Health and Social Care Bill

Andy Burnham Excerpts

Tuesday 20th March 2012 Commons Chamber

[Andy Burnham]

It is important to begin by setting out the background to many of the amendments in this group. Despite the pause that the Government ordered for the Bill, they failed to allay fears about the creation of a market based on a 1980s utility privatisation, with Monitor acting as an economic regulator—a parallel drawn last November not by me, but by the King’s Fund in a report it published. That, more than anything else, has been behind the huge professional disquiet about the Bill that we have seen over recent weeks and months, with respected professional organisations coming out one after another to express their concern about the damage that will be done to the health service if hospital is pitted against hospital, doctor against doctor. That is where we start.

The Minister began his remarks by talking about the myths relating to part 3 of the Bill and objecting to some of the interpretation that I have just given. I do not know who he had in mind when talking about those myths, but it might have been the noble Baroness Williams. I will quote from an article she wrote in The Guardian on Monday 13 February. It is important because it explains the genesis of one of the amendments that the House is considering tonight. She acknowledged that there were:

“fears among the public and within the medical profession that clinical commissioning groups might become dependent on advice from powerful private health companies, and that the imposition of UK and European competition laws, addressed to markets and not to social goals, might destroy the public service principles of the NHS. In plain terms, this is often described as a fear of privatisation. These are issues that must be addressed.”

When the Minister talked disparagingly about myths, did he have the noble Baroness in mind? I think that he must have done, because in the same article she went on to suggest that the answer to the concerns and fears that she had correctly identified was to drop the whole of part 3. She wrote:

“What that would mean for the bill would be dropping the chapter on competition, and retaining Monitor as the regulator of prices and of the foundation trusts.”

I am not privy to the internal machinations of the Liberal Democrats, but I think that there must have been some wrangling and soul searching in the two weeks following the publication of that article, because by 27 February a letter had emerged that was co-signed by the noble Baroness and no less a figure than her party leader, the Deputy Prime Minister. The call to drop part 3 of the Bill, which had been made so eloquently in The Guardian two weeks earlier, had in fact turned into something very different. The letter stated that they needed to go further to amend the Bill in order

“to rule out beyond doubt any threat of a US-style market”.

If what the Minister has said at the Dispatch Box this evening is true and all these fears are myths, why did his party leader and the noble Baroness send that letter? Indeed, why were there even concerns about the threat of a US-style market, which his party leader acknowledged on 27 February? They do not sound like myths to me; it sounds like they were very real threats indeed.

What I want to address this evening is the fact that when the package of amendments that were meant to put the Clegg-Williams package into the Bill finally emerged, they fell considerably short of what was promised in the letter. Indeed, we are dealing with some of those tonight. I will focus on Lords amendment 148 in particular, which deals with the private patient income cap. When the Minister spoke a moment ago, I did not find him reassuring at all. When he spoke about foundation trusts in the future he said that they would of course remain the principal providers of NHS services, but I do not find that at all reassuring. The exchange he had with the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) was very revealing. The right hon. Gentleman made a mistake that the noble Baroness made when she took on Polly Toynbee on the same issue. The right hon. Gentleman, like the noble Baroness, does not seem to understand the effect of the amendments he is agreeing to. He began by asking, “Wasn’t it the case that the 49% figure was now completely ruled out and wasn’t relevant?” No is the answer to that. All that the Minister has offered him is that if the increase is more than 5%, it then has to be passed by a vote. I find it incredible that a Member of his years and standing in this House has just revealed that he does not understand the amendments that have been signed up to in order to deliver the package set out in the Clegg-Williams letter. That is a terrifying state of affairs; I do not know what the Members in his party who voted against that might make of it.

[Simon Hughes]

I absolutely understand the amendment, as I am sure does the right hon. Gentleman. Given that 1%, 2% or 3% of most hospitals’ activity is private at the moment, as he well knows, it seems to me that it is a much better guarantee that we have a rule that says that no hospital can increase that by more than 5% of what it is now unless there is a decision made locally. That gives much more security than anything else previously in the Bill, and that is why it seems to me to be a very worthwhile amendment.

[Andy Burnham]

Let me answer that directly. The Financial Times has analysed the latest data on actual NHS income earned through the treatment of private patients and demonstrated that in the last year not a single hospital trust would have been caught by this so-called safeguarding amendment. It used the example of Great Ormond Street, which increased its income from private patients by 19% from 2009-10 to 2010-11, to £25 million. In percentage points, that increase was less than 1%. Given the small numbers in the cap which the right hon. Gentleman has just mentioned, he is agreeing to trusts being able to increase their income from private patients by multiples of hundreds of percentage points without any reference to their boards of trustees. Frankly, he has not addressed the point that he has failed to understand that the Bill still gives trusts the permission to increase it to 49%. They could go to the trustees and increase it to 49%. He might be reassured by that, but I most certainly am not.

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[Andy Burnham]

No, I do not, is the answer—[Interruption.] Well, what has that proved? We had trusts earning income, but the foundation trust legislation set a cap: it allowed the principle but tightly controlled it for the vast majority of hospitals. That was its purpose. This Bill removes those tight controls. This Bill, supported all the way on that point by Liberal Democrats, now allows hospitals completely to change character over time. In time they can turn to US-style hospitals and devote half their facilities to the treatment of private patients—

[Anna Soubry (Broxtowe) (Con)]

That is rubbish.

[Andy Burnham]

It is not rubbish. They can earn 49% of their income, according to this Bill, from the treatment of private patients. That is a fact, and why the hon. Lady shouts “rubbish” I have no idea.

[Mr Burns]

Will the right hon. Gentleman just confirm that when his Government brought in controls on foundation trusts, they allowed non-foundation trusts, which were the majority of trusts at the time, to have a 100% cap?

[Andy Burnham]

Non-foundation trusts were managed by the Department, and the Department’s policy, during our time in government, was to have a tight cap—[Interruption]. There was a tight cap on the income that trusts could earn, so the very fact of foundation trusts’ creation gave rise to the question of whether there should be a cap. The Minister is effectively abolishing that cap with his Bill.

[Mr Simon Burns]

Answer the question.

[Andy Burnham]

I have answered the right hon. Gentleman’s question. It was an entirely different situation altogether.

On the suggestion that we are setting our face against reform, we have not said that, and I as Secretary of State initiated a review of the private patient cap, because the issue came up before the election. I was prepared to allow a modest relaxation of the cap if it could be demonstrated to benefit private patients, but I was talking about single percentage points: 1% or 2% becoming 2% or 3%. I was not in any way conceiving the possibility that 49% of a trust’s income might be made from the treatment of private patients—that half their theatre time, beds and car parking spaces could be turned over to the treatment of private patients.

[Dr Poulter]

I hope that the right hon. Gentleman will concede that those hospital trusts with a private patient cap that is set at perhaps 35%, such as the Royal Marsden hospital, do not necessarily do that much private work. The decision is at the hospital’s discretion, so the idea that raising the cap to 49% will mean that hospital trusts will per se undertake 49% private activity has been proven to be incorrect, on the facts as they stand at the moment in hospital trusts, because those trusts, the doctors and boards work for the benefit of their patients.

[Andy Burnham]

That is the ideological difference between us. The hon. Gentleman says that the decision should be at the hospital’s discretion, but the Bill essentially sets everybody on their own. Hospitals are being told, “You’re on your own. There’s none of the support from the centre any more, no bail-outs, as the White Paper said. That’s it, you’re out there, you’re competing in a market, and you’ve got to stand on your own two feet.” I differ from that opinion because I want systems regulation and a role for the centre in deciding whether a hospital should greatly increase its treatment of private patients.

This is not just a question of each individual hospital thinking about what it is going to do, because hospitals will have pressure on their bottom lines, as a colleague said earlier. They will be operating in a difficult financial context, and it might have a different effect on their individual interests. It might make sense for hospitals, individually, to increase the number of private patients, but it might not make sense for the NHS patients who live in that area, and that is the entire point: the Government are trading systems regulation for the individual decisions of local organisations, because that fits when we move to a competitive market in which every individual organisation is a competing business.

[Dr Poulter]

I am struggling to follow the coherence of the right hon. Gentleman’s argument. On the one hand he says that it was all right for non-foundation trusts, under the previous Government, to increase massively the amount of private work that they did, as long as the Department agreed with it; on the other hand he argues that it is very important to control the amount by which foundation trusts raise the private patient cap. He cannot have it both ways, and his argument is not intellectually coherent. Is this not about doing things for the benefit of patients and leaving it up to local hospitals to decide?

[Andy Burnham]

The hon. Gentleman should make a speech if he wants to make interventions of that length. We had a cap to protect the interests of private patients; he is getting rid of the cap, and he is going to have to explain to patients in his constituency, if waiting lists start getting longer, why that is happening. It is as simple as that. We had systems regulation, he is removing that with the Bill and we are moving to a more unregulated market, which is not what we want to see.

[Grahame M. Morris]

On a point of order, Mr Deputy Speaker. I wonder whether I might seek your advice in relation to a declaration of interest. The hon. Member for Boston and Skegness (Mark Simmonds) has made two interventions on the private patient cap and has made a declaration of interest. He is a director of Circle, a private health care company. Is it your ruling that every Member must make such a declaration if they speak during the course of this debate?

[Mr Deputy Speaker (Mr Nigel Evans)]

It is up to each individual Member to make whichever declaration of interest they wish during a debate, but ultimately it is up then to the Member and the Commissioner if the Member wished to take that further.

[Andy Burnham]

The amendment gives us no protection at all, and it gives us no protection from the NHS cross-subsidising private care. There is nothing in the Bill which says, “The whole costs of the provision of that care have to be reimbursed to the national health service”, as the Financial Times has again demonstrated, and that is why we object to what is happening. We are going back to the old days of the NHS, whereby patients are told, “You can go private or you can go to the back of the queue and wait longer.” That is the choice which we removed from the NHS during our 13 years in government, and we will not accept any return of it.

[Simon Hughes]

I do not think that I have any more support or encouragement for the private sector in the NHS than the right hon. Gentleman does. May I therefore get him to accept that what Lords amendment 148 does is to limit in relation to each hospital an increase to—

[Simon Hughes]

No, to 5% of its current figure—not 5% in total, but a 5% proportion. That is what the amendment says, and that gives Guy’s hospital, St Thomas’s hospital and King’s College hospital and patients the reassurance that I think they need. The right hon. Gentleman should read the amendment.

[Andy Burnham]

I am not going to debate that now. The right hon. Gentleman is going to have to defend himself on whether he has his facts right. I do not think that he has.

We need to put firmly on the record that there are real flaws in the Liberal Democrats’ proposal. They say that it is a safeguard to state, “The governors will decide and it is better done at a local level,” but the governors are going to be under pressure from the management of the hospital because of the pressure on the hospital’s finances. If they make a decision that is in the interests of that hospital, it does not mean that it is in the interests of everybody and of NHS patients.

[Paul Burstow]

The model that the right hon. Gentleman describes is one that he was only too happy to go through the Lobby and support during the introduction of foundation trusts in the first place. He has omitted to mention Monitor’s role in overseeing the situation through its powers of intervention to ensure the safeguarding of a comprehensive health service, and to mention the guidance that the Secretary of State will give Monitor in order to do just that.

[Andy Burnham]

I am afraid that I am not at all reassured by that, or in fact by anything the Minister says. The letter that we have from the Deputy Prime Minister spoke of insulating the NHS from European competition law, but I am still waiting to see the amendment that delivers that. As I understand it, one of the Minister’s noble Friends tabled an amendment and then withdrew it, because they did not have the courage to press it to a vote, and accepted a statement on the record instead. This is different from what the Minister keeps saying that we did in government, because he is envisaging a huge expansion of the role of any qualified provider and the putting out to tender of commissioning support units. He has overseen a situation in which three community services have been compulsorily tendered.

The truth is that the Clegg-Williams letter, with the amendments that followed, does not only fail to deliver but sells out the national health service, as does so much of what the Liberal Democrats have agreed to. Our amendments, particularly amendment (b), would provide a measure of systems regulation in the best interests of the NHS, and that is why we will seek to press amendment (b) to a vote.

[Dr Poulter]

I rise to speak in support of the Government, and of what the previous Government did for the NHS. When the shadow Secretary of State was Secretary of State for Health—the same was the case with many of his predecessors—there was a consistent policy whereby the private sector should be used where it could add value to patient care in the NHS. That was done very effectively by the previous Government to bring down waiting times for operations, but it was not effective when it was not done in an integrated way. Very often, it was done without regard to post-discharge planning for patients but, as we heard earlier, the renewed focus on integration should help to deal with those problems.

We have some of the very best hospitals not only in this country but in the world, including the Royal Marsden and Moorfields eye hospital, where a relatively high proportion of activity is carried out by the private sector. No one doubts those hospitals’ commitment to their NHS patients or that they still provide those patients with the very high standards of care of which health care systems in other countries are very envious. We are very proud of what those hospitals do, and the Government would like to give other hospitals the same opportunity and freedom to follow their example. The Government believe that it is absolutely appropriate that we should use the private sector where it can enhance value to NHS patients. That is absolutely consistent with the previous Government’s policies, for which many Labour Members campaigned at the last general election. This Government are also committed to those policies.

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[Simon Hughes]

I am absolutely clear that I was not sent to this place to force through the privatisation of the NHS, to force people from the public sector into the private sector, or to undermine great hospitals such as Guy’s, St Thomas’s and King’s College or the other hospitals in my constituency and my borough. Like colleagues from all parts of the House, I know what a fantastic service the NHS provides, not as a matter of policy but from personal experience. It saved the life of my younger brother and looked after my mother in her last days in the most fantastic way that anybody could wish for. I am clear about the commitment of the NHS.

I am therefore clear that we have to look at what the Bill says and what it will do. I have had an exchange about that with the shadow Secretary of State for Health. This is a really important issue outside this place. Clause 161 sets out the following principle:

“The principal purpose of an NHS foundation trust is the provision of goods and services for the purposes of the health service in England.”

That was not thought to be enough, so colleagues in the other place said, “Let’s for the first time ever make it clear that private activity can never be more than a minority activity.” That is why the 49% figure appeared.

However, that is not still enough—[Interruption.] Let me deal with this point. That is why Lords amendment 148 is before us. It states that if any foundation trust hospital in England proposes to increase its private income by 5% or more from its current level, which is usually about 2% or 3% of its income, the governors have to agree to the proposal by a majority. There will not be any great vote by the governors of Guy’s and St Thomas’s, King’s College or any other hospital, with the public participation in the debate that there would be, suddenly to increase their private sector activity. That is not the real world, because that is not what the British public want. There are one or two cases—

[Andy Burnham]

Will the right hon. Gentleman give way?

[Simon Hughes]

In a second. There are one or two cases, such as the Royal Marsden, which have historically had a higher percentage of private sector activity. Those hospitals have justified doing so, because they are specialist hospitals that have got money in from outside. However, I do not want us to leave this debate letting the public believe that there will now be the opportunity for all the hospitals in England suddenly to move, without any control, towards undertaking huge amounts of private sector activity.

[Andy Burnham]

rose—

[Paul Burstow]

rose—

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[Simon Hughes]

I absolutely understand both those points. I understand that commissioning groups cannot subcontract their decisions, but the point I am making to my hon. Friend and to other Ministers is that we have to ensure that the groups do not end up in the position where, although they retain the decision, they leave lots of the thinking about it to the people they employ to do the work. The decisions have to be made by the health professionals. In reply to the Labour amendment, the Minister rightly said that it is a safeguard that local authorities will have the decision on the local healthwatch. Where a local authority is concerned that it should remain in a particular format, it will be able to do so.

In conclusion, I am clear, as I have said to Labour’s Front-Bench team, to constituents and to my friends on the ministerial team, that our constituents still have a huge amount of concern about this Bill; I am clear that a lot of it has arisen because of misinformation and misrepresentation; and I am clear that this is not a privatisation Bill and not a “carve up the NHS” Bill. However, everyone, including Government Members, will need to continue to be vigilant and to continue to talk to the health professionals. I hope that the Government and the health professionals will start talking again very soon. We will also all need to make sure that we understand their concerns and pass them on. I know what my constituents want at the end of this debate; they do not actually want lots of conversations about structures of the health service.

[Andy Burnham]

I listened to what the right hon. Gentleman said about misrepresentation and I wonder who he had in mind. Did he have in mind the members of his own party who went to Gateshead and asked for the Lords not to support the Third Reading of the Bill, although they did so yesterday? Did he have in mind those people who raised the most serious concerns about this Bill? I am talking about his own party members, who overturned his party’s leadership. I will not sit here and have him suggest that the concerns exist only among those on this Front Bench, because that is not the case; they exist throughout the country, and he needs to acknowledge that.

[Simon Hughes]

Let me deal with both those points. I acknowledge that absolutely. On past occasions, the right hon. Gentleman has been to our party conference, although I do not think he came to the Gateshead conference. [Interruption.] It appears that one of his colleagues did. There were and are concerns in my party about this. My party wrote the plan for the NHS, which the good Labour post-war Government implemented, so of course we think we are as much the proprietors of the NHS as his party and of course there are concerns. There are many concerns—many colleagues are not happy with the Bill—and I am owning up to that.

I am absolutely clear about that, but do not let the right hon. Gentleman misrepresent what happened at Gateshead. My party is a democratic party. It is more democratic than his, thank God, and much more democratic than the Tory party. Our party voted to commend the Lords for the work they had done, but to suspend judgment on the Bill. My party neither voted to say that the Bill should not go ahead, nor to decide that the Bill should go ahead. That was what the debate, in the end, was about. There was not quite a majority saying, “Stop the Bill”; that was not the view of the conference, although there are many people in our party, as there are in his—this view is also shared by some in the Tory party and elsewhere—who would want the Bill to be stopped.

The Bill is not going to be stopped; it will become law. The Bill contains many good things. My concern now is to reflect what constituents, both health professionals and those who are not health professionals, come to talk to me about. They feel that there is a need to get back to concentrating on the things that really matter, such as making sure the wards are clean; making sure that the staff are of the highest quality; making sure that the waiting times go down; making sure that we can get decent care for the mentally ill; and making sure that our NHS is able to do better on all that it does. That is what the concerns are.

I want to make sure that Ministers understand that once the Bill is on the statute book there should be no cause for rejoicing, because this is not a matter for rejoicing. It is a matter of a challenge for Government to go back in humility to the health professionals and say, “We may not have got it all right—we may have got some of it wrong—but we are willing to listen, to learn and to work with you.” In the end it is collaboration between local authorities, local councillors, local people, Ministers, parliamentarians and those millions of fantastic people who work in the national health service who will make sure that the health service survives. It will survive and prosper in this country as a public health service—thank God—and we must all work together to respond to concerns, alleviate fears and not fan the flames. We must make sure that from now on we work on the basis of facts, not fiction, and that we work with those who have the concern, like we do, that the NHS should survive and prosper.