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

Baroness Masham of Ilton Excerpts

Wednesday 24th April 2013 Lords Chamber

[Baroness Jolly]

My Lords, many noble friends have already addressed the main issues of the debate and I do not intend to delay the House for long. I will confine my remarks to guidance—currently in preparation by Monitor—the role of Monitor in the process, and what the effect would be if the Prayer to Annul by the noble Lord, Lord Hunt, were successful. When we had our first meeting with the Minister about our concerns, we expressed our anxiety about the language. Laws they may be, but they did not have to be impenetrable and we improved the situation with the second draft, in particular, Clause 2 and Clause 5. I thank my noble friend Lord Clement-Jones.

The key issue, which my noble friend Lord Howe picked up earlier, is that we insisted that the guidance needs to be absolutely clear and unambiguous. It is written by Monitor, but it is signed off by the Secretary of State. We said that it needed to be a product not just of Monitor’s work, but also of various stakeholders’.

It also needs to contain a worked series of case studies so that people could see how things pan out in certain situations. During the Recess, the Secretary of State and my honourable friend the Minister, Norman Lamb, met some of the stakeholders and I understand that further meetings are in hand. But, of course, there is an open consultation as well. This has meant that the guidance is not published with the regulations. That is seriously to be regretted. However, if the end result is a workable set of guidelines with real case studies, time is the price that has to be paid.

What of Monitor’s other role, that of regulating and policing contracts? Until 1 April, much of NHS commissioning covered by procurement law was undertaken by PCTs. That meant that a supplier could take a PCT to court if they lost a contract unlawfully, and seek compensation and damages. That could be a waste of time and taxpayers’ money, damaging in one way or another to patient care.

After 1 April, PCTs, which could be ordered to do anything by the Department of Health, were replaced by CCGs, which could not. If we want to continue to keep the NHS out of the courts, something needs to have the same power over CCGs in relation to procurement as the Department of Health had over PCTs. That something is Monitor.

However, Monitor is not a body under the control of the department. Instead, it is directly under the control of Parliament. Instead of the department being able to tell Monitor to continue to enforce the PRCC—principles and rules for co-operation and competition—Parliament must do it for Monitor. Thus we arrive at the furore around the Section 75 regulations—Parliament’s way of telling Monitor to enforce the PRCC within the NHS. The regulations, like the PRCC, reflect the overarching requirements of EU procurement law.

I now come to a point that was picked up by the noble Baroness, Lady Hollins. In the general debate until today, much has been made of the opinion of this or that lawyer. Often, any one lawyer gives an opinion that reflects the view of whoever instructs them. We end up with as many views and opinions as we have lawyers. Therefore, with due respect to noble members of that profession, we need to inform our own opinions on this debate.

Without these regulations, all we have is EU competition and procurement law and the courts. There is no direction about the nature of services to be commissioned, and CCGs are completely unprotected and unsupported. What the regulations are not is a signal that the NHS is up for sale. The NHS will still be free to all at the point of need.

The purpose of these regulations is twofold. First, they are a legally binding tool, along with detailed guidance, to be used by the CCGs and NHS England when commissioning the best possible services for their patients and facilitating an integration of those services—services which put patients first. The regulations enforce that patient care is about competition and they outlaw cherry picking and vested interests. Secondly, to put it bluntly, they are to keep the NHS out of the courts. When we decide whether to support this Motion or not, those two conditions are precisely what we would do well to keep in mind.

[Baroness Masham of Ilton]

My Lords—

[Lord Adebowale]

My Lords—

[Noble Lords]

Minister!

[Baroness Masham of Ilton]

Could I ask the Minister just two questions on behalf of patients? I had a postcard today from someone whose mother was a Minister in your Lordships' House. She has had cancer twice, so values the skills of the NHS. I quote from the postcard. It states:

“I honestly believe patients will suffer if all services have to be put out to tender. This wastes valuable medical professional time and removes patient choice”.

I would like to ask the Minister, will patient choice be dispensed with? There are many concerned people. I hope their fears will be allayed tonight. The other question is: will this regulation become a gift to lawyers?