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

Baroness Williams of Crosby Excerpts

Wednesday 24th April 2013 Lords Chamber

[Lord Walton of Detchant]

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

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

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

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

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

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

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

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

[Baroness Williams of Crosby]

My Lords, it is for me a great privilege to follow the noble Lord, Lord Walton of Detchant He made an astonishingly wise and helpful contribution to debates in this House on the Health and Social Care Act. I found myself in exactly the same position as he was in. I have a total commitment to the National Health Service. That has not changed in any way. In my whole life none of my family has ever used any other medical service. But I cannot find in the most careful reading of the regulations and our long debate on these two sets of regulations anything that bears out the widely spread view—extensively spread by the social networks—that this is all about bringing to an end the National Health Service as a public service and introducing overall privatisation.

I will quickly say three things. First, the Liberal Democrats intervened immediately when we saw the first set of regulations, laid on 11 February and promulgated in the House on 13 February. We did not like them at all. The day that the House came back, my noble friends Lady Jolly and Lord Clement-Jones were at the Minister’s door, asking him to see us that same day. Although there were widespread press discussions about how the campaigners and the Opposition had essentially stopped the regulations, it was not true. At the end of that discussion on 25 February, the day that the House came back, the Minister had listened closely to everything that we had to say and agreed at the end that the regulations could be misunderstood, and that there was therefore a strong case for looking again at making them clearer.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I do not understand that. Clearly, if a CCG decides that a potential contract meets the single provider test in regulation 5, for instance, a disappointed provider can go to the courts in any case.

[Baroness Williams of Crosby]

In this particular set of regulations we are giving statutory underpinning to Monitor in a way that will mean, as it did previously, a much greater opportunity to deal with most objections on the spot and not have them carry on into the courts at great expense to the taxpayer and to patients. If we turn it down tonight it will leave us without that structure altogether and we will go back to where we were.

In conclusion, while I have very strong sympathy with the view of the noble Lord, Lord Owen, that the National Health Service of the 1980s was a more true state service than anything today, I am afraid we cannot go back; we are where we are. The best thing we can possibly do is to make patients’ interests the very centre of what the NHS is all about and to recognise that this new route is the way we are going. It could, however, be very exciting and it would lead to a very much more accountable NHS than we have had in recent years.

[Lord Davies of Stamford]

We have had a very thorough and memorable debate on this important subject, and that is not a bad thing. It is striking that the House should be so full on this occasion, because the NHS is very close to all our hearts and to the hearts of the whole of this country. We had a very powerful speech by the noble Lord, Lord Owen, and against that we have had attempts by a spokesman on behalf of the coalition, and by the noble Lord, Lord Walton, to whom we always listen with great respect on these occasions, trying to reassure us that things are not quite as alarming as they appear to be—not quite as alarming as the BMA, which the noble Lord, Lord Walton, once presided over in a very distinguished fashion, appears to think.

Before we accept those blandishments and reassurances, we need at least four very specific assurances from the Government tonight. One is on the matter very well raised by my noble friend Lord Hunt. Clause 5 is extremely weak in providing any protection against the absoluteness of the requirement for CCGs to go out to tender. It simply says that they do not have to do so if in fact there is no other party able to provide the relevant service. As the noble Lord, Lord Hunt, very clearly said—and he is absolutely right—in a large urban area such as London or the West Midlands, there will always, or almost always, be somebody else who is technically capable of delivering the service, so that is extremely weak protection. I am not very reassured by what the noble Lord, Lord Walton, said on that subject. It is no use saying “We’ve got guidance”. We are now passing the law, and guidance cannot override the law. What is more, when we have changed the law you can be absolutely certain that an awful lot of lawyers and some very aggressive companies will be waiting to use this law to try to force open a business opportunity.