NHS: New Junior Doctor Contract

Lord Prior of Brampton Excerpts

Monday 18th April 2016 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health (Lord Prior of Brampton) (Con)]

My Lords, with the leave of the House, I shall repeat as a Statement the response to an Urgent Question given in the other place by my right honourable friend the Secretary of State for Health on junior doctors’ contracts. The Statement is as follows.

“Mr Speaker, this House has been updated regularly on all developments relating to the junior doctors’ contract, and there has been no change whatever in the Government’s position since my statement to the House in February. I refer members to my Statement in Hansard on 11 February and to answers to Parliamentary Questions from my ministerial colleagues on 3 March, which set out the position very clearly. Nevertheless, I am happy to reiterate those statements to the honourable lady.

The Government have been concerned for some time about higher mortality rates at weekends in our hospitals, which is one of the reasons why we pledged a seven-day NHS in our manifesto. We have been discussing how to achieve this through contract reform with the BMA for over three years without success. In January, I asked Sir David Dalton, the highly respected chief executive of Salford Royal, to lead the negotiating team for the Government as a final attempt to resolve outstanding issues. He had some success, with agreement reached in 90% of areas.

However, despite having agreed in writing in November to negotiate on Saturday pay, and despite many concessions from the Government on this issue, the BMA went back on that agreement to negotiate, leading Sir David to conclude that,

“there was no realistic prospect of a negotiated outcome”.

He therefore asked me to end the uncertainty for the service by proceeding with the introduction of a new contract without further delay. That is what I agreed to, and what we will be doing. It will start with foundation year 1s from this August and will proceed with a phased implementation for other trainees as their current contracts expire, through rotation to other NHS organisations. Let me be very clear: it has never been the Government’s plan to insist on changes to existing contracts, but only to offer new contracts as people change employer as they progress through training. This is something the Secretary of State with NHS organisations as employers are entitled to do, according even to the BMA’s own legal advice.

National Health Service foundation trusts are technically able to determine terms and conditions, including pay, for the staff they employ. However, the reality within the NHS is that we have a long tradition of collective bargaining, so in practice trusts opt to use national contracts. Health Education England has made it clear that a single national approach is essential to safeguard the delivery of medical training, and that implementation of the national contract will be a key criterion in deciding its financial investment in training posts. As the Secretary of State is entitled to do, I have approved the terms of the national contract.

This Government have a mandate from the electorate to introduce a seven-day NHS, and there will be no retreat from reforms that save lives and improve patient care. Modern contracts for trainee doctors are an essential part of that programme, and it is a matter of great regret that obstructive behaviour from the BMA has made it impossible to achieve that through a negotiated outcome”.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the Minister for repeating the Answer given in the other place, which I have listened very carefully to. It now seems abundantly clear that the Secretary of State does not have the power in law to impose a new contract on junior doctors. The problem is that the Secretary of State’s various Statements over the last few months could not be interpreted in any way other than that he thought he had the power and he was going to impose a contract. The significance of this is that the junior doctors took him at his word. The importance of that is that the Junior Doctors Committee of the BMA took the unprecedented decision to escalate industrial action on the back of his apparent decision to impose the new contract when talks collapsed.

The noble Lord, Lord Prior, knows that I have absolutely no argument with the development of fully comprehensive seven-day services in the NHS. However, the tragedy is that the very group of staff on whom so much is now dependent for clinical out-of-hours care—the junior doctors—has become utterly disenchanted with the way this has been handled. We have reached a very serious situation, and I very much fear for the future of the NHS and what is happening. I just say to the noble Lord that surely, even now, the Government need to find a way through. Interestingly, in the response, which has come from Ministers in the other place, there is a recognition of the benefit of collective bargaining. Is it not time to give collective bargaining another go?

[Lord Prior of Brampton]

My Lords, the noble Lord has raised two substantial points. The first is the difference between introduction and imposition. The fact is that, in the context of the NHS, where there is really only one offer, the difference between introduction and imposition is very small. Technically, it is true that individual employers are responsible for its imposition, but in reality, as the noble Lord will know from all his years in the Department of Health, the Secretary of State has considerable powers in this matter. I do not think the noble Lord would want all trusts to cut their own deals locally—there has to be an actual contract. It is true that when the legislation for foundation trusts was brought forward by the noble Lord’s Government a few years ago, they were given the power to negotiate their terms and conditions locally but, with the exceptions of, I think, Southend and possibly Guy’s and St Thomas’, they have chosen to stick with the national contract.

On the noble Lord’s last point about a way through, there are no winners from this dispute. The patients are very clear losers, and it is tragic that we have got to the situation that we have. The threshold for withdrawing emergency cover from hospitals needs to be a lot higher than the one the junior doctors are adopting on this occasion.

[Baroness Walmsley (LD)]

My Lords, this Statement comes at a time when the latest figures for A&E performance are the worst ever—1% lower, we were told last week, than the figure for January, which was the previous worst ever. The staff are very close to exhaustion. Thirty-five per cent of the doctors in this country were born abroad—the highest level in the OECD. With this very long-running dispute, many junior doctors are now saying that they are going to go abroad, and the Government have not told us whether they will increase the number of places for trainee doctors to try to compensate for that. We, and the doctors themselves, really need to know.

I would also like the BMA to tell us what percentage of its members now want to strike, because I think that it has given us old figures. However, if the Government want a seven-day NHS, this is absolutely the wrong time to target the junior doctors. They need to do some proper negotiation and not hold the sword of Damocles over the heads of some of the most important public servants we have.

[Lord Prior of Brampton]

My Lords, the noble Baroness talks about a proper negotiation. This negotiation has gone on for three years and there have been 75 meetings about this contract. It is hard to know what a proper negotiation is when you have that number of meetings over that period of time. The junior doctors may not recognise this but the Government feel that 73 different concessions were made during that period. In many ways this has gone on for too long, and that is why, when Sir David Dalton got involved towards the end of the contract negotiations, his advice was, “You’ve got to settle this”. We cannot go on and on negotiating and discussing these matters.

On the other point that the noble Baroness raised, the pressure on our emergency services is huge at the moment. She is right that the A&E performance in January was very poor, but it is simply the case that demand on our A&E departments is huge.

[Lord Elystan-Morgan (CB)]

My Lords, is not the reality of the situation that for many months the Secretary of State has used the language of coercion rather than compromise? It is abundantly clear that he never had the statutory authority to impose such a contract of service on the doctors. At what point was he first advised that he had no such authority?

[Lord Prior of Brampton]

I do not think that the Secretary of State has been under any misapprehension about his powers in this matter. The BMA, on behalf of the junior doctors, is judicially reviewing his powers, but those powers are clearly set out in Section 1 of the 2006 Act. It is our position that he has always had those powers, but we expect that to go to a judicial review on 8 and 9 June.

[Lord Myners (CB)]

My Lords, does the Minister commend the Government’s handling of this matter to private sector employers?

[Lord Prior of Brampton]

I think that all good employers recognise that having the trust and confidence of their staff is fundamental. No employer, government or private, would wish to have the outcome we have in this situation. As I said earlier, there are absolutely no winners from this dispute, and the Government regret as much as anybody that we have come to this particular pass.

[Lord Winston (Lab)]

Does the noble Lord agree—I am sure he does—that the great majority of junior hospital doctors, whatever the situation, are deeply altruistic people and remain so? They see this strike as part of that altruism, as is very clear from talking to them, and I am sure the Minister would agree about that. Does he not feel that one risk is the long-term damage not just to the health service but as regards people who are thinking of coming into the health service in the future? The young people whom I see in universities and even in schools are now asking me, “Should I actually be doing medicine?”. Does the noble Lord agree that some kind of compromise at this stage would be better, as it might well save money, rather than cause more anguish and more money to be spent in the long term?

[Lord Prior of Brampton]

My Lords, I certainly agree that some of the best and finest young people in Britain go into medicine. It is a wonderful vocation—I use the word “vocation” advisedly. We have had three years of trying to come to a compromise and there comes a point in any negotiation when you have to draw stumps, although it is very unfortunate and very sad when that happens. Over that three-year period there were opportunities for both sides to come to an agreement and it is tragic that we did not do so, but I feel that after three years the Secretary of State had little option but to accept the advice of Sir David Dalton.

[Baroness Donaghy (Lab)]

My Lords, as a former chair of ACAS, I admit that I have never heard ACAS say, “We have reached the end of negotiations”, although that may be one individual’s view. Sometimes negotiations take a very long time and a lot of patience. If these negotiations have been done in the context of 99% of the population thinking that this contract could be imposed and then, all of a sudden, as we have heard this afternoon, it cannot be imposed, I wonder whether that climate has affected the negotiations. Perhaps ACAS can be brought back in to see whether it can bring about a settlement.

[Lord Prior of Brampton]

The noble Baroness will know that ACAS was involved earlier on in the negotiations, and it was under the auspices of ACAS that Sir David Dalton did his negotiations. I just repeat what I said before: theoretically you can go on with these negotiations in perpetuity. There was a huge desire on the part of the Government to settle this dispute and, as I said, we deeply regret that we were unable to do so.

[Lord King of Bridgwater (Con)]

My Lords, the Statement referred to Sir David Dalton—