggest that Project 2000, which moved training from hospitals to universities and gave it degree status, has led to nurses spending too little time on wards during their training, and they are under-prepared to deal with patients when they graduate. Project 2000 has also led to gaps on wards, which have been filled by health care assistants. Such assistants are supposed to be supervised by nurses, but although I have no evidence either way, I wonder whether nurses have the training for such supervision.

Patients often think that health care assistants are nurses, and it is not always easy to distinguish the two posts. Health care assistants, however, have almost no training and perform non-medical tasks such as providing help with feeding and washing. I am sure there is a degree of mission creep into areas that require some form of training, and I shall return to that point. Perhaps it is no wonder that many nurses feel that certain aspects of caring are menial work.

[Andrew George]

My hon. Friend suggests that nurses see caring as menial, but that is not an observation I would make. I had the opportunity to shadow nurses in four wards, and they told me that they wished they had more time to perform a caring role in addition to their clinical duties. Such a role would fulfil the observational function that nurses are trained to perform in order to continually assess a patient and review their diagnosis. That nurses believe themselves to be above a caring function is not a conclusion that I would draw, and I believe that it besmirches the professional standing and pride felt by a lot of nurses.

[Margot James]

My hon. Friend makes some good points. Camilla Cavendish visited hospitals across the country as part of her research and spoke to many patients and nurses, and the view I have mentioned was expressed not only by patients but by nurses. I am sure that such cases are in a minority, and I certainly do not intend to besmirch the good reputation of the majority of nurses. However, the research leads me to believe that a minority of nurses either do not have time for care or feel that although care is not beneath them, it should be carried out by staff at a different level. That is a legitimate view and has been expressed in a variety of nursing journals and other forms of media by retired nurses who have visited hospitals. My hon. Friend should not dismiss that element of concern, and I emphatically do not wish to besmirch the reputation of our many good nurses. However, when we read in the CQC report about the problems engendered by the very poor care that some patients receive, we realise that we cannot afford to dismiss any of the conclusions reached by people who have done a lot of research.

I want to move on to some societal observations. The ever-increasing use of scientific and technological advances brings many benefits, but it also creates a work environment that requires nurses to concentrate on aspects of treatment and care that isolate them from the patients whom they are serving. The workplace in general outside hospitals is becoming more mobile. People connect with one another far more via devices of various sorts. That presents a risk to the caring professions that needs managing.

Then there is the issue of the pool of talent from which nurses and other caregivers are drawn. This summer saw an explosion of violence, avarice and selfishness on our streets on a major scale. Although work is ongoing to identify the cause of that phenomenon, it is clear to many of us that the fault lines in our social fabric are every bit as wide and deep as suggested by the research undertaken by my right hon. Friend the Secretary of State for Work and Pensions, before he came into government. These incidents affect all walks of life. Much more could be said on that point, but I do not intend to elaborate on it now. For the purposes of this debate, the implication is that nurses are as much a reflection of modern Britain, with its drawbacks—a society in which a significant minority seem to be more aware of their rights than their responsibilities—as well as its strengths.

Likewise, patients and their families reflect society. Melanie Reid, a columnist for The Times, spent a year in a spinal injuries unit following a tragic accident. She wrote an excellent piece on the nursing debate three weeks ago. She said:

“If you want to change nursing, you have to change society. You also have to change the patients. Today’s sick are…not deferential sufferers in silence. They and their relatives can be aggressive and unreasonable.

Everyone’s a professional complainer. During my spell in hospital, I saw some patients whom, had I been forced to cope with their constant demands, I would have smothered at dawn. Instead, the staff treated these people with civility and good humour.”

I shall turn now to some conclusions and recommendations. I shall conclude with what I think needs to change and I hope that the list of areas to which I refer will provide a platform for further consideration by the Government. I note that the Government are already making positive changes in some of the areas, and that is welcome. My priorities for change would centre on the importance of food and nutrition in hospitals and the standards in that respect; the accountability of boards and chief executives for the care of patients; resource allocation; the inspection regime; hospital complaints procedures; and nurse and health care assistant training.

--- Later in debate ---

[Margot James]

I thank the hon. Lady for her excellent point. In an ideal world, I would strongly agree with her. I agree that what she has suggested is to be desired. The trouble with relying on that is that the throughput of patients through wards these days is quite fast, the rostering system for nurses is very complicated and the continuity of care is certainly not as good as it used to be. Many nurses work intensively for a week and then have a substantial amount of time not working. Therefore the personal relationship, which is so desirable, has been compromised to the extent that we can no longer rely on it to ensure that patients’ nutritional needs are met. That is why I believe that the red tray system is useful. However, I am very concerned that people could easily think, “Oh well, that sorts the problem out,” and not feel that they need to relate to the patient in the way that the hon. Lady suggests.

I come now to accountability. I realise that this is not something that the Government can mandate, but chief executives should come on to the wards regularly—every day that they are in work. Nurses used to be accountable to a matron, who would turn up unannounced to check on standards. We must replicate that discipline again, and I recommend starting at the top.

Managers need to ensure that budgets are used wisely to support front-line staff and that front-line staff are not distracted by other, non-patient-care “priorities”. I looked at nurse blogs when I was preparing my speech and I sympathised with one nurse who said that nurses are

“at the beck and call of so many departments who wish to give work away and have no qualms in ‘getting the nurses to do it’. Loan stores, training, HR, to mention a few who seem to have forgotten that their role is to support us—not the other way around.”

I have sympathy with busy nurses who are pulled in all directions.

[Andrew George]

I am grateful to my hon. Friend for giving way to me a fourth time, which shows how patient she is with me. Quite apart from falling into the trap of conflating care with nursing in some of her remarks—she did make the point about needing to ensure that there is a clear distinction between care assistants and nurses—does she not also agree that in terms of the management on wards, a lot of nursing time is taken away from the patient interface as a result of the enormous amount of bureaucracy and paperwork required and the pressure that many nurses come under from bed managers, who appear to overrule them when it comes to determining when a patient should be discharged or admitted to a ward?

[Margot James]

I thank my hon. Friend for his observation, and I certainly agreed with the first point he made. I shall conclude in a minute as I am aware that many Members wish to speak.

The CQC should be resourced to ensure that its inspections include weekend visits. All the observations it makes in its recently published report were based on visits it paid during the week—for cost reasons, I imagine—but I was delighted to hear the Secretary of State announce yesterday that there will be more inspections. I hope, however, that the Minister will discuss with the CQC the possibility of visits being paid at weekends, when—I hear—care can sometimes deteriorate rapidly.

Some complaints are very serious, and I am not commenting on serious medical negligence, but with many complaints the system comes over as a sledgehammer to crack a nut. A patient or family member should be able to make an informal, non-legalistic and reasonable complaint and receive a sensitive hearing from a senior member of staff, rather than be instantly given a form that starts a three-week process of churning and often ends in Members’ surgeries. I ask the Minister to discuss with the Justice Department how we enable that but avoid opening the hospital to legal challenge, which is one of the motivators to the heavy-handed system we have at present.

We must be able to distinguish between the training needs of nurses and health care assistants.

--- Later in debate ---

[Barbara Keeley]

Indeed. I do not distance myself in any way from the excellent point the hon. Member for Stourbridge made in opening the debate: this is about leadership, management, training and accountability, all of which failed in the case I have outlined.

[Andrew George]

The hon. Lady is making a strong case. On the point about whistleblowing, or protected disclosure, her own research may have shown that when a nurse, for example, suggests to senior management that there is a resource problem on a ward, that does not necessarily enhance their likelihood of improving their job prospects in the hospital. Often, they are told, “Other members of staff seem to manage, so why don’t you?” Does the hon. Lady agree that we need to look at how whistleblowing can be done safely?

[Mr Clive Betts (in the Chair)]

Order. A lot of people clearly want to speak, and I do not want to stop or discourage interventions, but if they are made could they be brief and to the point so that we can keep things flowing?

National Health Service

Andrew George Excerpts

Wednesday 26th October 2011 Commons Chamber

[Grahame M. Morris]

rose—

[Andrew George (St Ives) (LD)]

rose—

[Andy Burnham]

I will give way to the hon. Gentleman and then to my hon. Friend.

--- Later in debate ---

[Andrew George]

I accept that the Health and Social Care Bill is the longest and most incoherent suicide note in NHS history. Indeed, I am robust on this issue: I have voted against the Bill and will continue to take that view. However, considering that the right hon. Gentleman was involved when preferential arrangements were provided for private sector providers coming into the NHS, is this debate not an opportunity for him to acknowledge that at the Dispatch Box and apologise to the House for what was a rather ridiculous and one-sided policy?

[Andy Burnham]

Let me first acknowledge the hon. Gentleman’s courage in standing up and voting against the Health and Social Care Bill. I just wish that more of his Liberal Democrat colleagues had similar conviction and principle, and could stand up to the Government on a Bill that he knows—and which, in their heart of hearts, many of them know—will seriously damage the NHS.

The hon. Gentleman also asked me about the introduction of private sector capacity. I will not apologise for that, because that additional capacity was brought in to bring down NHS waiting lists, something that benefited his constituents. By bringing in that extra capacity we brought down NHS waiting lists to an all-time low and delivered the 18-week target. I am not going to apologise for that. The reason the NHS commands such strong support in the country today is that people’s experience of it improved in those years. I mentioned the preferred provider policy a moment ago. I believe that the private sector has a role to play in delivering world-class care to patients, and I am happy to put that on record.

Health and Social Care (Re-committed) Bill

Andrew George Excerpts

Wednesday 7th September 2011 Commons Chamber

[Paul Burstow]

There is a clear duty on the boards to act, too, and I ask the hon. Lady why the Labour Government, in 13 years, chose not to do anything about that matter. There was never a legal duty of any sort in the past and we now have clear duties on all the bodies and on the Secretary of State. Of course, I shall come on to talk about the mandate, which has a role to play, too.

[Andrew George (St Ives) (LD)]

I merely wish to seek clarity from my hon. Friend on some of the briefings that his Department has been putting out about the duty to provide, to which he has referred already. Those briefings indicate that there was somehow no provision in the National Health Service Act 1946 for a duty on the Secretary of State to provide. I wanted my hon. Friend to acknowledge that section 1(1) states

“and for that purpose to provide or secure the effective provision of services in accordance with the following provisions of this Act.”

Equally, the National Health Service Act 1977 contains the same reference to the

“purpose to provide or secure”.

The requirement to provide or secure is repeated throughout all the Health Acts.

[Paul Burstow]

I am grateful to my hon. Friend for that intervention. If he listens carefully to what I am saying, he will hear that I am developing an argument that will go towards answering that question. Rather than trying to answer it in a very small way now, I would rather answer it in a comprehensive way through reference to what I had planned to say to the House.

As I was saying, hon. Members should ask themselves how the Secretary of State would be able to wash their hands of the NHS while simultaneously being legally required to deliver on all the duties I have just outlined. Crucially, the Secretary of State also retains the duty to promote a comprehensive health service, which dates from the Act that founded the NHS in 1946 and has been unchanged by this Bill. The Secretary of State will also have the duty to secure that services are provided for that comprehensive health service and will have failed in that duty if they are not.

The Secretary of State also has the ability—the obligation, in fact—to set goals and priorities for the NHS through the mandate. That will set out what the Secretary of State wants the NHS to deliver, which will be updated every year. It will be widely consulted on and Parliament will scrutinise it, for the first time ever giving Parliament a detailed say in what the NHS is tasked to deliver.

The Secretary of State has further powers in addition to the mandate to impose standing rules by which the NHS commissioning board and the clinical commissioning groups must operate, which will be subject to scrutiny and control by Parliament—a power Parliament does not currently have. What is changing, however, is the Secretary of State’s relationship with the NHS in terms of the role of Ministers in the commissioning and provision of services to the NHS. The Government believe that it should not be the job of Ministers to provide directly or commission NHS services, either. It should be the role of front-line professionals, who should have the freedom to focus on driving up quality of care, free from interference by Ministers in operational decisions—something that all parties in this House have said that they want to see.

We understand that all Government legislation has a responsibility to foresee the unforeseeable, to ask questions about the worst-case scenario and to ensure that the answers stand up to scrutiny. That is why this Bill contains a number of back-stop provisions to make it absolutely certain that any future Secretary of State will not be able to turn a blind eye to failings of service provision, so we have ensured that the Secretary of State has the power to step in if the board, or Monitor, is failing to deliver on its duties, including any duties imposed on the board through the mandate.

Finally, in the event of a significant emergency such as a pandemic, the Secretary of State will have powers to direct any commissioner or provider of NHS services.

--- Later in debate ---

There seems to be some doubt in hon. Members’ minds about whether other parts of the Bill could in some way prejudice those responsibilities, in particular because of the establishment of autonomous bodies that act under their own legal powers and mandate rather than under the direction of the Secretary of State. For example, some have claimed that the Secretary of State might be able to hide behind clause 4 and take a hands-off approach even if services were in crisis, but that certainly is not our intention. We are therefore willing to listen to the concerns that have been raised and, if necessary, to offer clarification or make amendments to put beyond legal doubt the fact that the Secretary of State remains responsible and accountable for the comprehensive health service that we all want to see.

[Andrew George]

rose—

[Simon Hughes]

rose—

[Paul Burstow]

I will give way to my right hon. Friend the Member for Bermondsey and Old Southwark and then I shall make some progress because this is a very big group of amendments.

[Andrew George]

It is my amendment.

[Simon Hughes]

I am very grateful and I will not keep the Minister long. I have listened very carefully, as colleagues will have done, to my hon. Friend’s extremely reassuring comments. If he and the Secretary of State are committed to working on some wording that will alleviate concerns at the beginning of the Bill, I know that my colleagues and I will be very happy to work with him.

--- Later in debate ---

[Andrew George]

I am grateful to my hon. Friend for giving way and for his appreciation of the efforts I am making. I, too, appreciate his comments on the Government’s intentions. It has not been my argument at any stage to suggest that the Government’s intentions are dishonourable. He has mentioned the possibility of tabling amendments, but may I have some reassurance that this is a genuine and serious issue—that we need to have policy, but also, clearly, the restraint of the Secretary of State at the same time?

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. We must have shorter interventions, as we have a lot to get through. Hon. Members should not take advantage of the Minister’s generosity in giving way.

--- Later in debate ---

[Paul Burstow]

I am conscious of the time, and the fact that other hon. Members want to move and speak to other amendments. If the hon. Gentleman will forgive me, I will make a bit more progress.

[Andrew George]

Will the Minister give way?

[Paul Burstow]

I am talking about my hon. Friend’s amendment, so I will, of course, give way.

[Andrew George]

I am grateful to the Minister for giving way to me, as he is referring to my amendment. I think that I understand what the Government are trying to achieve here, but in order to assess properly what quality and outcomes are, that assessment must not be pre-empted. The purpose of my amendment is to ensure that good quality and outcomes are not rewarded too early after treatment, before people can make a proper assessment and know the long-term impact of a new procedure.

[Paul Burstow]

My hon. Friend makes a fair point—one that, I think, we would agree with entirely. That is why the Government published, for the first time ever, an outcomes framework for the NHS that is all about considering how clinical care leads to the sort of longer-term outcomes that he seeks, so I hope that that addresses his comments. That will be built into the way in which we go forward with drafting the regulations to reinforce that approach.

On the stability of services, my hon. Friend has tabled amendments 1203 and 1204 and new clause 18, which link very closely to Opposition amendments 42 and 43 on the interdependency of services. My right hon. Friend the Secretary of State spoke to two similar amendments that my hon. Friend moved yesterday. We agree with hon. Members about the need to secure continued access to services for patients. We have introduced substantial new proposals to improve on our previous plans. However, I repeat what my right hon. Friend said yesterday: this is not about securing access to the same services in perpetuity. That has never been the case, and it should not be the case. Services evolve, and we must allow new providers—whether NHS, social enterprise or private sector—to come in where they can deliver high-quality care for patients.

I shall turn now to excessive prescription and a number of issues that arise from several amendments, which would tilt the balance in a way that would turn the system much more into a command-and-control one than many hon. Members have argued that we should have for many a year. Amendment 1218 would break a fundamental principle at the heart of our proposals: that the membership of CCGs should consist solely of GPs, and that we should encourage, rather than prescribe, how they involve other professionals.

Amendments 1237 and 1238 would remove the Secretary of State’s power to make transfer schemes for property, staff, rights and liabilities, thus making it less flexible to make transfers from, for example, a PCT to a CCG. I am well aware that many people feel that the ability to transfer staff in that way is an essential part of managing a smooth transition. Therefore, to deny the Secretary of State the ability to do that seems very odd. Amendment 1167 is unnecessary for the same reason. CCGs are different entities from PCTs, with different structures, duties and functions. It does not make sense to set a limit on the number of CCGs by comparison with PCTs.

Opposition amendment 5 would delete clause 10, but Opposition new clause 14 would reinstate it, so it is a sort of hokey-cokey set of proposals, whereby a provision would be taken out and then put back in again. As the Bill includes a power to make regulations to take account of people in specific circumstances, new clause 14 and amendment 1178, which is consequential on it, are unnecessary.

New clause 11 would require the NHS commissioning board to limit the administration spend of CCGs individually and collectively by comparison to 2009-10. In other words, it would set an arbitrary starting line and effectively lock the budgets that way. An absurd shackling of the NHS commissioning board or CCGs in that way belies common sense and sound financial governance.

Amendment 1206 runs the inherent risks, as discussed in Committee, of trying to prescribe the setting allocations in legislation. I understand the concern expressed by my hon. Friend the Member for St Ives (Andrew George), and the White Paper made it clear that we want to ensure that access in every part of the country is fair and equitable. We will want to ensure that that is achieved, and I am happy to continue to discuss those issues with my hon. Friends.

Amendment 1167 is unnecessary for the same reason. CCGs are different entities from PCTs, with different structures, duties and functions, and it would not make sense to set limits in such a way. The additional statutory provisions set out in new clause 10 are also unnecessary. Imposition of a minimum waiting time would not take account of the clinical needs of individual patients, and it is for clinicians to plan care on the basis of the clinical needs of patients and their right to access the best service.

We are considering how best to prevent PCTs from imposing clinically inappropriate blanket minimum waiting times, but there are already sufficient powers in the Bill to address the issue when it comes to CCGs.

Amendment 41 is also about consultation and transparency. We have already changed the Bill to enhance the duty on CCGs to involve and consult the public, but the commissioners must have sufficient flexibility to be proportionate in how they involve patients and service users. CCGs will not be able to use that flexibility to underplay their duty to involve the public.

I want to discuss a section of the Bill that I know concerns some of my hon. Friends and which perhaps was not much discussed in Committee—public health. A number of amendments are relevant here. New clause 23 would create the role of a chief environmental health officer. The chief medical officer, however, is already able to provide the very advice that the new clause would establish a new role to provide. The chief medical officer can provide independent advice on environmental health issues. At a time of financial stringency, the new clause would create a layer of wasteful bureaucracy.

Amendments 1253 to 1260 relate to the role of directors of public health. Our position is that they should be employed by the local authority to support local government in the new role that the Bill confers on local authorities in respect of public health.

--- Later in debate ---

[Owen Smith]

I am happy—we are happy—with the Secretary of State being properly, publicly accountable through this House and having a legal duty placed on him to secure and provide politically accountable health services in this country. We are deeply concerned that the changes envisaged in the Bill, which radically alter the nature of the NHS, will not be able to be held to account through the Secretary of State in future Parliaments. That is our profound concern about the line of direct political accountability that so many of the Minister’s hon. Friends share, which is why they have tabled amendments to that effect and why they have repeatedly raised these concerns in the Bill Committee and elsewhere. The Minister does not have those concerns, but many other Liberal Democrats do.

[Andrew George]

I have to say that I entirely respect my hon. Friend the Minister. The hon. Gentleman’s point echoes what I said earlier in contradicting the Department of Health’s claim that the original 1946 Act did not have a requirement to provide or secure services. My quote provided evidence that that requirement has always been there. The Department also claims that because of the changes it is no longer legally acceptable for the Secretary of State to have that responsibility, but that issue has not been properly addressed. Would the hon. Gentleman care to deal with the point that it may no longer be legally acceptable for the Secretary of State to have that duty?

[Owen Smith]

As I said earlier, or rather as somebody said on my behalf, I am not a lawyer—I am a historian. As a historian, I agree with the hon. Gentleman that the 1946 Act does indeed say:

“provide or secure the effective provision of services”.

He was entirely right in that, and I could not understand the response from the Minister.

The key thing is that eight months, two Bills and 1,500 amendments later, we are still debating clause 1 and its legal interpretation. That is testament to just how badly botched this Bill has been and just how alarming it is for many people—patients and NHS staff—that we, the legislature, do not understand, or have divided views about, our understanding of the critical responsibility of the Secretary of State.

--- Later in debate ---

A duty to co-operate could make a significant difference. The public health work force directly controlled by local authorities will be carrying out the work. I urge the Secretary of State to consider that. There is a precedent in respect of children’s safeguarding and in respect of the emergency services. Although I object to many aspects of the Bill and will not support it, if it goes through it should at least contain the safeguard for public health that a duty to co-operate would provide.

[Andrew George]

It is a great pleasure to follow the hon. Member for Stoke-on-Trent North (Joan Walley), who addressed the issue of political accountability in a considered way. I shall return to that and relate it to a number of amendments in my name and those of some of my hon. Friends. I shall refer to a number of amendments that the Minister of State, my hon. Friend the Member for Sutton and Cheam (Paul Burstow) covered in his opening remarks and dealt with in a fair and balanced manner, although not entirely to my satisfaction in every case. I shall also raise further questions.

I have enormous respect for all that my hon. Friend has done. His contribution to the debate on social care is second to none. That expertise is especially beneficial to the Government at present and some important advances have been made, for which we are all grateful. I acknowledge that he approaches all aspects of his work with the best of intentions, and I do not question those. The amendments that I have tabled indicate that I believe we may need to reconsider some of these issues. I should also mention at this stage that I may seek to push one or two of them to a vote.

On Second Reading, I made a speech that was critical of the Bill and refused to support the Government by abstaining at that stage, and of course the Bill has gone through a number of significant changes since then and concessions have been made. I have been criticised by some for making that speech and refusing to support the Government, but I feel vindicated as a result of the pause and the listening exercise. I might be criticised and accused of disloyalty, but that is how Back Benchers exercise our role of holding the Government to account. It is reasonable for us to use our powers to bring forward amendments and, in so doing, probe the Government and ask them to be accountable for the policies that they are bringing forward. I hope that in the weeks and months ahead, I will be vindicated for having done so, but I do not necessarily expect that acknowledgment to be provided now.

I was relatively content with the original coalition agreement. I am no great defender of primary care trusts, but I think that using the existing institutional infrastructure, grafting in accountability to the patients and communities that the commissioning bodies will serve and ensuring clinician involvement in those commissioning decisions, would strike entirely the right balance. That would provide a way of going forward without scuppering, dismantling or exploding the whole system in the way the Bill is doing.

There was no mention in the coalition agreement of changing the duties of the Secretary of State, and I have read a number of legal opinions on that issue. I also believe, as I have indicated in several interventions so far, that some of us have been misled on that point. Some of the legal advice that I have been given by colleagues suggests that the Secretary of State in fact never had a duty to provide in the 1946 Act. That is fundamentally wrong. Perhaps I will discuss this with the Minister after the debate and show him the documents that I have been given and some of the comments that have been made. As some of my colleagues who were there at the time and heard the advice will know—[Interruption.] I hasten to add that they were not there in 1946—I know that I have aged in my time in Parliament, but I cannot recollect that time. My colleagues know that we have been briefed that there was never any duty to provide in the 1946 Act, but there is evidence—I do not need to give the quote a third time—that there was clearly a requirement in the 1946 Act to provide and secure effective provision. That requirement has always been there in successive health Acts in this country. I want to relate that to a point the hon. Member for Pontypridd (Owen Smith) made in a more tribal manner.

[Paul Burstow]

May I just make it clear that I do not think that I or any other Minister at any point, either at the Dispatch Box or in other discussions, ever suggested that the 1946 Act or any subsequent Act did not have the duty to provide? What we have said is that the duty to provide has progressively, particularly over the past 20 to 30 years, become a duty that is not exercised. It has been delegated and is increasingly exercised instead by separate bodies, such as NHS trusts and foundation trusts, using their own independent power to provide services.

[Andrew George]

Yes, and my new clause 16 proposes to address that issue through an opportunity for the Secretary of State to intervene as necessary.

The Secretary of State in his intervention on the hon. Member for Pontypridd made it clear that in any case Secretaries of State tend not to micro-manage by intervening or by providing on every whip and flip, and there is no suggestion of that, but as a backstop we require the guarantee that, if all else fails and the whole system does not provide what we believe needs to be put in place to provide for a comprehensive health service, the Secretary of State will be there. There would be no harm in putting that word back in the Bill in one form or another. I do not understand the obstinacy, and in my view there is no legal impediment to the Government doing so.

[Stephen Lloyd (Eastbourne) (LD)]

Does my hon. Friend agree that, because this is such a totemic issue, the key reason behind the proposed change in the wording is totally to reassure the public that, come what may, and even if delegated powers mean that the Secretary of State has not been involved for a number of years, the buck will stop with the Secretary of State?

[Andrew George]

I am grateful to my hon. Friend. He has referred to the issue as being totemic, and although I do not want to detain the House for too long because many others have referred to it, he is absolutely right. Now that it has been raised in such a manner, unless there are good legal reasons not to insert it in the Bill, it should be.

On the comments of the hon. Member for Pontypridd, I make a further point. We are talking about major changes, and the issue is not only totemic but contextual, because, in the context of a major—in fact, the most major—reorganisation of the health service, the reassurance of that backstop being in place would be all the more important.

I do not questions the intentions of the Secretary of State, for whom I have tremendous respect, but, having opposed the creation of the health service in the first place, the Conservatives have a problem, because the context is one of a major change, and whether we like it or not the assumption is that, if the Secretary of State is a Conservative, the hurdle will have to be set higher to reassure the nation that there is no untoward intention behind the legislation.

[Simon Hughes]

My hon. Friend knows that I share his views, and the hon. Member for Stoke-on-Trent North (Joan Walley) made the point that this is both a political and a legal debate. First, there is certainly a political argument for keeping the definition the same as it has been throughout the history of the NHS, which was created in concert by a Liberal and implemented by Labour. Secondly, there is a legal justification for doing so, because there are specific powers to provide, and therefore there is a generic logic in stating that, as part of the initial definition, there is provision for and security of health services. I am therefore sure that my hon. Friend will be on a winning wicket in the end.

[Andrew George]

I hope so, but sporting my cricketing injury I hope that that analogy does not apply.

[Nick Smith (Blaenau Gwent) (Lab)]

I congratulate the hon. Gentleman on this point and think that he should absolutely stick to his guns. In my constituency, the birthplace of the national health service, 40 people have written to me about the issue in just the past few days, so it is important that he sticks to his guns and we get the message over to the Secretary of State this evening.

[Andrew George]

I am grateful to the hon. Gentleman, but I should also say that the Minister acknowledged in his opening remarks that there was an issue that needed further work and clarification. I entirely welcomed that statement and will be happy to be involved in any discussions that might advance the point. However, in spite of the discussions and debates so far, the issue remains unresolved. It might be resolved in another place, but until then it is important to make the totemic point that the matter is of such significant concern that it is worth our while pressing the matter further.

--- Later in debate ---

[Paul Burstow]

I draw my hon. Friend’s attention to the Department of Health’s website. Yesterday we published a detailed response to both 38 Degrees opinions. It obviously draws on the legal advice given to Ministers and provides a full exposition of why we believe the points that I set out in my opening remarks.

[Andrew George]

I am grateful to my hon. Friend for that. During his remarks, he said that he believed that there was a risk that the Secretary of State might be drawn into micro-managing; that was one of his primary arguments. All I can say is that if there were a risk of the Secretary of State micro-managing, the Secretary of State could decide to do or not to do it. Simply removing the power comes back to my point about at least making sure that the Secretary of State has the ability to direct where appropriate. If the Secretary of State had that duty to provide, it would follow that he must have the powers to intervene as I have described.

[Paul Burstow]

My hon. Friend is making some important points, which give me the chance to underscore the important points that I have made. The Bill retains for the Secretary of State the capacity to intervene and exercise the functions of all the bodies established by it, and—in extremis, as a last resort—to make sure that services are provided. It is clear that that capacity has remained, not least in regard to the Secretary of State’s ability to establish special health authorities.

My hon. Friend is asking for back-stops, and back-stops have to be real and have effect. That is why we put them into the Bill as we have, so that the Secretary of State does have, in extremis—in the circumstances that concern my hon. Friend and others—the ability to take the steps necessary to secure and ensure that services are provided to ensure a comprehensive health service.

[Madam Deputy Speaker (Dawn Primarolo)]

Order. May I gently remind the Minister of two things? First, he has to address the whole House. Secondly, it is not a private conversation between him and his hon. Friend, and his interventions are supposed to be brief. A lot of people are waiting to speak.

[Andrew George]

On that basis, Madam Deputy Speaker, I will end that part of the conversation and move on, acknowledging that my hon. Friend has made a point that is worth considering.

Amendment 1224 would restore the duty to provide or secure provision of health services. Although that is seen as the headline proposal, it is consequential on new clauses 16 and 17, hence my intention to draw attention to the likelihood of my seeking to divide the House on those issues.

Amendments 1222 and 1223 seek to establish why the Bill has never provided for the Secretary of State to provide or secure a comprehensive health service rather than promote a comprehensive health service. This is an either/or situation, but I draw attention to the possibility that instead of pressing new clause 16, I may, in discussion with others, seek to divide the House on amendment 1222.

Amendment 1183 would beef up a duty of the Secretary of State—a theme that runs through a number of amendments. The purpose of amendments 1183 and 1194 is to address the conflict between having regard to reducing inequalities and placing above that duty the other duties that apply—for example, on choice. Amendment 1183 seeks to ensure that it is the duty of the Secretary of State, in reducing inequalities, to

“act with a view to”

rather than merely “have regard to”. Otherwise, the responsibility, and the duty, on the Secretary of State is rather weak. That applies to amendment 1194 in the same manner.

New clause 18 would impose a new duty on the CQC, the NHS Commissioning Board and clinical commissioning groups not to undermine existing NHS services in an unplanned way through the operation of competition. Rather than extending my description of this issue, it might be worth referring to the debate that we had yesterday about the regulations surrounding the functions and duties of Monitor, as the same question arises. We have to look at the impact that competition is likely to have on the provision of essential services such as major trauma and accident and emergency, where its existence may destabilise emergency services through the loss of, for example, important underpinning elective services provided by the hospital.

New clause 20 would ban the wholesale outsourcing of commissioning work with regard to clinical commissioning groups. That was demanded in a Liberal Democrat conference motion but has still not been delivered. The commissioning process is a public function, not a private function. The amendment therefore seeks to change schedule 2 in different ways to prevent private entities on clinical commissioning group committees and sub-committees from commissioning and making other decisions. This also applies to amendments 1224, 1245, 1244 and 1249.

The Minister said that the work of the Neurological Alliance is important to preserve. I hope he will recognise that new clause 20 talks only about commissioning work being

“predominantly retained as a function by staff directly employed by the clinical commissioning group.”

There is nothing in the Bill that prevents the bulk of the commissioning work—not the decision, but the work—of a clinical commissioning group from being done by a private company and thus, potentially, in secret. I hope he will accept that under the current wording of schedule 2, private entities will be able to sit on clinical commissioning committees and sub-committees and make commissioning decisions.

Amendments 1184 to 1188 and 1195 would demote choice to a subsidiary duty of commissioners to tackle fair access and inequality of outcomes. They relate to page 17 of the Bill. The priority of choice over inequity and inequality was introduced by the Government after the pause and the NHS Future Forum report as a way of promoting competition in ways other than through the role of Monitor. The amendments would reverse that priority for the NHS commissioning board.

Amendment 1211 provides that clinical commissioning groups should be more coterminous with local authorities than is the case under the Bill. The Minister said that there is no intention that clinical commissioning group boundaries will cross local authority boundaries. However, we all know that district councils do not cross local authority boundaries. In Cornwall, for example, we are likely to move from one PCT to three clinical commissioning groups, which will make the streamlining of the pathways between health and social care a lot more difficult. The purpose of amendment 1211 is to enforce that point.

I am aware of time and I hope that the House will appreciate that I will not explain every aspect of the many other amendments I have tabled. I am aware that there are significant issues that other people wish to raise. I simply emphasise that what the Minister said about health and wellbeing boards being able to refer matters to the Secretary of State is once again something that we have always argued for. Local authorities should of course be given a far greater say in commissioning decisions and in setting the strategy for health services in their area. As a back-stop, it is important that matters can be referred to the Secretary of State. My hon. Friend the Member for Cheltenham (Martin Horwood) has tabled some important amendments in respect of public health, some of which I have supported, and I hope that the Minister will consider them. I apologise for the amount of time I have taken, but I hope that the Minister will address the important issues advanced by the amendments.

[Caroline Lucas (Brighton, Pavilion) (Green)]

I apologise for not being present for the first half hour of this debate. I was in the Environmental Audit Committee, where I had specifically asked for certain witnesses to be invited, and I have not yet worked out how to be in two places at once, although it is on my list.

I will make a few general points about this part of the Bill before turning to a couple of the amendments that are in my name. I echo the many concerns that have been expressed around the Chamber this afternoon. Many of us argue that there is no legal duty on the Government to provide health services. The new hands-off clause limits the Government’s ability to intervene should health care provision be deemed inadequate, because it says that clinical commissioning groups, the new agents of health provision that can include private companies, must be free to exercise powers and duties without “unnecessary burdens”. I am equally concerned that the powers and duties of a commissioning group, including its ability to award contracts and charge for commercial activities, could be exercised by a private health care company. The Bill opens the way for private companies to determine much of English health care and takes away the Government’s duties and powers, which is why I believe it should be opposed.

Health and Social Care (Re-committed) Bill

Andrew George Excerpts

Tuesday 6th September 2011 Commons Chamber

[Mr Lansley]

I will give the hon. Gentleman a shorter answer this time: he does not talk to enough people in the NHS.

Let me return to the important point that I was about to make. I was saying that criticism of the Bill has typically developed to the point of literally misrepresenting the facts in order to attack the Bill, as was the case with 38 Degrees. I am indebted to my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) for sharing with me a letter that he prepared for the better information of his constituents. He looked at the legal opinion obtained by 38 Degrees and concluded that it did not support the views that those behind the 38 Degrees website evidently wished it did.

For example, 38 Degrees claims that the Bill removes the Secretary of State’s duty to provide a comprehensive health service. However, its own legal advice makes it clear that the Secretary of State has never had a duty to provide a comprehensive health service—only a duty to “promote” a comprehensive health service, which is exactly reproduced in clause 1.

Clause 1 also makes it clear that the Secretary of State must secure the provision of that service. The “duty to provide” certain services to which 38 Degrees refers is a duty that I, as Secretary of State, currently delegate to primary care trusts. In future, the Bill will—in exactly the same way—pass that duty of the Secretary of State to the NHS commissioning board and to clinical commissioning groups. In other words, the situation will be legally unchanged. The Secretary of State has a duty, and discharges it through organisations to which he or she delegates that power. Strictly speaking, they have more direct statutory duties, but the duty to provide will not change.

38 Degrees also claims that the Bill opens up the NHS to competition law, but its own legal advice—which it obviously did not like—made it clear that there would be no change between the present competition regime and that which would operate if and when the Bill became law.

I am very grateful to my hon. and learned Friend, whose forensic analysis accords with our own view. The provision, under the Bill, of a comprehensive NHS is watertight, and it is equally clear that the Bill does not change the extent of the application of competition law and EU procurement rules. The 38 Degrees campaign should be seen for the distorting and misleading political propaganda that it is.

[Andrew George (St Ives) (LD)]

I entirely endorse the Secretary of State’s point about the biased way in which the last Government advanced the private sector, but may I make a point about the changes that have resulted from the listening exercise? The Secretary of State has sought to reassure the House about Monitor’s role of integration and promoting collaboration. Would he be prepared to respond to, and perhaps even accept, amendments that I have tabled—for example, amendment 1226—which propose, I think reasonably and in a balanced way, that promoting the importance and the role of integration should be among the principal duties?

[Mr Lansley]

As we said in our response to the recommendations of the NHS Future Forum, we recognise the importance of integrating health and social care services—while concentrating on the needs of patients and their families—to the achievement of our aims. However, I do not believe that we would further those aims by changing Monitor’s name, as amendment 1225 suggests. Although I agree with the aims of my hon. Friend the Member for St Ives (Andrew George), we have an alternative approach.

Rather than making it explicit that the Secretary of State could impose requirements on commissioners in key areas through regulations, as my hon. Friend suggests in amendment 1209, the Bill proposes that commissioners should have clear statutory duties to reduce inequalities between patients, in relation to both access and outcomes. That is covered in clauses 20 and 23. Commissioners would also have to promote integration of services in carrying out those duties. That is covered in clause 20, which inserts new section 13M of the National Health Service Act 2006, and in clause 23, which inserts new section 14Y. Those clauses refer respectively to the NHS commissioning board and to clinical commissioning groups.

The Bill would also establish clear duties for Monitor to allow the integration of health care services and the integration of health care with other relevant services, including social care. We have already amended the Bill to make it clear that Monitor should not promote competition for competition’s sake: this is all about quality. However, integration can only ever be a means to that end, not an end in itself. Integration, like competition, is designed to secure continuous improvement in the quality of services and a reduction in inequalities, as clauses 20 and 23 make clear.

Although I understand the point that my hon. Friend is making, I ask him to not to press amendments 1225 to 1228 when we reach the appropriate moment.

--- Later in debate ---

[Mr Lansley]

No. She can sit down.

Let me come to the other Opposition amendments. Amendment 10 would delete all of part 3, which would be absurd. Some of the other Opposition amendments are equally absurd. Amendment 28 envisages that part 3 would remain in place, but that Monitor would license providers of NHS services. However, it then takes away any means of enforcement. Perhaps the Labour party has forgotten that in government if you create obligations it is rather helpful to create a means by which they can be enforced.

Opposition amendment 44 would take the Bill down a slippery slope by trying to prescribe the range of factors that Monitor should reflect in setting prices for NHS services. Such a list could never be exhaustive and would inevitably suggest that some factors were more important than others. It would undermine our ability to hold Monitor to account for setting prices that promote patients’ interests. We must focus Monitor on its duties to promote the quality, efficiency and effectiveness of NHS services, not on trying to prescribe in legislation how it goes about it.

Labour Members have tabled amendments to part 4 that indicate that they either do not understand the Bill, or have abandoned their previous, repeated commitment to supporting all NHS trusts in becoming foundation trusts. They gave that commitment back in 2003, when they passed the necessary legislation, and repeated it in about 2006, when they said that trusts should all be foundation trusts by 2008. The Labour party manifesto from last year—2010—said:

“All hospitals will become Foundation Trusts, with successful FTs given the support and incentives to take over those that are under performing”.

Compare our programme for such hospitals as those in Trafford and Carlisle. The manifesto continued:

“Failing hospitals will have their management replaced. Foundation Trusts will be given the freedom”—

additional freedoms—

“to expand their provision into primary and community care, and to increase their private services”.

We will debate that later today, but I should complete the quote, or I might be accused of being selective:

“where these are consistent with NHS values, and provided they generate surpluses that are invested directly into the NHS.”

That is exactly what we are proposing.

The Labour party appears utterly confused. Does it support foundation trusts or not? The NHS Future Forum said that all NHS trusts should continue to work towards achieving FT status by 2014. It was right: achieving FT status is about demonstrating clinical and financial stability, and we think that all NHS providers should be expected to do that, in the interests of NHS patients and staff. If we maintained the NHS trust legislative model in statute, we would risk losing the change in mindset and the momentum that is being demonstrated by prospective foundation trusts.

Our consequential amendments 219, 220 and 367 to 370 will simply remove references to NHS trusts when they no longer exist—and not, of course, until then. For the hon. Member for Pontypridd, I add that our amendments 185 to 188 make it clear that—sadly for those in Wales—a foundation trust cannot merge with or acquire a Welsh NHS trust.

The Opposition want to take the retrograde step of de-authorising foundation trusts, retaining NHS trusts under the Secretary of State’s direct control, and having them dependent on the layers of bureaucracy that go with that. There would be all the regulatory requirements for foundation trusts and independent providers, and all the bureaucracy that has accompanied NHS trusts and strategic health authorities. That would undermine the FT regulatory regime and the objective of all NHS trusts becoming FTs. Opposition Members who voted in favour of the original legislation establishing foundation trusts in 2003 can have no credibility in supporting Labour now, because the very purpose of that legislation was to give hospitals greater autonomy.

Other Opposition amendments would simply result in duplication and reduced coherence in the Bill. For example, amendments 1166 and 19 seek to retain controls on goods and services, and borrowing and property, but that would duplicate Monitor’s powers through the licensing regime. Deleting clause 166, as the Opposition propose would undermine our intention of increasing transparency in the public financing of foundation trusts. I am looking for the hon. Member for Slough (Fiona Mactaggart); this would have been her moment. Through our amendments, we can show how we can maintain support for FTs, if necessary, in a transparent fashion, including through a requirement, which the Labour party apparently wants to delete, on the Secretary of State to publish an annual report showing what form of financial support has been given to foundation trusts.

I turn to the amendments tabled by my Liberal Democrat friends below the Gangway, who expressed their intention of improving NHS services and ensuring sustainable access for patients. We all share those aims, but I believe that we have in place alternative approaches to meeting those aims. The hon. Member for St Ives tabled a series of amendments emphasising the need to secure sustainability in the provision of NHS services. Securing sustainable access to meet patients’ needs is fundamental to good commissioning. We would expect the board to ensure that there was sufficient competency over issues when it authorised clinical commissioning groups to take on their new responsibilities, and when holding them to account for doing that job.

As the Government have said many times, our focus is on outcomes, including ensuring that patients have access to the services that they need when they need them. That the outcomes must be sustainable is obviously implied, but that is not necessarily the same as saying that commissioners must ensure the sustainability of particular providers or particular services, as amendments 1205 and 1209 suggest when referring to the sustainability of “existing NHS services”. In some cases it will not be in the interests of patients to maintain the status quo—for example, where those services may be unable to improve in line with new standards of clinical best practice, or where there is clear evidence that centralising specialist services on fewer sites would improve health outcomes, as we have seen in examples relating to cardiac, stroke and trauma services. So although I agree with the intention behind these amendments regarding the role of commissioners, I must urge the hon. Member for St Ives not to press them.

I addressed earlier the hon. Gentleman’s amendments about integration and collaboration. On integration, we agree with the conclusion of the NHS Future Forum that integrating services around the needs of patients and giving patients greater choice over who provides those services are not mutually exclusive. As the NHS Future Forum made clear, this is a false dichotomy. As the NHS Future Forum’s report stated:

“If commissioners want to commission integrated care they will only succeed in doing this by creating a new market in integrated care services and stopping the current commissioning of episodic services from different NHS organisations.”

As the hon. Member for St Ives will recognise, his amendments 1207 and 1208 are based upon that dichotomy, so I ask him to withdraw them.

[Andrew George]

Will the Secretary of State give way?

[Mr Lansley]

No. I do not want to intrude on the time of other Members.

Amendments 1219 and 1220 tabled by my hon. Friend the Member for Southport (John Pugh) would apply the Enterprise Act 2002 to mergers of the activities of foundation trusts with businesses, but would exclude from these arrangements mergers between foundation trusts. I have given careful thought to this proposal, but I am not convinced that it would address two of the problems of the existing regime.

There is currently legal uncertainty as to when and where the 2002 Act would apply to mergers of foundation trusts. As a result, under the current arrangements for the review of mergers involving foundation trusts by the Co-operation and Competition Panel, there is always a potential risk of duplication—or worse still, double jeopardy. The risk arising from a separate regime for foundation trusts would be increased where a trust’s activities extended beyond Monitor’s remit—for example, where a foundation trust provided social care or supplied goods. Consolidating oversight of foundation trust mergers under the Enterprise Act, as proposed by the Bill, would avoid the risk of double jeopardy and eliminate the uncertainty of the current approach.

Mergers are a specialist area. Hence, we think it is right to maintain existing responsibilities and expertise within the Office of Fair Trading and the Competition Commission, rather than resource a further body to consider potential mergers in health care. It may reassure my hon. Friend if I say that the OFT and the Competition Commission would consult Monitor to ensure that they had a full understanding of the health care issues involved.

--- Later in debate ---

[Mr Dorrell]

I absolutely agree with my hon. Friend. One of the further important clarifications in their position is the stress that the Government have placed—rightly—on the importance of the link between Monitor and the Care Quality Commission to ensure that standards in foundation trusts are not just about the achievement of financial targets, but are about standards of care quality delivered to patients. The link between the two regulators—one of quality and the other of financial standards—is an important part of the regulatory structure that the Government are introducing.

[Andrew George]

I entirely endorse the point that my right hon. Friend makes about the need to uphold standards and the role of Monitor in that respect. However, with regard to the Secretary of State’s response to me about the sustainability of essential services—acute emergency trauma centres—does he agree that Monitor must safeguard those services and not allow them to be eroded by the competitive environment in which they will operate?

[Mr Dorrell]

I agree that the sustainability of essential services—or, in the Government’s wording, the continuity of essential services—is a key role of Monitor. If I may interpret what my right hon. Friend the Secretary of State said, the patient’s interest is continuity of service, but not necessarily from the same provider for ever more. There has to be a commitment to sustain the service, and if there is to be a change of provider, the service has to be sustained through the change of provider, but the service does not necessarily have to be sustained by the same provider. Nor has there ever been such sustained service. There are not many people who rely on the service once provided by the Westminster hospital, as it is now a block of flats. I believe, however, that the service delivered to patients in this part of London is better as a consequence of the change that resulted from that decision.

--- Later in debate ---

[Liz Kendall (Leicester West) (Lab)]

This is a crucial part of the debate that we will have over the next couple of days. Parts 3 and 4 of the Bill are at the heart of the Government’s proposals for the NHS and of the concerns that professional bodies, patient groups, members of the public and Members—at least on this side of the House—have about those proposals. These parts will introduce a new economic regulator for the NHS, modelled on the same lines as those for gas, electricity and railways. They also enshrine UK and EU competition law into primary legislation on the NHS for the first time.

We have also been discussing crucial new amendments that, despite what the Secretary of State says, have not been scrutinised by the Future Forum, about the Government’s new failure regime. That essentially addresses which local services and hospitals—such as we all have in our constituencies—will be allowed to fail.

Each of these subjects should be subject to separate and far longer debates, because they are of such importance to our constituents, our local NHS staff and our local services. However, because the House has been given so little time and the Government have tabled so many amendments, we have been forced to take these huge issues together—[Interruption.] As always, the Minister of State groans from a sedentary position, but Members have a right to question the Government on their proposals for local hospitals and services, and three or four hours is not sufficient. I hope that the other place will take that into account.

The Bill establishes Monitor as an economic regulator, modelled on the same lines as those for gas, electricity and railways. The explanatory notes make this explicit. Page 85 states that clauses in part 3 are based

“upon precedents from the utilities, rail and telecoms industries”.

Indeed, in an interview with The Times earlier this year, David Bennett, the new chairman of Monitor, confirmed that that was the Government’s plan, saying that Monitor’s role would be comparable with the regulators of the gas, electricity and telecoms markets.

Labour Members have consistently argued that such a model is entirely wrong for our NHS. People’s need for health care is not the same as their need for gas, water or telecoms. There is a fundamental difference between needs, ability to benefit, the complexity of services and the fact that they are far more interlinked. The NHS is not a normal market. It is not like a supermarket, or like gas or the railways. There are much more important issues at stake.

The Government have made some minor amendments to Monitor’s duties, but they will not ensure the integration and collaboration that many hon. Members recognise is vital to improving health, especially for patients with long-term and chronic conditions. As my right hon. Friend the Member for Holborn and St Pancras (Frank Dobson) said, the duties still rig Monitor in favour of competition. It is not only Monitor’s duties that do that. Chapter 2 of part 3 contains 12 clauses that explicitly introduce competition law into primary legislation on the NHS for the first time. The clauses give Monitor sweeping powers to conduct investigations into NHS services; to disqualify senior staff in hospitals and other NHS services; and to impose penalties for breaches of competition law, including the power to fine services that are found to have broken the law up to 10% of their turnover. Not only that, but third parties, including competitors, can bring damage claims against those services.

The Government claim, as the Secretary of State did earlier, that somehow those provisions will not change anything. In that case, why bother to have the clauses in the Bill? As the hon. Member for Southport (John Pugh) said, Labour Members have argued not that the Bill extends the scope of competition law, but that it extends the applicability of competition law to the NHS. It is not just the clauses on Monitor and competition law that do this, but others such as those that abolish the private patient cap on foundation trusts, and other Government policies, such as that of “any qualified provider”.

[Andrew George]

I hope that the hon. Lady shares my disappointment that, despite the fact that we have debated this issue for four hours and that I have tabled nine selected amendments, I have not had the opportunity to explain the purpose of those amendments—even though the Secretary of State referred to them in his opening remarks. Does she accept, for example, that amendment 1207 relates to clause 58(3) and balancing competition versus anti-competitive behaviour? The other amendments seek to give integration a greater priority for the regulator to enforce.

[Liz Kendall]

I understand why the hon. Gentleman tabled those amendments and I understand his concerns. Opposition Members have consistently argued that the Bill threatens to pit doctor against doctor and service against service when they should be working together in the best interests of patients. Our view is that a far better approach than seeking to amend the Bill would be to delete part 3, because it is a fundamentally wrong way to treat our NHS. A few small changes to Monitor’s duties would not alter what the Bill seeks to do, and that is why amendment 10 proposes deletion of part 3.

The Bill will guarantee that the NHS will be treated as a full market, and the providers of services will, for the first time, be treated as undertakings for the purpose of competition law. The Secretary of State said that the Bill would not increase the applicability of competition law, but the Minister of State confirmed it when he told the Committee:

“UK and EU competition laws will increasingly become applicable…in a future where the majority of providers are likely to be classed as undertakings for the purposes of EU competition law, that law…will apply.”––[Official Report, Health and Social Care Public Bill Committee, 15 March 2011; c. 718.]

If the Government wish to claim that that would not be the effect of the Bill, they should publish any legal advice they have taken. Again, we have two different stories. The Minister of State says that the Government have taken legal advice, but in answers to parliamentary questions we hear that the Government have not taken legal advice. Members deserve to know what the advice is about the implications of this Bill.

NHS staff, patient groups and members of the public have very real fears about the consequences of the Government’s proposals and the full market that is envisaged in the Bill. The previous Government saw that giving patients more choice and a greater say in their treatment, and bringing different providers into the system—including from the private and voluntary sectors—can bring real benefits, including improving outcomes and efficiency, especially in elective care. But we always did that using clear national standards that this Government are abolishing and with the ability to manage the consequences that choice and competition bring.

--- Later in debate ---

The challenge for the Secretary of State is that he likes to argue two different things to two different audiences. On the one hand, he likes to say that he is the champion of competition, diversity, not bailing out failing services and allowing services that are ineffective—however that is defined—to fail. On the other hand, he wants to convince staff, members of the public, constituents and some Members of this House that what he really wants is integration and collaboration—that he wants to give clinicians, patients, the public and locally elected democratic representatives the final say over services, not the market. He cannot have it both ways, and Opposition Members know what the truth is. He wants to see a system in our NHS that would pit doctor against doctor, and service against service—one that would let the market rip without any ability to manage the consequences that choice and competition bring. Opposition Members do not believe that to be the right approach for our NHS or the people we represent. That is why we have tabled our amendments to this part of the Bill, and why we will be opposing it.

[Andrew George]

rose—

[Madam Deputy Speaker (Dawn Primarolo)]

Order. If the hon. Gentleman will resume his seat, let me say that the knife comes down at 8.30 pm and I would like the opportunity to give the Secretary of State five minutes at the end of this debate. I would therefore be grateful if the hon. Gentleman would watch the clock and bear that in mind.

--- Later in debate ---

[Andrew George]

No pressure, then. I will be as brief as I can. I tabled nine of the amendments in this group, and I had hoped to spend a little more time on them than I have been given this evening. I accept new clause 2, which I shall be supporting; the purpose of that proposal is primarily to rearrange the deckchairs on the Titanic, so that they do not get in the way of the lifeboats. I am happy to support new clause 2, although I have already made clear my views on the Bill and the general direction of the Government’s policy. I am not persuaded by many aspects of the Bill; indeed, I am very unhappy about them. I was very persuaded by the coalition agreement and felt that the balance of policy proposals in it was pretty much right. There were a number of debating points about the role and dynamics of “any willing provider”, but apart from that the themes were absolutely right. However, they were not reflected in the White Paper.

That said, the purpose of my amendments—the right hon. Member for Holborn and St Pancras (Frank Dobson) articulated this point far better, I am sure, than I am about to—is primarily to ensure that Monitor’s role to ensure that anti-competitive behaviour is kept in its box is balanced by looking at the impact of competitive behaviour that might undermine the ability of NHS services to collaborate.

The underlying purpose of amendments 1207 and 1208 is to neutralise or balance the new duty on Monitor to prevent anti-competitive practices that are against the interests of the people who use the services—in other words, patients—by also applying a duty to prevent anti-collaborative practices that would have the same effect. The Government say that that would result in Monitor preventing all practices that were against the interests of patients, but I disagree. Some unsafe practices would be neither competitive nor anti-competitive. The amendments would result in there no longer being a focus mainly on dealing with anti-competitive practices. I believe that that would strengthen the role of the regulator. This is a question of putting competition in its box, and it is important to ensure that it is put properly in its box, properly defined, and that the lid is put on. The purpose of the amendments is to achieve that outcome.

The Secretary of State told me, in response to an intervention relating to amendments seeking to secure a far better ability for Monitor to regulate the integration of services, that it should not be Monitor’s role simply to sustain services that are presumably otherwise unsustainable. The problem with that, in relation to my amendments 1205, 1209, 1229 and others, is that we need to ensure that we sustain the essential services. The important point here, which others have articulated, is that certain services clearly need to integrate. An example is acute emergency trauma centres. If the orthopaedic, paediatric or ophthalmology services were removed from such essential centres, their ability to deal with a wide range of emergencies would be fundamentally undermined. They serve populations of between 250,000 and 500,000 people—sometimes more—and they are absolutely essential. We must ensure that we do not end up with a regulator that allows them to be undermined by imposing a duty on them not to act in an anti-competitive manner.

The purpose of the amendments is to probe these issues, but the Government have made it clear that the NHS will no longer be the preferred provider, which leaves a question mark over the future of those essential and acute services. I will sit down now in order to give the Secretary of State more time than you requested for him, Madam Deputy Speaker, but I want to emphasise that I shall support the Government’s new clause. My amendments are probing amendments, but I wish that we had more time to debate these issues. This is very frustrating.

[Madam Deputy Speaker]

Order. I just remind the hon. Gentleman that the timetable for the debate was not set by me. I am merely assisting the House to meet its deadlines.

--- Later in debate ---

[Owen Smith]

I do not intend to take long, because we must get on to the important next group of new clauses and amendments, which is on the private patient cap; there will be huge interest in that outside this place, and there is far too little time to discuss it. I shall say right at the outset that we will not press amendment 17, because we accept that, as the Minister said, it is effectively made redundant by other amendments that have been tabled.

In some respects, the amendments in the group before us tell the story of the Bill in microcosm. Throughout the progress of the Bill, the Government have responded in two ways. One has been to bolt endless obfuscation and compromise on to the Bill to obscure its true intentions. There was clarity at the outset, in the Bill’s first iteration; it clearly aimed to break up a publicly owned, collaborative NHS and replace it with a competitive, market-driven NHS. The Government have sought to obscure that throughout the Bill’s progress, and have done so relatively effectively. Certainly, more gullible Government Members, perhaps even including the Deputy Prime Minister, have bought into the double-speak about this now being a question of preventing anti-competition, as opposed to promoting competition, but we Labour Members still do not buy that.

Nor do we buy the idea that the other amendments that we have considered today add clarity. In truth, they add to the confusion—the chaos, indeed—that will follow the implementation of the Bill. As the Minister has outlined, the clauses that we are considering effectively extend Monitor’s existing compliance and regulatory roles over foundation trusts to all FTs through to 2016. That is what the Future Forum recommended to Ministers, but they did not do that last time, although they did get rid of the arbitrary 2014 deadline that they had introduced. They are now going a step further and extending Monitor’s compliance functions. That might not be such a bad thing, and perhaps many people will agree with the idea; certainly the Future Forum will. The trouble with it, of course, is that it extends the critical conflict of interest that is at the heart of Monitor’s role.

There is a conflict between what is clearly Monitor’s principal function—as an economic regulator, designed to prevent anti-competitive behaviour and facilitate the exit of providers, such as hospitals, from the marketplace—and its compliance role, which is ostensibly about allowing FTs to flourish, and making sure that they do not fail. How will the Government deal with that apparent contradiction? To use their own words as set out in the original explanatory notes, how will they

“mitigate and manage potential conflicts of interest”

between the transitional functions and Monitor’s new functions? Well, rest easy, because the Government have made a very simple suggestion as to how Monitor should square that circle, which I am sure all Members will find satisfactory, as I do. Clause 62(3), subtly amended by Government amendment 89, explains that Monitor must simply

“ignore the functions it has under section…117 when exercising…its functions”

relating to competition, price-setting, or the licensing of NHS services.

So there we go: in Monitor there are to be Chinese walls, as Ministers colourfully put it in Committee. Monitor retains its role in trying to keep FTs from failing, but it also takes on a role in exiting them from the market and helping other providers—Bupa, perhaps, or Helios, which we know are sniffing around the Department of Health right now—to step into the breach. Chinese walls, competition and confusion: those are the key words for this botched Bill.

Question put and agreed to.

New clause 3 accordingly read a Second time, and added to the Bill.

New Clause 4

Orders under section [Duration of transitional period] that apply to only some trusts

‘(1) Where the Secretary of State proposes to make an order under section [Duration of transitional period] in reliance on subsection (2)(b) of that section (“a section [Duration of transitional period](2)(b) order”), the Secretary of State must notify Monitor.

(2) Monitor, having received a notification under subsection (1), must set the criteria that are to be applied for the purpose of determining to which NHS foundation trusts the order should apply.

(3) Before setting criteria under subsection (2), Monitor must—

(a) consult the Care Quality Commission and such other persons as Monitor considers appropriate, and

(b) obtain the approval of the Secretary of State.

(4) If the Secretary of State approves the proposed criteria, Monitor must—

(a) publish the criteria,

(b) determine, by applying the criteria, to which trusts the order should apply,

(c) notify the Secretary of State of its determination, and

(d) publish a list of the trusts concerned.

(5) If the Secretary of State does not approve the proposed criteria, Monitor must propose revised criteria; and subsections (3)(b) and (4) apply in relation to the proposed revised criteria as they apply in relation to the criteria previously proposed.

(6) If, having received a notification under subsection (1), Monitor proposes to set criteria the same as those it set on the last occasion it received a notification under that subsection, it need not comply with subsection (3)(a).

(7) A section [Duration of transitional period](2)(b) order—

(a) must apply to all the trusts that are determined under subsection (4)(b) as being the trusts to which the order should apply (and to no others);

(b) may specify the trusts to which it applies by reference to their inclusion in the list published under subsection (4)(d).

(8) Subsection (9) applies where —

(a) a section [Duration of transitional period](2)(b) order is in force at a time when there is in existence an NHS foundation trust authorised after 1 April 2014, and

(b) the initial two-year period in relation to that trust has yet to come to an end.

(9) Monitor must—

(a) determine, by applying the criteria it applied under subsection (4)(b), whether section 117 should continue to have effect in relation to the trust after the end of the initial two-year period,

(b) notify the Secretary of State of its determination, and

(c) publish its determination.

(10) If Monitor determines under subsection (9)(a) that section117 should so continue to have effect, the trust is to be treated as if it had been authorised on or before 1 April 2014 and as if the order referred to in subsection (7)(a) applied to it; and section [Duration of transitional period] (5) is accordingly to apply in relation to the trust.

(11) If Monitor determines under subsection (9)(a) that section 117 should not so continue to have effect, section 117 ceases to have effect in relation to the trust immediately after the end of the initial two-year period.’.—(Paul Burstow.)

Brought up, read the First and Second time, and added to the Bill.

New Clause 5

Repeal of sections [Duration of transitional period] and [Orders under section [Duration of transitional period] that apply to only some trusts]

‘(1) Sections [Duration of transitional period] and [Orders under section [Duration of transitional period] that apply to only some trusts] are repealed immediately after section 117 is repealed; and in consequence of that—

(a) in section 62(2)(a), omit “or under sections 117 and [Orders under section [Duration of transitional period] that apply to only some trusts] of this Act (imposition of licence conditions on NHS foundation trusts during transitional period)”,

(b) omit section62(3),

(c) in section 94(4), after paragraph (a) insert “and”,

(d) in section 94(4), omit paragraph (c) and the preceding “and”, and

(e) omit section 302(5)(e) and (8A).

(2) This section is repealed immediately after sections [Duration of transitional period] and [Orders under section [Duration of transitional period] that apply to only some trusts] are repealed.’.—(Paul Burstow.)

Brought up, read the First and Second time, and added to the Bill.

New Clause 19

NHS Foundations Trusts: phasing out of provision of private health care

‘The Secretary of State must make regulations which provide for NHS Foundation Trusts to be prevented from providing services other than those of the health service in England within three years of Royal Assent of this Act.’.—(Andrew George.)

Brought up, and read the First time.

[Andrew George]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dawn Primarolo)]

With this it will be convenient to discuss the following:

New clause 22—Private health care: rules—

‘(1) Section 44 of the National Health Service Act 2006 (Private healthcare) is amended as follows.

(2) Insert new subsection (A1) as follows—

“(A1) NHS Foundation Trusts must act in accordance with the following rules when carrying out their functions under this section—

(a) NHS Foundation Trusts are not permitted to operate NHS functions or contracts in a manner which promotes their private healthcare operation;

(b) any private healthcare service offered should only be within the provision of the services and procedures which are not also duplicated by the Trust’s NHS functions or contracts; and

(c) the Trust should at all times operate any private healthcare interest in a manner which in no way conflicts with its responsibility to provide unfettered access of its NHS patients to its NHS services.”’.

Amendment 1165, page 159, line 24, leave out clause 168.

[Andrew George]

The new clauses deal with a totemic issue that has bedevilled the debate throughout and raised concerns. The question whether to raise the cap or leave it where it is is a ham-fisted reaction to our current situation in the Report stage of a re-committed Bill. There should be an opportunity for further consideration, and I hope the issue will be examined in another place.

There has been much hyperbole about the privatisation of the NHS and other themes that have run through the debate. The general concern is that, as a result of various genies being let out of bottles and caps being lifted, we will end up with an NHS driven more by concern with private profit than by concern with matters of patient care. There is a slippery slope, of which that issue is symptomatic, throughout the Bill.

The purpose of the new clauses is to address that issue and retain the cap to ensure that the matter is kept under appropriate control. The rough and tumble of political debate means that we will end up scoring points off each other and asking who introduced foundation trusts and so on. We have been through that playground before and I do not intend to go in that direction, but I want to make sure that we have an opportunity to explore the matter. We do not have much time so I will not detain the House unnecessarily.

The removal of the cap will give more scope for NHS trusts to compete in the market, which will make them more likely to be considered undertakings for competition law purposes, even in respect of NHS services which the hospitals claim their private work subsidises, thus allowing competition law to reach further and more firmly into the NHS. The Government briefing does not even dispute that fact, as far as I can see. Also, if NHS foundation trusts can muscle in on the private market, rather like the BBC, private providers will feel more justified in arguing for the right to compete for far more NHS services, and the courts may well agree.

New clause 19 recognises that pay beds in the NHS represent a challenge, both ethically—it is about how beds can be reserved for paying patients in the same hospitals where poorer patients with higher needs must wait—and with regard to competition law. It would phase out the reserving of beds for paying patients in NHS hospitals by 2015.

New clause 22 would put a bar on foundation trusts offering private services where that would compete with their NHS provision. I certainly know, having undertaken surveys of the NHS 12 years ago, that the specialties with the longest waiting times—I will not say which, but Members might guess—happened to be those in which the most private practice was going on. One might argue that the private practice resulted from the long waiting times, but the long waiting times could have been part of a system that enabled the private sector to flourish. I fully accept—to save the Minister a lot of time in his response—that the new clause is technically very deficient, so I will not press it to a vote, but I want to express my concern and probe the issue in debate.

I know that there are ethical considerations here and that the General Medical Council and others would not only frown on the kind of practices I am implying might go on, but would rule against them. The concern is that the trusts, or those working for them, might be seduced into behaving in ways that drive their NHS patients into the arms of their private wings. Once we go down that road, many conundrums will arise and will need to be sorted out. I do not believe that the Government entirely have a handle on the issue, which is why I believe that simply lifting the cap, despite all the justifications they have given, needs a serious rethink.

--- Later in debate ---

[Mr Simon Burns]

I am grateful to my hon. Friend the Member for Cornwall—I mean the hon. Member for St Ives (Andrew George)—for moving the new clauses and amendment, especially for the constructive and reasonable way in which he did so. He raised several issues and, if I understand him correctly, he sees the amendment as a probing amendment that also puts across several of his concerns about this issue. I hope to deal with the main thrust of his concern in my contribution.

I am also grateful to the hon. Member for Islington South and Finsbury (Emily Thornberry) for her contribution. Her amendment and indeed her comments were more controversial and I have far more disagreement with several of the contentious things that she said, although she will be unaware that I am saying that because she is not listening. She might argue that she is not missing much.

I shall start with a fact. It may have got lost in the telling, but I assume that the hon. Lady realises that there is no cap at the moment for NHS trusts. There is only a cap for foundation trusts. She has not seen the difficulties that she forecasts in NHS trusts, and I hope—although I am not confident of success—that I will convince her that her fears are unfounded.

The Government believe that keeping the cap would damage the NHS and patients’ interests. Removing it would allow foundation trusts to earn more income to improve NHS services, and I will address the safeguards that will be in place to ensure that the armageddon that the hon. Lady predicted will not happen and that my hon. Friend’s concerns are needless.

Removing the cap will enable foundation trusts to earn more money to improve NHS services, and those trusts are telling us that they must be freed from what is an unfair, arbitrary, unnecessary and blunt legal instrument. I do not want to go too far down memory lane, but I must remind the House that there was no intellectual case for bringing in the cap in the first place. It was introduced in 2002-03 in the relevant legislation as a sop to old Labour. The right hon. Member for Holborn and St Pancras (Frank Dobson) says that he has moved on, but he still has the Neanderthal tendencies of old Labour—[Interruption.] Before the Opposition Whip says anything, I should point out that the right hon. Gentleman takes that as a compliment. I am being very nice to him and probably enhancing his street cred. He would not thank the Whip for diminishing that.

The point is that the cap was not brought in after some coherent intellectual argument about protecting the NHS or preventing private patients from overrunning the NHS. It was brought in because the then Health Secretary, Alan Milburn, and the then Prime Minister, Tony Blair, were having considerable problems with some of their Back Benchers on this issue. To avoid a defeat on the Floor of the House, they brought in the cap as a sop to those Back Benchers to buy them off. But it was not introduced consistently for both NHS trusts and foundation trusts—just for the latter.

The cap is arbitrary and unfair. Several NHS trusts that are not subject to the private patient income cap have private incomes well in excess of many foundation trusts. Last year, four of the top 10 private income earners were NHS trusts—that is, without a cap. A few FTs have high private incomes simply because they did a few years ago. The cap locks FTs into keeping private income below 2002-03 levels and means that last year about 75% of FTs were severely restricted by caps of 1.5% or less. Meanwhile, patients at the Royal Marsden benefit from its cap being 31%, and it has consistently been rated as higher performing by the Care Quality Commission.

[Andrew George]

The Minister is making an interesting point. Will he elaborate further on the proportions of the private work to which he refers? Is that private work for private patients or private work for research, innovation and training, which are important functions of hospitals but are often lost in the debate?

[Mr Burns]

The hon. Gentleman raises an important point, but the simple answer is that it is a combination of both.

The cap is unnecessary. I remind Opposition Members that the original proposal was not to have one. To suggest that NHS patients would be disadvantaged if the cap was removed, as the hon. Member for Islington South and Finsbury did, is pure and simple scaremongering. Existing and new safeguards will protect them. NHS commissioners will remain responsible for securing timely and high-quality care for NHS patients. The Bill will make FTs more accountable and transparent to their public and staff, allowing us to require separate accounts for NHS and private income and giving communities and governors greater powers to hold FTs to account in performing their main duty, which is to care for NHS patients.

--- Later in debate ---

[Diana Johnson]

I support amendment 1165. Although I have a great deal of respect for the Minister, his comments did not persuade me. The proposal to remove the cap is an example of the shambolic way in which the Bill has been presented. There seems to me to be very little evidence to back up what the Minister thinks might happen. He thinks that everything will be OK, but the NHS has never been in the position of having to make £20 billion-worth of efficiency savings—or cuts, which is what they really are. I believe that when the cap is removed, trusts will want to increase the income that they can obtain from private patients. My hon. Friend the Member for Warrington North (Helen Jones) made the good point that when waiting lists lengthen—which we know they are already beginning to do—those who pay will do so in order to receive the medical treatment that they want.

After 1997, NHS waiting lists in Hull fell to their lowest ever level. A private hospital that sat in the middle of an NHS trust—it was then the Hull and East Riding acute trust—was sold to the NHS. It had not been getting enough business, because the NHS was doing so well. We have heard in today’s debate about the high level of support for the NHS and about the current high levels of satisfaction, and I do not think that we should take this step.

Earlier, I spoke of the lack of principles that the Liberal Democrats were exhibiting yet again in respect of the NHS. It was interesting to hear the hon. Member for Southport (John Pugh) say that he was not doctrinaire on the issue. So the hon. Gentleman has no principles, and is not doctrinaire either. I recall that, in 2010, the Liberal Democrats campaigned in my constituency on a platform of saving the NHS, not increasing the number of private patients. I think that when this measure reaches the House of Lords, Liberal Democrat peers must stand up and be counted, because it is a disgrace that Liberal Democrat Members should support it today.

My main concern relates to evidence. Where is the evidence that removing the cap will work? I do not think that the safeguards exist to ensure that NHS patients will be protected, and I know that waiting lists are rising, which means that people in my constituency, and in poorer parts of the country, will not be able to gain the access to health care that they deserve. I believe that removing the cap is entirely wrong.

[Andrew George]

It is a pleasure to follow the hon. Member for Kingston upon Hull North (Diana Johnson), but I do not think she did herself or her party any favours in trying to persuade my Liberal Democrat colleagues and me to follow her or her party’s lead by launching a completely unacceptable attack on my hon. Friend the Member for Southport (John Pugh).

The Minister seemed to be trying to win me over by describing me as “the hon. Member for Cornwall”. His description stimulated my Cornish imperialist tendencies, and I was tempted to change that to “Cornwall and bits of England”. However, I shall leave it for another Bill, perhaps one relating to boundary reviews.

In his response, the Minister said that the cap was a “blunt instrument”. I acknowledged that in my opening remarks: it is indeed a blunt instrument, which does not achieve what I think we all want it to achieve. However, although the current situation is not satisfactory, neither is the proposal to lift the cap. That too is a blunt instrument, as was made clear by many speakers this evening. I do not think the Minister entirely acknowledged that this is a conundrum that needs to be resolved. As I have said before, the Government are right to address the issue and are doing so with the best of intentions, but they have come up with the wrong answer. Indeed, lifting the cap is not an answer at all. Further work is needed, and deleting clause 168 would be a good start.

As I have said, mine are probing proposals. I will support amendment 1165, but I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Southern Cross Care Homes

Andrew George Excerpts

Tuesday 12th July 2011 Commons Chamber

[Paul Burstow]

I said in response to the original question that there would be no relaxation of the standards when it came to the registration of new homes, and that there would be no rush but a smooth transition to the running of the businesses by new operators. There was no suggestion that the process would take place in a rushed way. I urge the hon. Lady to read the record later.

As for the role of the CQC, we made it clear last year that we would allow it to recruit the necessary staff, and that there would be no limit to its ability to recruit staff whom it felt that it needed in order to do its job.

[Andrew George (St Ives) (LD)]

What other lessons have the Government learned from this case? The new regulatory measures in the Health and Social Care Bill are welcome, but if greater proportions of both health and social care are being exposed to this level of speculative capital, do the Government not need to reflect on whether further measures are required?

[Paul Burstow]

I am keen not to start leaping to lots of conclusions. About 77% of all social care provision in England is already in the private sector. This is not an experiment, but a fact of life that has evolved over the last 20 and 30 years and has been overseen by Administrations of all colours. What we do need to do is ensure that we have effective, proportionate regulation that safeguards the interests of residents who see these homes as their homes, along with robust arrangements on the ground to safeguard good quality.

Oral Answers to Questions

Andrew George Excerpts

Tuesday 12th July 2011 Commons Chamber

[Paul Burstow]

That is exactly what the Government are doing. We have had those discussions with the devolved Administrations, and officials are engaged with the landlords and lenders to ensure that they are doing just that. I look forward to answering the urgent question shortly.

[Andrew George (St Ives) (LD)]

It is acknowledged that the rising rates of norovirus are worse where there is a shortage of acute hospital beds. How does the Secretary of State square the understandable desire to get on top of hospital-acquired infections with his zeal to reduce acute hospital beds?

[Mr Lansley]

I am grateful to the hon. Gentleman. He will understand that each hospital trust or acute trust must be responsible for ensuring that there is not an excessive length of stay for patients and that it has the ability to isolate patients if necessary. Norovirus is one circumstance in which trusts often have to open additional capacity. In my experience of hospitals, that is precisely what is generally done. There is an ability to open new capacity if necessary when norovirus strikes.

NHS Future Forum

Andrew George Excerpts

Tuesday 14th June 2011 Commons Chamber

[Mr Lansley]

I will make clear to the right hon. Lady, as the Prime Minister has made clear, that we will not let waiting times rise. We will continue to maintain downward pressure, but it is very important that we do not treat waiting times in the NHS as the only measure of performance. It is more than that: it is the quality of care that is provided, not just the access to care.

[Andrew George (St Ives) (LD)]

I am very sorry to say that the Secretary of State demonstrated a creative interpretation of the coalition agreement when he launched his policy last July. What can he say to the House to reassure us that he will not make the same creative interpretation of the Future Forum’s recommendations, particularly in relation to the risk of the marketisation of health services?

[Mr Lansley]

The hon. Gentleman will know that when I came forward with the White Paper last year, or the Command Paper in December, or the Bill, we did so collectively as a Government, and I can assure him and all my colleagues that we will continue collectively to agree on the basis on which we take all these issues forward.

Future of the NHS

Andrew George Excerpts

Monday 9th May 2011 Commons Chamber

[John Healey]

I am going to carry on and make a little progress.

If the Deputy Prime Minister is not going to sell out the principles of the NHS like he has the principles of his party, he must toughen the tests for the Bill and help stop the market free-for-all in the Government’s plans. If he and his party mean what they say, they can start today by backing us and backing the motion. It calls on the Government to drop

“the damaging and unjustified market-based approach”,

exactly as the Liberal Democrat spring conference did, and to

“uphold the Coalition Agreement promise to stop the top-down reorganisations of the NHS which have got in the way of patient care”.

There is no mandate for this, the biggest reorganisation in NHS history, either from the general election or from the coalition agreement.

[Andrew George (St Ives) (LD)]

If the right hon. Gentleman is concerned about consistency, he will know that since the publication of the White Paper last year, my concerns about the proposal have been well established. The motion, however, castigates top-down reorganisation. Will he apologise for the previous Government engaging in substantial top-down reorganisations time and time again, including the introduction of the independent sector treatment centres, which lost millions and millions of pounds of taxpayers’ money?

[John Healey]

Some of the reorganisations in the 13 years of our Government played an important part in the reform and the great gains that patients saw in the NHS. However, it is also the case—and we learn from this—that reorganisations often take longer, save less, cost more and have less impact on improving care for patients than envisaged at the outset. We learned that lesson towards the end of our 13 years, which is why we had a period of important stability in the NHS, but it is a lesson that the Conservatives have failed to learn—extraordinarily so, as we all thought that they had learned it, because NHS reorganisation is exactly what the Prime Minister promised not to do before the election.

The Prime Minister’s broken promise on NHS reorganisation is part of the reason for the growing doubt and distrust about whether he is making the right decisions for the right reasons on the NHS. He promised to give the NHS a real rise in funding, but the Budget this year confirmed a £1 billion shortfall in England. He promised to protect front-line services, but nursing posts are already going, and the Royal College of Nursing expects 40,000 NHS jobs to go in the next four years. The Prime Minister promised a moratorium on hospital A and E, and maternity service closures, but some are now going ahead, and more will follow—without public consultation—under the Health and Social Care Bill plans.

--- Later in debate ---

[Mr Lansley]

I completely understand and agree with my hon. Friend. I thought it was outrageous for the shadow Secretary of State to say, “Oh, they promised a moratorium and now some closures are taking place.” Why? Because we were left what were, in effect, faits accomplis by the previous Government and it was impossible to change them. [Interruption.] My hon. Friend the Member for Maidstone and The Weald (Mrs Grant) would feel the same as my hon. Friend the Member for Burnley (Gordon Birtwistle).

[Andrew George]

I can confirm that we agree on the issue of principle and that I am not questioning the Secretary of State’s personal commitment. The issue remains one mentioned in the motion: the extent to which the policy in the Health and Social Care Bill is not just another top-down reorganisation of the sort that the coalition Government said they would stop and the extent to which the policy being driven through Parliament, on which a listening exercise is taking place, delivers what is in the coalition agreement. The debate is about the extent to which the Bill reflects the coalition programme agreement.

[Mr Lansley]

My hon. Friend will know that the coalition agreement supports, in essence, all the principles of the Bill, with the exception of the specific consequence of the abolition of the strategic health authorities and primary care trusts. As with the whole of the Bill and its related measures, that proposal was the subject of collective agreement and it flows directly from the belief, shared not least by him and his Liberal Democrat colleagues, that we need much stronger local democratic accountability in the NHS. We are constructing health and wellbeing boards as an integral part of local authorities, and he will know that the overwhelming majority of local authorities which have volunteered to be early implementers of that approach believe precisely that democratic accountability is an essential part of the future of the NHS.

--- Later in debate ---

[Tony Baldry (Banbury) (Con)]

When in government, the Labour party acknowledged that the NHS would have to make considerable efficiency savings over the next few years. My right hon. Friend the Member for Charnwood (Mr Dorrell), the Chairman of the Health Committee, has described that as the Nicholson challenge. The more I listen to speeches from Opposition Members, the more I am convinced that their opposition to the Bill is a cynical exercise. Given the Nicholson challenge, if at any time any hospital gets into difficulty, the Opposition will simply say, “That’s a consequence of the health reforms.”

All of us in the House want to ensure that we get the health reforms right. I suspect that for all Members of Parliament the NHS in their own constituencies is one of the most important political and, indeed, constituency issues, but for me one of the main issues was, for much of the last Parliament—and still is—the need to retain the full range of services at Horton general hospital in Banbury. If there are difficulties in the NHS, it is hospitals such as the Horton that will experience them first. It is therefore imperative, for me, that we get the reforms right, but I have every confidence that the Secretary of State and his ministerial team will get them right.

The Secretary of State, the Minister of State, Department of Health, my right hon. Friend the Member for Chelmsford (Mr Burns), and pretty well every other health Minister has been to Banbury to visit the Horton. As the Secretary of State made clear to GPs in Banbury not so long ago, GP commissioning enables GPs to put their confidence in their local hospitals by commissioning services for them. In my county we will be replacing an Oxfordshire-wide PCT with an Oxfordshire-wide GP-led commissioning body, with GPs in the county working collaboratively.

In the brief time I have to speak, I want to make two points to Ministers. While I am sure it is right for us to pause and listen, we should also recall that GPs are keen to get on with this task. I have had public meetings in my constituency that have been open to every GP on my patch, and the message that I have received from them is that they want to be catalysts for change: they want to be able to shape health services in Oxfordshire.

GPs throughout the county recently elected Dr Stephen Richards to lead the development of the Oxfordshire GP consortium. His first comment was this:

“GP practices are the bedrock of the NHS. Now, the whole GP community, from partners and sessional doctors through to GP trainees are in a unique position to reshape health care for the population of Oxfordshire.

The new Consortium Lead and the Locality Leads in OGPC”—

the Oxfordshire GP consortium—

“will have much greater influence over the improvement of patient care. These GPs will be accountable to their GP colleagues”

and

“to the public... I aspire to Oxfordshire leading the way in developing ‘Evidence Based Commissioning’. A new form of commissioning that offers contracts based on incentives and agreed improved patient outcomes.”

[Andrew George]

Will my hon. Friend give way?

[Tony Baldry]

No, I am not going to give way as I am conscious that many Members wish to speak, and Madam Deputy Speaker has already told me off this afternoon for taking too long.

--- Later in debate ---

[Andrew George (St Ives) (LD)]

It is a pleasure to follow the right hon. Member for Holborn and St Pancras (Frank Dobson) and I was glad that his speech contained an element of recognition of the excellent contribution made by my hon. Friend the Member for Southport (John Pugh), who set out far more articulately than I could many of the concerns about the Bill that underpin this evening’s debate. These concerns have been raised by Liberal Democrat Members and I know for a fact that a number of Conservative colleagues feel the same way about aspects of the reform, although that has not been articulated this evening.

I wish to get one piece of rough and tumble out of the way before I commence with the substantive comments I wish to make in the short time available to me. I will not be supporting Labour’s motion this evening because to do so would be to endorse Labour’s history of having introduced the following: independent treatment centres, which wasted hundreds of millions of pounds of taxpayers’ money; alternative providers of medical services enforced through primary care trusts; and many other top-down reorganisations, which Labour Members now pretend they are against. It would also mean endorsing their approach to the whole concept of top-down reorganisations, the billions that Labour wasted on NHS IT systems and Labour’s failure to address the unfair funding formula, which set back my part of the country significantly and left it in significant debt, from which it is still trying to escape.

I set out my position in the Second Reading debate on the Health and Social Care Bill, on 31 January, when I refused to support the Government because of the criticisms and concerns that I raised then. I do not need to repeat them now, but I also made it clear then, as I do now, that I would vote against the Government on Third Reading if the Bill were to look in any way like the measure that we saw come out of the Committee and that will come through to the Report stage. I therefore look forward to the outcome of the listening exercise, and hope that it is a genuine listening exercise and that substantial changes will be made to the Bill. The changes that I wish to see are so substantial that they would take the guts out of the Bill.

To the concept of commissioning proposed in the Bill and the idea of handing all that power to one narrow group of clinicians—GPs—there is, despite what the hon. Member for Banbury (Tony Baldry) said about GPs in his area, at best a resigned reluctance and at worst outright hostility about what GPs are being asked to do. I do not go along with the hon. Gentleman’s view that they are keen to get on with it. They are responsible people and responsible professionals; they recognise when they are being asked to do something and they will get on with it, but I must say that they will not do so with any enthusiasm.

Secondly, the substantial elephant in the room is not the risk of privatisation of the NHS, as the hon. Member for Easington (Grahame M. Morris), who is no longer in his place, described it, but the marketisation of the NHS. My hon. Friend the Member for Southport (John Pugh) put it well: the cherries will be picked by the private sector. Any decisions on commissioning could easily be unscrambled by a process whereby decisions that were intended to try to integrate services could be challenged because they were structured uncompetitively. Those are two fundamental failings in the Bill.

This comes to the heart of what coalitions are about. No one gets their own way, as Labour knows from being in coalition in other places, and it is silly to be childish about that. In a coalition, the parties work together when they agree and seek a compromise where they fail to agree. I would argue that when they cannot come to any kind of agreement or compromise, they should allow Parliament to decide. What I do not like about what is happening is the fact that the Secretary of State is largely implementing this—

[Madam Deputy Speaker (Dawn Primarolo)]

Order.