Care Bill [Lords]

Andy Burnham Excerpts

Tuesday 11th March 2014 Commons Chamber

[Jeremy Lefroy]

I am grateful to the hon. Member for Stoke-on-Trent North (Joan Walley) for playing an extremely important and constructive role in this whole matter. She has been very supportive, and she makes some extremely important points. We need to look at the whole issue of administration, to which I will come in a few moments.

The Secretary of State’s decision to introduce the addition has given me considerable comfort about new clause 6, which I tabled before his decision, not being necessary. He does not seem to consider himself entirely constrained by the law into only accepting or rejecting Monitor’s recommendations in full; there is clearly room for proposing changes to details while still accepting the main thrust about the dissolution of a trust.

We shall of course need to see the results of the NHS review of consultant-led maternity services. If, as I hope, they are retained as a vital part of the regional health service—together with the level 1 special care baby unit, which serves a much wider area—it is important that finances are put in place to ensure that they are sustainable. I would therefore welcome clarification from the Minister about how the Department of Health now interprets the law.

If the Secretary of State’s decision on Mid Staffordshire demonstrates that the law allows for positive changes to the details of recommendations without Monitor having to go through another lengthy and legalistic process at a time when, as in the case of Stafford, a hospital is in a very fragile state, I welcome that fact, and new clause 6 will be unnecessary. However, if the Minister wants confirmation of the flexibility set out in the new clause, I would be happy for the Government to accept it or something similar.

Finally, to return to the question of trust special administrations, I believe that they are the right way to dissolve the legal entity of a foundation trust, but they are most certainly not the right way to redesign clinical services. That is not to criticise Monitor generally or the trust special administrators in the case of Mid Staffordshire—I believe that they acted within the remit given to them by this House—but we as a House did not get it right either in 2006 or in 2012. I urge a complete rethink, starting today.

[Andy Burnham (Leigh) (Lab)]

I rise to speak to my amendment 30. When the coalition came to office, it made a series of grand promises about future changes to hospital services. The coalition agreement proclaimed:

“We will stop the centrally dictated closure of A&E and maternity wards, so that people have better access to local services.”

GPs were to be put in the driving seat and given the power to shape local services. That was then; now we have a Secretary of State who has not just failed to stop centrally dictated closures but wants to legislate to make them much easier. What a difference four years make.

Clause 119 allows a hospital to be closed or downgraded simply because it happens to be near a failing one. It denies local people a meaningful say in those life and death decisions. It creates an entirely new route for hospital reconfiguration—top-down and finance-led. It subverts the established process in the NHS, which requires that any changes to hospitals should first and foremost be about saving lives, rather than saving money. It puts management consultants, not medical consultants or GPs, in the driving seat. By any reckoning, it represents a major change of policy from the one originally set out by the coalition.

[Dr Poulter]

If the right hon. Gentleman is so concerned about issues of financial failure, why did the Health Act 2009, through which the previous Labour Government introduced the regime, allow trust special administrators to consider only financial failure, not care failure, a fact which we are changing in the Bill?

[Andy Burnham]

The Minister anticipates me—he has hit the nail on the head. It was a different vehicle. It was a vehicle for financial and administrative reconfiguration, not service reconfiguration. In our view, those important decisions cannot be imposed on people, but should follow an established process. It should begin with local consultation, with local elected members involved in overview and scrutiny having the chance to make challenges, and then it should be referred for independent reconfiguration. That was the previous Government’s established policy, and in my view it is the right way to make changes in the NHS. As I shall explain, that is why I believe that he and his colleagues are spectacularly wrong.

[Dr Poulter]

rose—

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

rose—

[Andy Burnham]

I give way to the hon. Lady.

[Caroline Lucas]

Does the right hon. Gentleman agree that as well as being profoundly undemocratic, the measure is likely to be incredibly counter-productive? Any Government who try to use a trust special administration to impose sweeping change without proper local public engagement will face a barrage of opposition because, as he says, change should be driven by clinical arguments, not imposed top-down.

[Andy Burnham]

The hon. Lady is absolutely right. The measure risks damaging, rather than building, public trust in the whole process of changing hospitals. In the end, that is probably the most powerful argument against what the Government are seeking to do.

By any reckoning, the proposal is a major change of policy from the one set out in the coalition agreement; yet there has been no Green Paper, no White Paper, no policy document, no statement to Parliament, no proper explanation of the Government’s intentions and no justification of the extreme measures sought. Instead, on the back of a court defeat, the Secretary of State has rammed a new clause into the Bill, asking the House to give him sweeping powers over the NHS in all our constituencies without even having the courtesy to come to the House to make the argument for the changes himself. How arrogant to expect us just to rubber-stamp the powers, without even coming to explain himself. That really shows the House a major discourtesy.

The fact is that the Secretary of State has not adequately made the case for what he wants to do. Instead, Members are asked to take a leap of faith and to trust him, but that is very hard to do when we see what happened to the people of Lewisham. In standing up to this Government, they won a victory for everyone; without them, we would not be debating clause 119 today. I pay tribute to my right hon. Friend the Member for Lewisham, Deptford (Dame Joan Ruddock) and my hon. Friends the Members for Lewisham West and Penge (Jim Dowd) and for Lewisham East (Heidi Alexander), who provided superb leadership when the people of Lewisham felt incredible outrage at their trusted and valued local hospital being prised out of their hands.

[Dame Joan Ruddock (Lewisham, Deptford) (Lab)]

I am most grateful to my right hon. Friend. He should also pay tribute to the efforts of all the clinicians, GPs and health workers. It was not just down to the leaders of the community; everybody was united. That was because the decision was not about clinical standards, but was an accountant’s solution to a different problem.

[Andy Burnham]

My right hon. Friend makes a very important point. The community came forward, with clinicians standing beside ordinary people on the streets of Lewisham, to say, “This is not acceptable.” My right hon. Friend and others gave voice to that concern and brought it to this House. That incredible campaign gave heart to campaigners everywhere. She was right to put that point on the record.

[Heidi Alexander (Lewisham East) (Lab)]

The Save Lewisham Hospital campaign was terrifically important, but there was also a protection written into law in relation to the trust special administration regime. Does my right hon. Friend agree that clause 119 will today remove that legal protection?

[Andy Burnham]

I agree with my hon. Friend. That is the point that the Minister revealed in his intervention. The original power was designed for something entirely different. It was designed to deal with financial failure in a trust. It put in place measures to dissolve and rescue that trust through administrative reconfiguration. It was never intended as a vehicle for back-door reconfiguration across a whole health economy. That is where the Government got themselves into trouble. The fact that they cannot see that now, after the court has told them that they went way beyond Parliament’s original intention, reflects badly on their ability to listen.

[Dr Poulter]

rose—

[Mr Dorrell]

rose—

[Andy Burnham]

I give way to the Chairman of the Health Committee.

[Mr Dorrell]

I ask the right hon. Gentleman to reflect on what he has just said. Does he really believe that we can make the changes that are necessary, whether in an individual health institution or in a whole health economy, by looking purely at the finances, without looking at the effect that changing the financial structure needs to have on the structure of care delivery, particularly through the delivery of more integrated care, which he and I so often talk about?

[Andy Burnham]

This is where the right hon. Gentleman and I differ. I believe that we need to begin by asking whether there is a clinical case for change and build from there. Clause 119 seeks to turn things around. It starts with the financial case for change and the clinical issues come second. The previous Government established a very clear policy, advised by Sir Ian Carruthers, that the clinical case must be front and centre, and that we must build from there. Clause 119 completely subverts that.

[Dr Poulter]

The shadow Secretary of State is rewriting history. Under the TSA clause written by the Labour Government, only financial failure could be considered as part of a trust special administrator regime. That is not the case under the changes in the Bill, in which it is about patient care. The Care Quality Commission has a clear role in assuring that patient care. Will he now accept that?

[Andy Burnham]

The Minister makes my point again. The powers dealt only with financial failure. That is the point. The Government tried to misappropriate those powers and use them as a back-door route to impose reconfiguration on local communities. That is where they got into trouble. That is why the High Court said that they were acting beyond their powers and breaking Parliament’s original intention in the legislation. In his two interventions, he has made my fundamental case, which is that this is the wrong vehicle for making major changes to hospital services.

[Dr Poulter]

rose—

[Jim Dowd (Lewisham West and Penge) (Lab)]

rose—

[Andy Burnham]

I give way to my hon. Friend.

[Jim Dowd]

My right hon. Friend says that clause 119 is the result of defeat in the courts. That is true. However, the Government capitulated before the decision of the appeal court was known, just after the decision of the High Court in July. My contention—if I am able to catch your eye later, Madam Deputy Speaker, I would be happy to elaborate further—is that the Government knew from the outset that they had no legal power to do it and were just, in the way of all bullies, trying it on until somebody stopped them.

[Andy Burnham]

That is why I say, “Thank God for the people of Lewisham.” The Government may well have got away with it if they had picked on a community that does not know how to fight like my hon. Friend’s community. I say in all seriousness that they did a service for every community that is worried about its hospital services. That fight inspired everybody. He is right that the arrogance is breathtaking.

We have not had a White Paper or an explanation of why the Government have tried to misappropriate these powers. In the absence of information, mistrust is building about the Government’s intentions. Why are they doing this? It seems to many people that they would not be driving these powers through today if they did not have every intention of using them to the full. It will not have escaped people’s attention that financial problems are building in the NHS, with the King’s Fund predicting that more than one in five hospitals will end this year in deficit. The Labour party has today identified 32 communities where there are entrenched financial problems and that could be at risk of imposed change if clause 119 passes.

The Minister must answer a straight question: are any plans being worked up in the Department of Health, NHS England or Monitor to begin an administration process in any of those areas or in any other parts of the country if the clause passes? The hon. Member for Stafford (Jeremy Lefroy) made a similar point a moment ago. Indeed, he went further and said that there should not be a further administration process. I hope that the Minister will listen to that point. The House deserves an honest answer to that question today before it can be expected to give its consent.

[Mr Crispin Blunt (Reigate) (Con)]

As a constituency MP, I have seen hospitals that are well supported by their community, and which happen to be in Labour marginal seats, create powerful political forces. As a result, decisions were made by two of the right hon. Gentleman’s predecessors that materially damaged the delivery of secondary health care in my constituency. He will therefore understand why I am considerably happier with the arrangements in the Bill, which take both care and money into account. The Secretary of State will have the powers that he needs to make sense of the delivery of health care so that it is not at the mercy of the kind of decisions that his predecessors took.

[Andy Burnham]

Before the hon. Gentleman makes that argument, I suggest that he speaks to the people of Lewisham to see whether they think that the process was fair. I suggest that he goes and speaks to the people of Stafford to see whether they think that the process has been fair. I do not know how he can argue that the new process is better than the original process, whereby there was always local engagement and through which elected Members had a chance to refer matters to the Independent Reconfiguration Panel.

[Andrew George (St Ives) (LD)]

We often debate this matter in the House and we all agree in principle with the concept of reconfiguration, until it is the local hospital in our constituency that is affected. That is the conundrum. What facility does the right hon. Gentleman think the Secretary of State and the Department of Health need to overcome the fact that every MP will defend their local hospital, even though reconfigurations are clearly required?

[Andy Burnham]

The hon. Gentleman makes that argument as if there were no changes to hospitals under the previous Government. There was plenty of change, but there is a right way and a wrong way of doing things. I would argue, as I just have, that the previous way of doing things was a better way.

[Grahame M. Morris]

Will my right hon. Friend give way?

[Andy Burnham]

In a moment.

The previous Government made changes to stroke services in London just before the last election. The number of units went down from 12 to eight. That was based on a clinical case for change. We took that argument to local people and said, “Look, it will save lives if this goes through.” That is how the Department can take people with it—by building a case for changing hospital services. Clause 119 threatens to set that back, because it puts finance in the driving seat. That risks losing public trust in the case for change. That is why what we are being asked to endorse today is, in my view, fundamentally wrong.

[Grahame M. Morris]

My right hon. Friend has made his point powerfully. I was going to ask him for an example of how it is possible to make a reconfiguration that is clinically driven. He has given the example of stroke services in London. Another example is coronary services in the north-east, where an overwhelming clinical case was made by clinicians and accepted by the general public.

[Andy Burnham]

The difficult thing for me is that when I think back to some of the processes I was involved with—stroke services in London, child care and maternity services in Greater Manchester, changes to A and E across the country, Chase Farm hospital, and other places—those issues were cynically used by those on the Government Benches when they were in opposition, and it was a bare-knuckle fight to save every hospital in the land. That is what they said, whereas we made the case for change because it would improve patient safety. I would not change my tune if I was in opposition; I still believe that hospitals need to carry on changing, but as I said, I will not do that by imposing changes on local people. The right way is to explain why, and take people with us.

[Dame Joan Ruddock]

Let me give my right hon. Friend another example. I and my hon. Friend the Member for Lewisham West and Penge (Jim Dowd) both supported the closure of a local children’s hospital, and its services were moved to Lewisham hospital. When the trust special administrator looked at Lewisham hospital, children’s services were not even considered.

[Andy Burnham]

Government Members would do well to listen to my right hon. Friend because she followed that whole process in detail. If people listen carefully, she is saying that clinical evidence took second place, and the process was driven by management consultants, not by clinicians. Government Members told the House that doctors would be in charge from now on, but that was not the experience of my right hon. Friend or the hon. Member for Stafford. That is why this proposal should not be accepted by any Member of the House.

[Frank Dobson (Holborn and St Pancras) (Lab)]

My right hon. Friend says that the propositions were made by management consultants. He will be aware that those consultants were from PricewaterhouseCoopers, which was Northern Rock’s auditor and did not notice that it went broke, and KPMG, which was the auditor for Halifax Bank of Scotland and Bradford and Bingley, and did not know that they went broke. They are probably giving bad financial advice as well as clinical advice.

[Andy Burnham]

I am not sure there is much I can add to that. Why are management consultants better placed—my right hon. Friend makes the point that they are not—to make sweeping changes to hospitals in our constituencies than experts and clinicians?

[Mr Brian H. Donohoe (Central Ayrshire) (Lab)]

It is always dangerous to wander into territory that is not necessarily our own, but what happens—or is likely to happen—here today, has an awful habit of happening up in Scotland tomorrow. As a consequence of the fact that the Scottish Government are perhaps the most centralist and draw in all their powers, what representations, if any, has my right hon. Friend made to his equivalent in the Scottish Parliament to find out exactly how they would go about the same business?

[Andy Burnham]

I speak to my counterpart in the Scottish Parliament on a regular basis, and we are clear that this proposal is not the way to take people with us or build support for change in the NHS. This is a way to alienate people and damage public confidence, and that is why it is so dangerous.

[Steve Baker (Wycombe) (Con)]

Will the right hon. Gentleman give way?

[Andy Burnham]

I will make some progress but I will give way to the hon. Gentleman before the end of my speech.

Let me set out more of the background, because the Minister raised it a moment ago. In 2009 I took proposals through the House to create a process that could be used in extremis to deal with a trust that had got into serious financial problems. That was a financial and administrative vehicle, not a vehicle for widespread service change across the health economy. That is why the High Court was quite correct in upholding Parliament’s original intention when it accepted the case of the people of Lewisham against the Secretary of State, and threw out his plan to downgrade a much-loved and successful hospital. At that point, common decency would have suggested that the right response to the reverse in court would have been to listen to the court and bow down gracefully. Instead, it appears for all the world as if in a fit of pique, the Secretary of State is changing the law to get his way because he can. Imagine the outcry if someone caught breaking the law could simply come along and change it to their satisfaction. We would not accept that for burglars, and we should not accept it for politicians.

[Dr Poulter]

The right hon. Gentleman is being very generous in giving way. He makes the point that, during his time in office, the regime was very limited. In the interests of consistency, I point out that page 6 of his own impact assessment for the TSA regime in May 2009 states:

“NHS Trusts…are not free-floating, commercial organisations …State-owned providers are part of a wider NHS system.”

That directly contradicts what the right hon. Gentleman has just been saying.

[Andy Burnham]

Is the Minister listening to the debate and to what I am saying? I have explained to him carefully that that was a vehicle for financial and administrative reconfiguration. Yes, a neighbouring trust might have had to come and help with a solution to carry on with the administration and the running of that trust. That is the point, and that is what he has just read out. It was never a vehicle for service change—I do not know how many times I can make that point to the Minister before he actually listens.

[Richard Fuller (Bedford) (Con)]

Will the right hon. Gentleman give way?

[Andy Burnham]

I will give way one final time, and then I will complete my remarks.

[Richard Fuller]

For clarity, the shadow Secretary of State is talking about in extremis and financial failures. What policy did he put in place for in extremis care failures, and why is it not appropriate to have others help out in such circumstances?

[Andy Burnham]

I will come on to that point, but the CQC had existing powers on care failure, and powers to move more quickly than clause 119 provides for. Adequate powers were in place to deal with the point the hon. Gentleman has just made.

In truth, it is arrogance in the extreme for the Government to be coming along today—and worse, it seriously risks damaging public trust in how change in the NHS is made. That will be the real loss if the clause is accepted. It threatens to destroy any public faith in a sense of fair process governing these crucial decisions, and any prospect of cross-party consensus on a way to make changes to hospital services.

Making changes to those services is about the most difficult decision that politicians have to make, but the fact is that hospitals need to change if we are to make services safer and respond to the pressures of an ageing society. We did not shy away from that in government, and we do not say something different now. However, there is a right way and a wrong way of going about such things.

The Government’s answer—to use a brutal administration process to take decisions above the heads of local people—is a spectacularly wrong response to a very real problem, and precisely because those decisions arouse such strong emotions, we must find better ways of involving people, not shutting them out. If people suspect a stitch-up, and see solutions imposed from on high, they will understandably fight back hard. Does the spectacle of tens of thousands of people marching in Stafford or on the streets of Lewisham not give Ministers pause for thought that this new approach might seriously set back the goal of better public engagement in the NHS?

[Steve Baker]

rose—

[Andy Burnham]

I will give way one final time, but I hope the hon. Gentleman will take on board the point that public engagement is essential if we are to have trust in the NHS.

[Steve Baker]

I am most grateful to the right hon. Gentleman and I have listened extremely carefully to what he has said. Wycombe lost its A and E under his Government. Does he seriously suggest that that change was not imposed on the people of Wycombe, or that they were listened to, engaged and approved of the change?

[Andy Burnham]

I am saying to the hon. Gentleman that the previous Government had a process at the end of which was an independent panel—the Independent Reconfiguration Panel—to take a decision on whether a proposal was right or wrong in the interests of patient safety, which was the driving principle. I will defend the changes we made to improve services. I have given him the example of stroke services in London. The Opposition are not against making change in the NHS, but we are emphatically in favour of local people in areas such as his having the ability to have their say in the process. Clause 119 seeks to drop solutions on local people from on high.

Our policy was set out in the Carruthers review, commissioned by Patricia Hewitt in 2006, which concludes:

“Reasons for change should be built on a clear evidence base of clinical and patient benefits.”

That principle guided the Darzi review towards the end of the previous Government, which put quality centre stage. The Darzi review influenced the plans for stroke services in London and others, and the difficult changes we planned to make in south-east London before the last election. A detailed consultation, “A Picture of Health”, had brought together a case for change to how services were delivered across the area. It was given formal approval before the election, but was subject to the Government’s moratorium after it.

In the space of a few years, Ministers have gone from campaigning outside hospitals to save services to campaigning for extra powers to close them down without debate. That will leave the NHS more top-down than ever before, with the patient and public voice utterly marginalised.

--- Later in debate ---

[Jim Dowd]

It is with some trepidation that I must disagree with my right hon. Friend. In fact, the figure was closer to two thirds of the estate. The scheme was so well engineered that they left the bit that we were keeping, allegedly, for whatever was going to be there—a glorified first aid post—completely landlocked. There was no access apart from via the River Ravensbourne, which is not the mode of transport favoured by most people using Lewisham hospital. Oh yes, it was all worked out well beforehand.

The public meetings following the publication of the draft report were, of course, rather more difficult to control. People were able to ask questions, although they did not receive many answers. Those who were presenting the case on behalf of the trust special administrator did not seem particularly receptive to what was being said, although on occasion, when they came up against a difficult objection, they would say “South London Healthcare NHS Trust is losing £1 million a week: £1 million that is not being spent on health care for patients.” We know that—it is self-evident—but when they were told “That is not the problem of Lewisham hospital”, and asked “Can you not understand that?” , the answer was no, they could not understand it.

That was followed by a little homily of the kind much beloved of some people: “If your domestic budget was being overspent week after week, you would need to take action, would you not?” Naturally everyone agreed, but a woman who attended the public meeting at Sydenham school said to Mr Kershaw, “If your domestic budget was being overspent, of course you would have to do something about it, but that would not include breaking into the house of the people next door and nicking all their stuff”—which is what was being proposed in south London by the special administrator.

After attending numerous meetings with Mr Kershaw and his associates, and at the other south London hospitals, I eventually concluded that—recognising that those who would be worst affected by their proposals were hardly likely to be very receptive to them—they automatically assumed that there would be opposition and hostility, and automatically factored in and discounted it, saying “Of course they are going to object to the changes, but we have a task and a mission to pursue.” The whole process was condescending, impenetrable and antagonistic. The special administrator and his acolytes and accomplices had a mission, given to them before they ever left Richmond House, which they were determined to deliver. They already knew the answer, and they were not going to bother to do anything other than go through the motions.

We owe thanks to Lewisham council, to the Save Lewisham Hospital campaign and, amazingly enough, to the High Court and the Appeal Court, whose three judges—Lords Justices Dyson, Underhill and Sullivan—within 24 hours unanimously overturned the Secretary of State’s case that he had the powers to do this. As I have said, the Secretary of State had already capitulated by then. The Government knew from the outset that this was legally questionable. They knew they did not have the powers to behave in the way they were behaving, but they basically just said, “Who’s going to stop us?” I will tell you who stopped them: the people of Lewisham and their supporters and the High Court. That is who stopped them.

This clause will make occurrences like that more, not less, likely. More communities across the country are going to be threatened and will come under the tender mercies of the TSA process.

[Andy Burnham]

My hon. Friend is absolutely right. More communities could face this threat, but is not the point that those communities would not have the ability to fight it in the way that Lewisham was able to fight and defeat it?

[Jim Dowd]

My right hon. Friend is right; that is precisely the point and that is precisely what this Government intend. I have absolutely no doubt about that; their writ will run whether people want it or not.

After all that, what is the current position of South London Healthcare NHS Trust—after that £5 million? Princess Royal in Orpington is now an adjunct of King’s College hospital. The TSA was quite happy to say the whole thing should be passed lock, stock and barrel to King’s. There was a rather unseemly squabble about the size of the bung King’s should get for taking on Princess Royal, but there was no specification about the services that should be provided there or anywhere else; that was entirely up to King’s. Queen Mary’s, which of course is not a fully functioning district general hospital, is now being managed by Oxleas NHS Foundation Trust, the primary care trust in that part of the world. Again, the TSA made no recommendations about what services, or what range of services, should be provided there.

Queen Elizabeth, which, of course, is the biggest problem in what was South London Healthcare NHS Trust, has now merged with Lewisham university hospital in the Lewisham and Greenwich NHS Trust. It is now managing a very difficult proposition; I do not dispute that for a moment. I have my doubts about whether that is the best move for the people of Lewisham, but I understand why it has been done. Yet, the board at university hospital Lewisham was prepared to enter into that agreement before the TSA even set foot in the area. So what we have now in south-east London was entirely possible by rational argument and reasoned consent without the need for the TSA and all the disruption, anguish and distress he and his acolytes have caused. I say to Members voting on this tonight, “Remember; you may not want to visit a TSA and I don’t blame you, but that won’t prevent them from visiting you if this clause goes through.”

--- Later in debate ---

[Paul Burstow]

I think the hon. Lady will find some sympathy for that view.

Local commissioners and trusts should be responsible for sorting out difficulties that could lead to a failure. Again, it needs to be clearer what happens at the pre-failure stage, and Ministers need to work with NHS England and Monitor to set out the pre-failure regime so that it is crystal clear what needs to happen to avoid triggering the TSA process. It might be argued, as Labour did in 2009, that when an NHS trust fails, there needs to be a fast way of making decisions about its future. Those decisions might have knock-on effects, but that should not mean that one trust’s failure triggers a wholesale re-engineering of local health services without proper checks and balances and accountability. Decisions about local health services should be taken by clinical commissioning groups.

I have tabled new clause 16 because I believe that two principles established by the Health and Social Care Act 2012 deserve to be protected. The first principle is—

[Andy Burnham]

Will the right hon. Gentleman give way?

[Paul Burstow]

If I may develop my point, I shall be happy to give way to the right hon. Gentleman.

The first principle is that, in the absence of failure in the arrangements set up by local commissioners, decisions about what services should be provided at an NHS trust or an NHS foundation trust should be taken by local commissioners working within their local health economies, and should not be foisted on the local NHS from outside. This autonomy principle is reflected in the absence of any general right for the Secretary of State or NHS England to direct local commissioners about the discharge of their functions. The previous position under the Labour Government was that the Secretary of State could issue directions to primary care trusts. We did not replicate that in the 2012 Act.

[Andy Burnham]

The right hon. Gentleman has made an outstanding contribution to proceedings over the past couple of days and I pay tribute to him for that. He was centrally involved in the development of coalition health policy after the last election. Does he agree with us that clause 119 represents a major departure from some of the statements that were being made by him and by others in this House when the Health and Social Care Act was going through?

[Paul Burstow]

I am grateful for that intervention. As I develop my argument, I think the right hon. Gentleman will hear where I sit on the spectrum of viewpoints. He may be interested in what I am about to say.

The second principle is that commissioners who have successfully managed the quality and demand in their area should not have decision making taken away from them. Decision making can be removed from the trusts that are failing, and this may mean that commissioners of such bodies have to accept unwelcome changes. But local decision making should remain in place where a local commissioner and provider are working successfully together. Thus the first purpose of my new clause is to seek to place with the commissioners of services at NHS foundation trusts and NHS trusts that are not in special administration the same decision-making powers as are given to commissioners of services of NHS trusts that have been found to fail and are in special administration.

At present the Bill creates two classes of commissioner. Where there is a trust in special administration, the clause provides that commissioners of services at that trust are able to define the services that the failing trust should continue to provide. The commissioners are thus entitled to ring-fence certain services that they feel must be preserved for the benefit of local patients. They are, in effect, given a veto on the extent of changes that can be made to a troubled trust because of the statutory objectives set for the administrator. The commissioners are thus able to act to preserve local services.

However, the present text of section 65DA does not give the same rights to the commissioners of adjoining trusts. They are relegated to second-class status. Clause 119 as drafted envisages that a special administrator is entitled to make recommendations for changes at trusts other than the trust in special administration which are not approved by local commissioners. In its present form clause 119 does not provide that the commissioners of the services at trusts other than the trust in special administration enjoy the same veto over the extent of any changes as the commissioners of a trust in special administration. There is a fundamental lack of parity of esteem between the different organisations and the different commissioners in a locality. It is that inequality that I am seeking to change.

--- Later in debate ---

I have no doubt that, as was outlined by the Chair of the Health Committee, there are cases in which changes are needed in the local health economy that extend beyond the trust that is failing. The fundamental problem is that clause 119 seeks to change the trust special administration process in a way that was never intended. It has the potential radically to change the configuration of our NHS services. When hospitals are identified as being no longer viable, it risks being used as a Trojan horse to privatise our hospitals. [Hon. Members: “Oh!”] There is a groan from Government Members, but one of them suggested a merger between two hospitals in or nearby his constituency in Devon. There are practical issues to consider. We saw what happened in Bournemouth and Poole, where a sensible merger proposal was resisted on the grounds that it was anti-competitive.

[Andy Burnham]

Given that clause 119 is a dramatic extension of the Secretary of State’s powers, as my hon. Friend is rightly saying, does he agree that it is astonishing that the Secretary of State is not in the House this afternoon to make the case in person, to ask for the powers and to justify the idea that we should entrust the future of our hospitals to him?

[Grahame M. Morris]

I am absolutely amazed. I share my right hon. Friend’s incredulity that the Secretary of State is not here. In my view, clause 119 is one power too many for a Secretary of State who apparently believes the NHS to be a 60-year-old mistake. [Interruption.] That is a direct quotation from the Secretary of State before he took office.

The Secretary of State’s increased power and Monitor’s expanded role directly contradict the Government’s earlier promise that local commissioners would no longer be subject to central diktat. That represents a reversal of the vision that was presented during the consideration of the Health and Social Care Act 2012. Clause 119 supports none of the preconditions for a legitimate reorganisation of a local health economy and will allow trust special administrators to overrule any concerned parties.

If clause 119 becomes law, the Secretary of State will be granted the power to issue directions to require foundation trusts and clinical commissioning groups to take steps that they do not want to take. Any Member who wants to prevent the Secretary of State’s axe from falling arbitrarily on their own hospitals without clinical justification should seek to remove the clause from the Bill. I therefore urge right hon. and hon. Members to support Labour’s amendment 30 and new clause 16, which is a compromise measure to ameliorate the worst aspects of clause 119.

--- Later in debate ---

[Mr Simon Burns (Chelmsford) (Con)]

It is a pleasure to follow the hon. Member for Hayes and Harlington (John McDonnell). He said at the beginning of his remarks, and he kept to his pledge, that he was going to speak without party rancour. I, too, would like to do that because I think there is very little difference between my views on the health service and those of the right hon. Member for Leigh (Andy Burnham). We may perhaps have a divergence of view on how to achieve what we both passionately believe in, as does my right hon. Friend the Secretary of State, which is the finest health service for the provision of care for all people in this country, but on the core principle of a national health service, free at the point of use for all those eligible to use it, there is not one iota of difference, despite the speech I heard from the endearing hon. Member for Easington (Grahame M. Morris). I almost felt I had woken up from a nightmare. Having listened to the same speech in 39 of the 40 sittings of the Health and Social Care Bill Committee, I regarded it as my good fortune that during the 40th sitting, my right hon. Friend the then Secretary of State was giving evidence to the Health Committee which prevented the hon. Gentleman being in our Committee.

The point I want to make is this: the national health service has from day one constantly evolved in the delivery of health care, partly because of changing medical science, partly because of changes in the diseases that people have suffered from owing to improved and enhanced preventive care, and partly because many conditions that in the past one would stay in hospital for no longer need to be treated in hospital but can be treated in a GP surgery or elsewhere. We all—politicians, medical practitioners and others—have to recognise that the NHS is constantly evolving and revolving, and we have to adjust to those changes and meet those challenges.

I passionately believe that decisions within the NHS should be taken locally. I supported the Health and Social Care Bill so strongly because it devolved powers and decision making to the people who I think are best qualified to take commissioning decisions on behalf of patients—local GPs. I also welcome the fact that my right hon. Friend the Secretary of State is no longer micro-managing the running of the NHS on a day-to-day basis. However much admiration I have for my right hon. Friend, or even for the shadow Secretary of State when he was in post, I do not think he is best qualified to be running the health service on a day-to-day basis.

If we are going to evolve and meet the challenges, difficult decisions will have to be taken, and politicians in particular—politicians of all political parties; this does not apply simply to Opposition Members of Parliament or to Conservative Members or to Liberal Democrats—have got to be braver. When there is any consideration of a reconfiguration to meet new challenges or address problems, the knee-jerk reaction is to take the populist, easy route, say no and oppose for opposition’s sake, rather than look at the reasons behind any reconfiguration.

[Andy Burnham]

The right hon. Gentleman knows I have huge regard for him and I do not disagree that change needs to be made. The question, however, is how we make that change. I remember that when the earlier Bill was going through, he repeatedly said in this House and in TV studios that the principle behind it—if it had a principle—was to put local doctors in charge. Does he think that clause 119 is consistent with the argument he made when the earlier Bill went through?

[Mr Burns]

I am grateful to my right hon.—or, rather, the right hon. Gentleman; I nearly made a Freudian slip—for that question. I can unequivocally say to him that I believe it as strongly and firmly today as I did when I was one of the Ministers taking the Health and Social Care Bill through this House three years ago. And I shall tell the right hon. Gentleman why I believe it.

I was saying that politicians of all parties must strengthen their backbone and be prepared to look at each case of reconfiguration on its merits, and then take difficult decisions if they are in the best interests of patients. I believe that reconfigurations should initially be determined at local level—[Interruption.] If the right hon. Member for Leigh will wait, I will get to his point. They should be determined by local commissioners in consultation with local people and with the health and wellbeing boards, which play a vital part in keeping local communities and local health interests plugged in and represented, and in ensuring the delivery of the necessary services locally.

However—this is where I get to the right hon. Gentleman’s point—there will be a few rare and exceptional circumstances in which a TSA will have to be appointed. That is what happened in the case of South London. At that time, I happened to be privy to all the discussions that led up to what was, if I remember correctly, the unprecedented decision taken by the then Secretary of State, my right hon. Friend the Member for South Cambridgeshire (Mr Lansley).

--- Later in debate ---

[Mr Burns]

The short answer to the hon. Gentleman, because I have the freedom of the Back Benches, is that I do not share that view. I was privy to the discussions that led to South London being put into special measures. That was done because there were real and significant problems to which it was impossible at a local level, within NHS London and elsewhere, to find a coherent—[Interruption.] The right hon. Member for Leigh says no. He was in opposition at the time these conversations were taking place.

[Andy Burnham]

It is wrong. The right hon. Gentleman will know that when he arrived at the Department of Health in May 2010, there was a plan in place called “A Picture of Health”—[Interruption.] My hon. Friend the Member for Lewisham West and Penge (Jim Dowd) agrees. The plan, which had been extensively debated and consulted on at local level, was to make difficult changes to the health service in south-east London. That plan was shelved because of the right hon. Gentleman’s moratorium, and precious time to make changes was therefore lost. The financial problems in those health service organisations increased because the plan was shelved, and they were left with the option of having to bring forward a more brutal administration process. Please do not rewrite history in a debate as important as this.

[Mr Burns]

I agree with the right hon. Gentleman that this is a very important debate. I have the benefit of having attended the meetings and having seen what was happening in South London. In one respect the right hon. Gentleman is absolutely right: there was a moratorium. The country wanted a moratorium to start with because of some of the closures that were causing problems, and people wanted a re-examination of the situation to check that the right decisions were being taken. Work was still going on to find a solution to South London, and my right hon. Friend the Member for South Cambridgeshire reluctantly came to the conclusion that he had to take the exceptional power that was available to him.

--- Later in debate ---

[Dr Poulter]

That is absolutely the case. It is absolutely wrong to conflate the fact—as Opposition Members are trying to do—that from time to time even good hospitals occasionally run deficits with the TSA regime. This is a power of last resort; it is not a power that is routinely used. Local measures are in place to support hospitals to get their finances in order and to ensure that where there are care quality problems, they are addressed promptly to the benefit of patients.

[Andy Burnham]

The Minister was saying that all other measures should be explored first, in particular co-operation—buddying, he said—between hospitals. If that is the case, why did the Competition Commission step in to prevent sensible collaboration between two hospitals on the south coast, Bournemouth and Poole? How is what he has just said consistent with the Health and Social Care Act 2012, which requires hospitals to compete, not to collaborate?

[Dr Poulter]

As part of our changes in the wake of the Mid Staffordshire inquiry—changes the right hon. Gentleman would be wise to heed and learn lessons from, if he should be lucky enough ever to be on the Government Benches again—we have made it clear that we need to ensure that where there are care quality failures, hospitals learn to put such problems right much more promptly than they have done in the past. That is why we put in place buddying mechanisms and why we put trusts in special measures, to deal with issues quickly and effectively to ensure that hospital services are put back on track and patients can be properly protected.

--- Later in debate ---

[Jim Dowd]

rose—

[Andy Burnham]

rose—

[Dr Poulter]

I may give way in a few moments, but I need to make a bit of progress. The clause would extend the remit of a TSA to make recommendations that may apply to services beyond the confines of the trust in administration. The Secretary of State or, in the case of foundation trusts, Monitor, will be able to make decisions based on those wider powers. Where severe and prolonged problems exist, an administrator must be able to recommend a solution in the best interests of local patients. Only then can we resolve the situation in a sensible, holistic way and ensure safe and sustainable patient care. That is what the impact assessment said of the 2009 TSA regime, and something the Government are ensuring that we deliver, even though the previous Government failed to deliver it.

--- Later in debate ---

[Andy Burnham]

The Minister is being generous. He has made the argument all afternoon that he is doing what I was doing; he is just using the powers that I created. That is the crux of his argument. If that is the case, why did three judges rule that this Government had broken Parliament’s original intention when they passed those powers?

[Dr Poulter]

Quite frankly, it was because the right hon. Gentleman’s legislation was not worded effectively enough—[Interruption.]

--- Later in debate ---

[Andy Burnham]

I begin by thanking my shadow team, particularly my hon. Friends the Members for Leicester West (Liz Kendall) and for Copeland (Mr Reed), who have spent many hours trying to make sense of this unwieldy piece of legislation. I, too, want to thank members of the Public Bill Committee for their work, as well as the officials, Officers and staff of the House who enabled the Committee’s work to take place.

It is right also to pay tribute at this point to the Care and Support Alliance, a very important association of organisations working to be advocates and champions for some of the most vulnerable people in our society. The alliance worked with the previous Government and is working with this Government; indeed it works with all sides of the House. It can take some credit for some of the steps forward that are coming as a result of the Bill, and it is fair to say that there are some steps towards a better social care system.

I would argue that the Bill builds on the work of the previous Labour Government in that regard, particularly in the overdue recognition of carers. We welcome stronger legal recognition and rights for carers. We welcome better access to information and advice, which will make a difference to some people using the care system. The idea of portability—that if people move from one place to another, their entitlement to care goes with them—is a good principle and one that I put forward. We welcome the fact that it has been carried into the Bill. The principle of a cap on what people should pay for social care is in itself an important step forward. I recognise that but, as I will go on to say, we do not believe that all is at it seems.

There are measures in the Bill, as the Secretary of State said, to implement parts of the Francis report, such as the organisational duty of candour and moves to strengthen regulation. We welcome these steps but we would have encouraged the Government to go further.

The big problem with the Bill is the gap between what Ministers claim it does and what it actually does. It is not what it seems and it will not deliver on the claims made for it. Worse, it is no answer to the problems posed by an ageing society, and it is not equal to the scale and urgency of the care crisis that the country faces.

[Paul Burstow]

The right hon. Gentleman expresses concern about the care crisis. Why did he abstain in yesterday’s vote on the Local Government Association’s proposal that there should simply be an assessment of the adequacy of funding?

[Andy Burnham]

I do not think that the right hon. Gentleman is in a very strong position to talk about Members’ abstaining in votes on amendments. I shall say more about that shortly.

Let me now list three reasons for our argument that the Bill is not what it seems. First, as I have said, it is no answer to the care crisis. It proposes that a cap should be paid for by the restriction of eligibility for care, and the removal of care from some people who are already receiving it. Last week we heard from Age Concern that 800,000 people who had previously received support no longer received it. The problem is that local authorities are being asked to implement the system with no additional resources, and are therefore having to move funding from preventive social care to the administration and funding of the cap and the deferred payment scheme. Rather than taking from one area of social care to give to another, the Government should have put new resources into social care.

[The Minister of State, Department of Health (Norman Lamb)]

The right hon. Gentleman said a moment ago that the Bill removed care from some people by restricting eligibility criteria. Does he accept that although there is a national eligibility criterion—which is long overdue—any councils that choose to be more generous can do so, just as they can now?

[Andy Burnham]

If the Minister gave councils budgets that enabled them to be more generous, they might have a chance, but drastic cuts mean that they cannot provide care that is worthy of the name. He will know of the fears of organisations that represent disabled adults of working age. The Royal National Institute of Blind People, for instance, fears that the move to retrench eligibility criteria to cover only substantial and critical needs will remove care from people with moderate needs whose support currently enables them to continue to work.

[Barbara Keeley]

I understand that the Minister is to visit Salford tomorrow. Perhaps he would like to talk to Salford city council, whose budget has been cut by £100 million over the last three years, about how it might be more generous. I am glad that my right hon. Friend has mentioned carers and their new rights, but how hollow do those new rights seem to carers in Salford, given that 1,000 people will lose their care packages this year and 400 will not qualify for them? That is a direct result of what the Government have done.

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[Andy Burnham]

My hon. Friend’s intervention brings me to my second reason for thinking that the Bill is not what it seems. The changes in eligibility for social care expose more people to social care charges than was the case before the present Government came to office, and, as has been demonstrated by my hon. Friend the Member for Leicester West, those charges are increasing above inflation. More people are paying care charges, and paying them at a higher level. The care cap is not what it seems. In fact, as my hon. Friend has consistently argued, it is a care con. The Secretary of State said today that the Bill would give people certainty about what they would pay—

[Mr Jeremy Hunt]

indicated assent.

[Andy Burnham]

The Secretary of State says yes, but I am afraid that it will not. The £72,000 cap is based on a local authority average, not on the actual amount that people will pay for care. So no, the Bill will not give them that certainty. The Secretary of State also said that people would not lose everything to pay for care. Let us take him at his word, and assume that £72,000 is the maximum that a person can pay, and £144,000 is the maximum for a couple. In my constituency, that would indeed mean people losing everything that they had worked for, although it might not mean that in the Secretary of State’s constituency or in other parts of the country. The Secretary of State needs to be honest with people. That is why we are saying that the Bill is not what it seems.

[Norman Lamb]

Will the hon. Gentleman give way?

[Andy Burnham]

I will, but I think that the Minister should take account of that point, because it is quite important.

[Norman Lamb]

The right hon. Gentleman says that he would like the eligibility criteria to be more generous. Is he now committing himself to funding that?

[Andy Burnham]

I am not writing a budget at the Dispatch Box this evening. I will stand by our record of giving real-terms increases to local government. I warned at the start of this Parliament that if the effect of the Government’s promise of real-terms increases for the NHS—which have actually never materialised—was a raid on local government, that would be a short-term policy. It would mean more older people ending up in hospital and who then could not be discharged because there was not the care at home. That is exactly what is happening. It is a false economy. That is what we warned them about and they failed to listen.

[Andrew Percy (Brigg and Goole) (Con)]

Will the right hon. Gentleman give way?

[Andy Burnham]

No I will not, as the hon. Gentleman has not been here all afternoon.

The third area is the claims that the Bill will improve regulation. Let me ask a direct question: if this is about improving the quality of services, why remove from the CQC the responsibility to provide oversight of local authority commissioning? Why do that if this Bill is about improving regulation? Why leave local government free to do what they like at a local level—to commission for 15-minute visits or for staff on zero-hours contracts—when we have seen the failures at Winterbourne View and other places? Why remove that important role from the CQC?

[Mr Jeremy Hunt]

rose—

[Andy Burnham]

We have never had a proper answer to that. I hope we are about to get one.

[Mr Hunt]

Let me tell the right hon. Gentleman what this Bill does: it introduces the proper expert-led inspection of social care provision that was scrapped by his Government, so that we actually know when there are care problems and we sort them out.

[Andy Burnham]

The right hon. Gentleman has not answered the question. There was a responsibility on the CQC to provide oversight of local authority commissioning. This Bill removes it. Why does it do that? It is a backward step in my view.

The fourth area is that, in respect of the care data scheme, the Bill fails to provide the assurances the Government tried to herald in the press a few days ago—to borrow the Secretary of State’s words today, a “rock-solid assurance” that data could never be passed to commercial insurance companies. I do not believe it is possible to claim that new clause 34, which has now been added to the Bill, does that. It just has general aims around the promotion of health. That does not stop data being passed to private health insurance companies. Again, I do not think the Bill does what the Secretary of State claims it does.

The fifth area I want to challenge the Government on is the whole question we have just been debating. This goes to the heart of where the coalition began, which was that local people would be in the driving seat and local GPs would be in control. The coalition agreement said the Government would end centrally dictated closures. Well, they have ripped all that up this afternoon by passing clause 119 and keeping it in the Bill. They claimed they were just doing what we left behind. That is not the case, because the High Court told them otherwise. The High Court told them they had gone beyond the powers I had created in 2009. The Secretary of State was unable to answer that. He said everything was our fault—it is never their fault or his fault. Well, how about him listening to the Court? How about him reading the clause that we passed before he tried to close or downgrade Lewisham’s A and E? Would that not have been a good thing to do? He did not do that, however. He tried to plough on and downgrade a successful A and E in the teeth of opposition and he got found out. Yet he comes back here today and just thinks arrogantly he can ram the same powers back through this Parliament.

What we have seen today from the right hon. Member for Sutton and Cheam (Paul Burstow), who positioned himself as though he was going to make a stand for local involvement in the NHS, is the worst kind of collusion and sell-out of our national health service. Just as the Liberal Democrats voted for the Health and Social Care Act, again they have backed tonight the break-up of the NHS. In the last few days the right hon. Gentleman has been asking for all these signatures from all over the country—148,000 people to sign his petition—just so, it seems, that he could get a new job working within the coalition. I am not sure they are going to feel well represented this evening.

[Mr Hunt]

The shadow Secretary of State is bandying around some big words like “arrogant” so will he now show some humility and recognise that every single one of the 14 hospitals in special measures had warning signs when Labour was in office and Labour failed to sort out those problems?

[Andy Burnham]

We took action to address care standards in the NHS. The right hon. Gentleman is trying to politicise care failure. The Labour Government inherited the Bristol Royal infirmary scandal from the previous Conservative Government, along with the scandal at Alder Hey and the Shipman murders, but we did not try to politicise those failings. The Secretary of State is trying to politicise such failings today, however.

The Lib Dems have shown again tonight that they simply cannot be trusted to stand up for the national health service. There is only one party in this House that will do that, and that is the Labour party represented on these Benches. The next Labour Government will repeal the Health and Social Care Act and restore the right values to the heart of the NHS. In so doing, we will also repeal clause 119 of this Bill. We will take the powers that the Secretary of State has taken for himself today and hand them back to local people.

We will not get the care that we want until we are able to face up to the care crisis that this country now has. Our argument is that the full integration of health and care is the only way to reshape services around the person. That is the only way to go, and we will give a full green light to NHS organisations to collaborate and integrate, instead of working with the market regime that this Government have introduced. We have had the ludicrous spectacle of the Competition Commission telling two hospitals that wanted to collaborate that they could not do so because it would be anti-competitive. That is the reality of the NHS that this Government have created. That is the nonsense that people are facing on the ground. Only when we repeal the Health and Social Care Act and get rid of the powers that the Secretary of State has taken for himself today will we put the NHS back on the right path, away from the path towards fragmentation and privatisation, and begin to build a 21st-century NHS.

[Several hon. Members]

rose—