Health and Social Care (Re-committed) Bill

Owen Smith Excerpts

Wednesday 7th September 2011 Commons Chamber

[Paul Burstow]

I am grateful to my hon. Friend for that intervention. If he listens carefully to what I am saying, he will hear that I am developing an argument that will go towards answering that question. Rather than trying to answer it in a very small way now, I would rather answer it in a comprehensive way through reference to what I had planned to say to the House.

As I was saying, hon. Members should ask themselves how the Secretary of State would be able to wash their hands of the NHS while simultaneously being legally required to deliver on all the duties I have just outlined. Crucially, the Secretary of State also retains the duty to promote a comprehensive health service, which dates from the Act that founded the NHS in 1946 and has been unchanged by this Bill. The Secretary of State will also have the duty to secure that services are provided for that comprehensive health service and will have failed in that duty if they are not.

The Secretary of State also has the ability—the obligation, in fact—to set goals and priorities for the NHS through the mandate. That will set out what the Secretary of State wants the NHS to deliver, which will be updated every year. It will be widely consulted on and Parliament will scrutinise it, for the first time ever giving Parliament a detailed say in what the NHS is tasked to deliver.

The Secretary of State has further powers in addition to the mandate to impose standing rules by which the NHS commissioning board and the clinical commissioning groups must operate, which will be subject to scrutiny and control by Parliament—a power Parliament does not currently have. What is changing, however, is the Secretary of State’s relationship with the NHS in terms of the role of Ministers in the commissioning and provision of services to the NHS. The Government believe that it should not be the job of Ministers to provide directly or commission NHS services, either. It should be the role of front-line professionals, who should have the freedom to focus on driving up quality of care, free from interference by Ministers in operational decisions—something that all parties in this House have said that they want to see.

We understand that all Government legislation has a responsibility to foresee the unforeseeable, to ask questions about the worst-case scenario and to ensure that the answers stand up to scrutiny. That is why this Bill contains a number of back-stop provisions to make it absolutely certain that any future Secretary of State will not be able to turn a blind eye to failings of service provision, so we have ensured that the Secretary of State has the power to step in if the board, or Monitor, is failing to deliver on its duties, including any duties imposed on the board through the mandate.

Finally, in the event of a significant emergency such as a pandemic, the Secretary of State will have powers to direct any commissioner or provider of NHS services.

[Owen Smith (Pontypridd) (Lab)]

In the event where there is not an emergency, will the Minister confirm that under the new provisions the Secretary of State will not have the power, as he has, to direct a commissioning group to do what he thinks is appropriate for the people in that area?

[Paul Burstow]

No, he will not have powers of direction. Of course, powers of direction are not subject to any form of parliamentary scrutiny and can be issued by a Secretary of State by fiat. In future, this House, through regulations, will be able to look at and agree—or not—standing rules that in most effects will have the ability to direct clinical commissioning groups and the NHS commissioning board on a wide range of matters. I direct the hon. Gentleman to clause 17, which sets those out at great length.

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We are also making a range of technical amendments to these clauses, with which I will not detain the House. If Members wish to have further information about those matters, I should point out that they were the subject of detailed briefings published last week to accompany the amendments.

[Owen Smith]

I am grateful to the Minister for his contribution. Questions about the Bill just keep coming. That is how I feel on rising to speak. We have had eight months of debate on it. So far, more than 1,500 amendments have been tabled and we have learned today that more are coming, which was news to us at least. We have two—soon to be three—versions of the Bill, as well as a very real issue between Ministers and the Opposition over how it ought to be interpreted and what tone we ought to take when debating it. I would like to address some of those questions and talk about the tone. I also want to outline how we are interpreting the Bill and state that we feel very sincerely that the Government are misrepresenting what is in it.

By way of illustration, I shall pick up on a few things that the Minister said, which I feel either raise further questions or misrepresent what is in the Bill. I want to discuss in particular the issue that was debated by him and my hon. Friend the Member for Warrington North (Helen Jones)—whether, under the aegis of the Bill, the meetings of CCGs are to be held in public. He was very clear about that. In fact, he was so clear that he had his Liberal Democrat friends bouncing up and down, shouting, “Must, must! They must meet in public. Haven’t you read the Bill?” He went on to suggest that my hon. Friend had perhaps read an earlier iteration of the Bill. I know her well enough to know that she does her homework and she will indeed have read the second version of the Bill. There have been so many that it is quite easy to lose track. She will also have read schedule 2 of that Bill, which states—I will quote directly; I will not just make it up, like the Minister—

“The provision made under sub-paragraph (3) must include provisions for meetings of governing bodies to be open to the public, except where the consortium considers that it would not be in the public interest to permit members of the public to attend a meeting or part of a meeting.”

Meetings will therefore be held in public unless the consortium decides on a whim that it is not in the public interest for the public to come to the meeting—that is, for the meeting to be held in public. That is the tone that Ministers have set throughout the Bill. It is misrepresentation. It relies on the fact that there are thousands of words, acres of clauses and endless amendments. Ministers are trying to bore people into failing to look at the details, but I am far too much of an anorak; I will keep reading the Bill, keep looking at the amendments and keep drawing them to the public’s attention.

[Helen Jones]

Does my hon. Friend agree that experience shows that when bodies are left to determine when it is in the public interest not to know what is going on, they usually do so on the basis of what would be embarrassing to them? Does he not fear that when difficult decisions are to be taken, commissioning groups will shut down public debate by making their meetings not open to the public?

[Owen Smith]

One needs to look at the top of institutions in this country—at the Government, and the extent to which Governments of all stripes choose what they are going to reveal to the public and what they deem not to be in the public interest. That standard is set and applied throughout public and private bodies in this country and elsewhere.

I have no doubt that there will be many instances when CCGs will determine that it is not in the public interest that the public be admitted to their meetings—in particular, for example, when they are discussing hospital reconfigurations or closures, and changes to public services that people consider to be vital in those areas. CCGs must consider all those crucial issues, but they must do so in a transparent manner, which is what we said in Committee last time round, on the previous iteration of the Bill. We have said it again and the Government still have not answered the point to our satisfaction. I call upon the Minister to amend schedule 2 once more. There is time to do so in the other place and he may well want to give that consideration.

[Mr David Ward (Bradford East) (LD)]

As a shadow Minister, is the hon. Gentleman aware that there is a standard clause in the standing orders or constitution of every public body and every local authority throughout the country? It is for those bodies to justify what is in the public interest. That is standard in public sector organisations across the country. He is trying to make something out of nothing.

[Owen Smith]

No, I am trying to make a point about what the Minister said at the Dispatch Box not five minutes ago, which was that CCGs must meet in public. I am pointing out that that is not accurate. They do not always have to meet in public; they may choose not to. Whereas that may apply across the board in other public institutions, these are crucial new bodies about which there are grave concerns. We on the Opposition Benches are concerned to ensure that they should be obliged to meet in public on all occasions.

[Paul Burstow]

My hon. Friend the Member for Bradford East (Mr Ward) is right. That is why the outrage was expressed as it was. This part of the Bill and the schedule have the same effect as the Public Bodies (Admissions to Meetings) Act 1960. That Act does not say in a blanket way that every meeting must be held in public. It allows local authorities to exercise judgment about confidentiality. We are applying the same principles in that regard in exactly the same way as to PCTs, with the additional provision that for the first time all these arrangements must be published.

[Owen Smith]

I am grateful to the Minister for that further intervention, just as I assume that he is grateful for the intervention of the civil servants in the Box, who must have passed him a note. Clearly, he was not aware of that earlier. When he said that CCGs must meet in public, he was under the impression that that was the case.

[Nicky Morgan (Loughborough) (Con)]

Will the hon. Gentleman give way?

[Owen Smith]

No. I shall move on now. We have debated the topic long enough.

[Andrew Gwynne (Denton and Reddish) (Lab)]

My hon. Friend is right to be concerned about the way this part of the Bill is drafted. It is incredibly open-ended for the consortium to decide what is exempt from public knowledge. That is quite different from the situation in local government in England, where the Local Government Act 1972 prescribes what is exempt from the press and the public.

[Owen Smith]

Indeed. The key difference is that it is for the clinical commissioning groups, in establishing their constitution, to determine what the rationale will be for allowing the public in or not. That is not set down in statute or in direction from the Minister or the Secretary of State. It is for individual CCGs to determine when they should let the public in. I give way to my colleague on the Bill Committee.

[Nicky Morgan]

I am grateful to the hon. Gentleman. I remember discussing with him whether he was a lawyer, and he was proud to say that by background he was not a lawyer. As he knows, there will be occasions when a clinical commissioning group is considering a matter which is sub judice. It could be an employment law matter; it could be a confidential matter relating to a patient—for example, a mental health patient for whom there has been very sensitive care. There will be times when it is appropriate and in the public interest and that of relatives—[Interruption.] I am making the point to the hon. Gentleman, not to those on the Opposition Back Benches. There will be occasions when it is appropriate for the CCG not to meet in public, as I am sure he will concede as a matter of common sense.

[Owen Smith]

I will not dispute that there may be occasions when it will be appropriate for the CCG to meet in private, but that is not what the Minister said. My point was to do with the tone and the misrepresentation that has been systematically applied by those on the Government Benches. That is the difference.

[Dr Wollaston]

rose—

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[Owen Smith]

I shall not give way any more on that issue. [Interruption.] I was enjoying it too, although I would be surprised if the Minister was. I shall move on, if I may, to questions. As I said, there are many questions.

The Minister said today with his usual candour and clarity that the vast bulk of health care will in future be delivered by NHS services. That is a new one on me—“the vast bulk of health care”. That raises two questions. Will he characterise what he means by “the vast bulk”, and what he means by “NHS services”? In a world in which we will have a much more mixed economy, with a much greater mix of public and private providers working under the banner of the NHS, it is far from clear whether those things will be provided through what we have understood traditionally to be a public NHS or through some new hybrid NHS that the Minister is cooking up in the laboratory at the Department of Health.

The Minister said a moment ago that there were many amendments. He is a master of understatement, as ever. There are about 100 amendments in the first group, and a further 100 or so to be debated later today—part of the 1,000 amendments that have, extraordinarily, been tabled at this stage of the Bill, eight months after it first appeared.

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[Paul Burstow]

Is it still the Opposition’s policy to seek a division between the role of commissioning or purchasing health services and the provision of those services? Does the hon. Gentleman believe in that split?

[Owen Smith]

Yes. The current situation is clear: the Secretary of State has a legal duty placed upon him in the legislation to secure and provide—not just to promote—a comprehensive health service in this country, and to issue direction to PCTs and SHAs, such that they so do. Those two crucial aspects of the current legislation are being changed in the Bill, and I intend to discuss them in a moment.

In version 1 of the Bill, the Government were less coy, because it actually excised section 1 of the original 1977 Act. After the deluge of criticism, however, they decided that they needed to put it back in, making it explicit, as they put it, that the Secretary of State will be responsible, as now, for promoting a “comprehensive health service”.

Section 1 of the Act was duly reinstated, as was the duty to promote, but there was a critical change, in clause 1(2) of the new Bill, which diluted the traditional duty to provide and secure. Ultimately, it placed a duty on the Secretary of State only to

“exercise the functions conferred by the Act so as to secure that services are provided”.

I shall come on to the reason why that is significant, but equally significant and allied to it was the retention—against the advice of Opposition Members and many others—of clause 10, which amends section 3 of the 2006 Act, thus keeping commissioning bodies, not the Secretary of State, as the parties with a legal duty to provide health care in England.

The net effect of those changes—despite what the Minister said earlier, and despite what the Secretary of State has said on several occasions, including notably on Second Reading—is no change. The Secretary of State is still, as the Minister put it, washing his hands by divesting himself not of the NHS but of a direct duty to provide a comprehensive health service. That is the distinction which the Minister failed to make today. The Secretary of State is palming off that precious duty, which has been placed upon successive Secretaries of State, and handing it on, via the mandate, to a quango and to unelected commissioning bodies.

[The Secretary of State for Health (Mr Andrew Lansley)]

If the shadow Minister is so concerned about the Secretary of State’s legal ability directly to provide services, will he answer me a question? Does he know the last time the Secretary of State for Health actually directly provided any services? In the Department of Health, we cannot find out when it was.

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[Owen Smith]

With the greatest respect to the Secretary of State, who I have to confess knows a lot about the NHS and about the health service in this country, I think that that question is completely erroneous—a total red herring. As I said earlier, the practical reality is that the Secretary of State delegates—[Interruption.] No, no, no. The Secretary of State delegates to PCTs and SHAs his powers to provide, but, as I am going to tell the Secretary of State, he will know that under the aegis of this new Bill he will not have the power to direct clinical commissioning groups to do what he says, so he will not have a direct personal duty to provide. On the courts, we heard another interesting thing earlier from the Minister of State. He said that it was okay, because the Secretary of State will be able to justify in court when he directs a CCG to act. That is very important, and I am keen to hear the Secretary of State’s response to it, but I do not think that he has one that will convince us.

[Mr Lansley]

The hon. Gentleman has admitted that for decades the Secretary of State has not directly provided services, and I know that that is true. The issue is about having a legal duty, not to provide services but to secure the provision of services. He admits that that is done through delegation, which is in the structure of the Bill through the delegation of that responsibility to the national health service commissioning board and the CCGs. The mandate, which my hon. Friend the Minister has clearly explained, is much more transparent and accountable to Parliament for the manner in which the Secretary of State secures the discharge of those duties.

[Owen Smith]

With respect, there is not a legal duty on the Secretary of State to provide, as there has been in successive health Bills. When Bevan talked about hearing the bedpan dropped on the ward in Tredegar, he did not mean that he wanted to pick it up. [Interruption.] I do not know whether the Secretary of State wants to listen. Bevan did not mean that it needed to be picked up by the Secretary of State, but he certainly meant that he would like to be able to direct those responsible operationally for picking it up so to do.

The critical difference in this Bill is that the Secretary of State will divest himself of not only the duty to provide that service, but the power to direct the operational parts of the NHS, save for—[Interruption.] The Minister is waving his head, nodding or something; I know what he is going to say. Under the Bill, save for in cases of crisis or emergency, the Secretary of State will not have responsibility for running the day-to-day operations of the NHS.

[Paul Burstow]

The hon. Gentleman is wrong again. Unlike the previous Government, who were happy to have directions that did not have any parliamentary accountability, this Government are putting in place the ability, through regulations, to set the standing rules for the NHS, which, as set out clearly in clause 17, include all the issues that the hon. Gentleman is concerned about and show that the Government are committed to ensuring that there is a comprehensive health service.

[Owen Smith]

As the Minister has just confirmed by omission, there will be no power to direct and therefore no power to deliver absolutely a comprehensive, universal health service as we have come to expect and understand it. Those are the key differences. [Interruption.] The Minister can shake his head, but that is an accurate interpretation of what has happened.

[Rosie Cooper]

My hon. Friend has been talking about mandates. Will he explain under what mandate and how the Secretary of State is implementing all these structural changes? The House has not voted on them and the process started before the Bill came to the House. You are making structural changes, damaging the health service and making it impossible—

[Rosie Cooper]

Forgive me. I am for ever doing that, and I must stop. In essence, I am saying that the Secretary of State and Ministers keep talking about mandates and what they will and will not do, yet they are disregarding everything because they are implementing the Bill before it has been sanctioned by the House or the other place.

[Owen Smith]

I am grateful to my hon. Friend for that intervention. As she will know, the Government have no mandate for any of these things—they were not in the manifesto, the election or the coalition agreement. There is a mandate, but not one to effect these sorts of changes. That is another disgrace given how large the changes are.

I am going to move off this issue, but I will conclude by reading back to the Government their own words, which make it absolutely clear what they are doing in getting rid of direction. Paragraph 66 of the explanatory notes states:

“Currently, the Secretary of State is directly responsible for providing or securing the provision of all health services as set out in the NHS Act, a function which is largely delegated to Strategic Health Authorities and Primary Care Trusts…However, the new commissioning structure proposed by the Bill means that this would no longer be the case.”

The explanatory notes also state that

“functions in relation to the health service are conferred directly on the organisations responsible for exercising them”.

Effectively, the Secretary of State will move on and his focus will shift to public health.

[Paul Burstow]

I want to be absolutely clear about this. The hon. Gentleman is happy with an arrangement that allows the Secretary of State to make directions to the NHS that do not require him to come to this House to account for his actions—is that correct?

[Owen Smith]

I am happy—we are happy—with the Secretary of State being properly, publicly accountable through this House and having a legal duty placed on him to secure and provide politically accountable health services in this country. We are deeply concerned that the changes envisaged in the Bill, which radically alter the nature of the NHS, will not be able to be held to account through the Secretary of State in future Parliaments. That is our profound concern about the line of direct political accountability that so many of the Minister’s hon. Friends share, which is why they have tabled amendments to that effect and why they have repeatedly raised these concerns in the Bill Committee and elsewhere. The Minister does not have those concerns, but many other Liberal Democrats do.

[Andrew George]

I have to say that I entirely respect my hon. Friend the Minister. The hon. Gentleman’s point echoes what I said earlier in contradicting the Department of Health’s claim that the original 1946 Act did not have a requirement to provide or secure services. My quote provided evidence that that requirement has always been there. The Department also claims that because of the changes it is no longer legally acceptable for the Secretary of State to have that responsibility, but that issue has not been properly addressed. Would the hon. Gentleman care to deal with the point that it may no longer be legally acceptable for the Secretary of State to have that duty?

[Owen Smith]

As I said earlier, or rather as somebody said on my behalf, I am not a lawyer—I am a historian. As a historian, I agree with the hon. Gentleman that the 1946 Act does indeed say:

“provide or secure the effective provision of services”.

He was entirely right in that, and I could not understand the response from the Minister.

The key thing is that eight months, two Bills and 1,500 amendments later, we are still debating clause 1 and its legal interpretation. That is testament to just how badly botched this Bill has been and just how alarming it is for many people—patients and NHS staff—that we, the legislature, do not understand, or have divided views about, our understanding of the critical responsibility of the Secretary of State.

[Steve McCabe]

Before my hon. Friend moves on to the next section of his speech, perhaps I can return to the question of a mandate. Given that this is such a botched Bill, given what he says about the tone of the proceedings, given that at this stage nobody seems to understand exactly what are the implications of some of the Government’s claims, given the fact that the Government are not willing to entertain people’s legitimate concerns, and given that there is no mandate in either Government party’s manifesto for this Bill, the other place is presumably not bound by the Salisbury convention, and if the Government will not entertain those concerns here, it will be the duty of the other place to address them.

[Owen Smith]

It will. I have no doubt that the very many lawyers in the other place will have a field day in addressing these issues—just as, we fear, lawyers the length and breadth of this land will have a field day, not only during the passage of the Bill but for many years to come. That is because so many things will be contested, not only relating to the issues we are debating but, far more importantly, in relation to competition, which we debated yesterday, where it is undoubtedly the case that decisions that have hitherto been made to provide services from within the family of the NHS will be challenged by carpetbaggers—profit seekers—from outwith the NHS. Under the future provisions, those issues will need to be tested in the courts. The Government have conceded that on several occasions, and I am sure that they would do so today if they were asked.

Finally on the issue of the Secretary of State, and once again to hammer home the point that this is not just Labour scaremongering and that lawyers will be involved at every step of the way, I draw Members’ attention to the independent legal opinion that was provided by Stephen Cragg QC. Paragraph 1 of the executive summary states:

“It is clear that the drafters of the Health and Social Care Bill intend that the functions of the Secretary of State in relation to the NHS in England are to be greatly curtailed.”

It goes on:

“Effectively, the duty to provide a national health service would be lost if the Bill becomes law. It would be replaced by a duty on an unknown number of commissioning consortia with only a duty to make or arrange provision for that section of the population for which it is responsible.”

It states that the Bill is

“fragmenting a service that currently has the advantage of national oversight and control, and which is politically accountable via the ballot box to the electorate.”

That was the view of an independent QC on reading the Bill. It is a view that I and the Opposition share. I suggest that Ministers read it very carefully and do not dismiss it, as they have done today, as an inaccurate reading of the Bill.

[Nicky Morgan]

Is that the independent legal advice given to the campaign organisation, 38 Degrees? If it is and if the hon. Gentleman has any influence over that group, can he persuade it to release and make public the instructions given to counsel, because any instructing solicitor who instructs counsel to give advice usually gives very clear guidelines on, or an indication of, what they want the advice to say?

[Owen Smith]

I am ever so grateful to the hon. Lady for that intervention, because it is profoundly rich for anybody on the Government Benches to suggest that we should prevail upon an independent organisation to publish the instructions that it offered to an independent QC, when the Government will not even publish the independent advice that they have commissioned. They have refused to do so repeatedly. They will tell us that they do not agree with this independent opinion, but they absolutely will not publish their own. I suggest that she makes representations to those on her Front Bench, and I will do the same to 38 Degrees if I have a chance.

The independent legal advice goes on to say:

“Encouraged by the structure and clear intention of the Bill to give consortia autonomy from the Secretary of State,”—

which is, of course, in clause 4 of the new Bill—

“there is a real risk of an increase in the ‘postcode lottery’ nature of the delivery of some services, depending on the decisions made by consortia.”

That increase in the postcode lottery takes me on to the second set of proposals that I wish to touch on, which we believe would stop the Government effectively legislating to hardwire the postcode lottery into our NHS. We accept that it is already too variable across the country and that there needs to be greater equity and standardisation, with excellence provided to everybody across the country. That will become all the more difficult with the new provisions.

New clauses 10 and 11, which were tabled by the Labour Opposition, are designed to combat some of the possible malign consequences of the changes that hand to clinical commissioning groups the ability to determine the needs of the local health population and to set their priorities without interference or support from the Government, or indeed from regional strategic health authorities.

[Dr Poulter]

rose—

[Owen Smith]

I am delighted to give way to the hon. Member for Central Suffolk and North Ipswich (Dr Poulter), who has such an acute interest in Wales.

[Dr Poulter]

The hon. Gentleman is making some good points. Does he accept that within a national framework of gold standard and good treatment, there will be regional or local variations in the needs of patient groups? For example, given health care inequalities, mental health and the higher rates of cardiovascular problems in ethnic minority populations, patients in Bradford may have very different health care needs and priorities from patients in the area of rural Suffolk that I represent. Does he agree that the Bill goes some way towards allowing local flexibility that will better address some of the different local health care needs?

[Owen Smith]

I accept that there are obviously different needs and that there is a good case for a needs-based assessment model being used by PCTs in the current situation or by CCGs. Indeed, one of the amendments tabled by Liberal Democrat Members on a needs-based assessment is excellent and I wish that we had tabled it. However, the crucial difference, which I alluded to earlier, is that previously the Secretary of State has had a direct duty under section 3 of the National Health Service Act 2006 to provide and secure a whole range of relevant and necessary pieces of the health ecosystem, such as hospitals, within a given area. Under the Bill, that duty will pass to clinical commissioning groups. That is a further crucial removal of responsibility and accountability from the Secretary of State and transference of them to CCGs.

Under the aegis of the Bill, many CCGs may well plan well for their local population, and perhaps better than primary care trusts, but what if they do not? What if they get it wrong and determine for clinical reasons—or, dare I say it, because in this new world they are sitting cheek by jowl in the boardroom with commercial players who have a stake and a skin in the game financially—that they no longer feel it is “reasonable”, as the Bill puts it, to provide certain services? I think that is perfectly foreseeable.

We already know that because of the cost pressures that PCTs are under, they are having to make difficult decisions about which services they will provide and which they will not. They have always had to do that. It is just possible that CCGs will make duff decisions with which local residents disagree. As we heard earlier from my hon. Friends on the Back Benches, they will not be able to be held to account in the way that the Secretary of State, and eventually PCTs through the Secretary of State, can currently be. Those changes are critical, and I suggest that the Minister reflects on them.

Another crucial change to the Bill that we would like to be brought about is in respect of the costs of bureaucracy. We are changing from 150 PCTs to more than 250 clinical commissioning groups and counting. The latter are smaller and less strategic, and certainly less experienced in commissioning, than PCTs or strategic health authorities, and they are arguably too small to compete equitably with very large and financially powerful foundation trusts. That is a real risk. Crucially, they will also increase transaction costs, bureaucracy and administration costs.

That is why, in new clause 11, we have decided to ask the Government to put their money where their mouth is. The Minister asked earlier why we had chosen an “arbitrary” figure of 45% for a cap on the volume of expenditure on administration by CCGs. The answer is simple: it was the number that the Secretary of State came up with. He said that that was how many percentage points he was going to trim off the administration and bureaucracy costs of the NHS. He boasted that he could deliver 45% savings, so we are calling on him today to put his money where his mouth is and legislate for that. Let us measure him against that, because there is not going to be much else that we can hold him accountable for.

We have tabled new clause 10, on waiting times, because targets and standards absolutely matter in the NHS. No matter what the Government keep telling the public, we still believe in clinical targets, including some that the Government would denigrate as “bureaucratic” or “administrative” targets. In new clause 10, we ask the Government to take the power to set transparent regulations relating to waiting times. Waiting times are going up under this Government. There have been 400,000 people with long waits since the Tories came to power. The trajectory and the sense of history repeating itself are depressingly clear to me and my hon. Friends.

[David Tredinnick (Bosworth) (Con)]

I think the hon. Gentleman might inadvertently have misled the House. He said that waiting lists were going up in the NHS. My recollection is that they are going up in Wales. He is shadow Wales Minister, I think.

[Owen Smith]

I was waiting for that intervention and looking forward to it. I was slightly concerned, when the hon. Member for Central Suffolk and North Ipswich intervened and failed to mention the fair and beautiful country of Wales, that I was not going to get the opportunity to put the record straight. I hate to tell the hon. Member for Bosworth (David Tredinnick) this, but he is wrong. Waiting lists in Wales are coming down. We have been hitting 95% of our target week in, week out, month in, month out since September 2009.

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[Paul Burstow]

I have said that before.

[Owen Smith]

The Minister has not said it before in a public realm of which I am aware. He certainly did not say it in the Public Bill Committee, all 40-odd sessions of which I feel I sat through. The Minister knows that the issue is crucial, because the Future Forum that he commissioned said so. Indeed, it said that

“one of the most widely voiced criticisms of the proposed changes was a deeply felt concern at the risks to healthcare education and training in England posed by the fast pace of change.”

The Government responded by saying:

“we will introduce an explicit duty for the Secretary of State to maintain a system for professional education and training as part of the comprehensive health service.”

We are still waiting. What will that duty look like? [Interruption.] The Minister says “We have said that we are going to do it”, but here we are, eight months and 1,500 amendments later. How long must we wait? Are we sure that we will see the duty introduced in the House of Lords? Are we positive about that? I must say that I am not certain about it.

[Paul Burstow]

The shadow Minister rarely criticises the Government for telling the House again what they said in the response to the Future Forum, which is that we would introduce that explicit duty. We will introduce it in the House of Lords, as I have told the House today. We are committed to doing so, having listened carefully to the concerns of NHS professionals.

[Owen Smith]

The very simple question to be asked is “Why the delay?” Why could the Minister not have introduced it earlier? We have known about the problem for eight months and more. The Secretary of State, who has been keen on changes such as this for a long time, must have given some thought to what he was going to do about staff training and work force planning in the NHS.

[Mr Barron]

It was clear from the day of its publication that the Bill, which abolishes the structure that had kept education and training in place, would create chaos in the national health service. Here we are, hundreds of amendments later, with a resubmitted Bill. Our debate on the outcome has been crammed into two days, which is wholly unsatisfactory, and the Government still cannot tell us what will replace the structure that has been in place for so many years. That is a nonsense.

I listened to the Minister’s speech earlier. He was telling people—people outside, including professionals who want this kind of professional development on a continuing basis—to have faith in what might happen at some stage. I have to say that I have little faith in what the Government have done with the Bill from the very beginning.

[Owen Smith]

I entirely agree, and my faith is diminishing by the minute. I do not understand why the Government cannot simply concede that they have signally failed to deal with this crucial aspect of the Bill. It took them months to produce the revised failure regime. They managed to drag that out in time for Report, but they have not produced the impact assessment, they have not produced any figures showing how much this will cost the public purse, although we know that the amount is rising—I should love the Minister to tell us by how much—and they have not produced a solution to the crucial problem of staff training and work force planning. That is a disgrace. They could have and should have done it by now.

New clause 13 would place a further duty on providers, related to what is in the earlier new clause. It would oblige them to make provision for training and work force planning for their own staff, thus filling another gaping hole in the Bill. As the Minister might say if he intervened on me, Monitor may well have powers, under the pricing clauses, to pay less under the tariff to providers who do not engage in training, but nothing in the Bill compels new entrants—especially private providers—to give their staff any training, or to deal with any costs that the NHS has traditionally had to bear for the education of the work force.

We all know that in the incredibly fast-moving and innovative world of health care, keeping staff up to date is absolutely crucial. That is why—I hate to say it—despite the news that we are to have an amendment ín the Lords, we will attempt to press amendment 7 to a vote. It proposes the retention of SHAs until and unless we know precisely what the Government will put in their place in respect of training and administration.

NHS staff is another group that is profoundly concerned by the shambles, chaos and confusion that Ministers have overseen. Under the Bill, they are described as assets and will be transferred lock, stock and barrel between new providers. The new providers may be a private company—such as Helios, Bupa, UnitedHealth, or whoever else decides it is interested in running the NHS in future—and the staff may be transferred to the new providers. The Minister shrugs, suggesting that that is a misrepresentation, so I challenge him to intervene on me and state what he seemed to imply earlier: that what I have just said is not the case.

Schedule 23 makes that explicit, however. It provides for the transfer of NHS staff and other assets. It allows such so-called assets to be passed in future from NHS entities to the new CCGs. That can happen to any

“person who provides services as part of the health service in England and consents to the transfer”.

Under schedule 23, any NHS member of staff—or a building or intellectual property—can, so long as they agree, be transferred to anybody else who is licensed to provide services to the NHS. I find that extraordinary, but not quite as extraordinary as the next provision, which refers to NHS bodies being able to transfer all such assets—what a delightful way to refer to people—to a “qualifying company”, whatever that means. I will be delighted if the Minister tells us what the term “qualifying company” in schedule 23 means.

[Alison Seabeck (Plymouth, Moor View) (Lab)]

Does my hon. Friend join me in sharing the concerns of many public health consultants in this regard? They sometimes cover three areas of work, so in one area they could go to the commissioning board, in another they could go to children’s health commissioning, and in another area of their job they could go to the local authority. What are those people supposed to do? I suspect some of them will leave the service.

--- Later in debate ---

[Owen Smith]

My hon. Friend is close to health workers and health professionals in her constituency, and she knows that people are leaving the service in droves. It is not just managers who will be sacked from primary care trusts or transferred across to they do not know what kind of organisation elsewhere. Clinicians are also deciding that they no longer think the job is worth the candle, because of the endless top-down reorganisation—something we were told we would not see from this Government, although it just keeps on coming. I fear that the situation will get worse in coming months. We will have to wait and see what the capacity of these new CCGs—and, potentially, the national commissioning board—will be, because we do not yet know who will be left standing at the end of this endless round of changes.

In summary—[Interruption.] It is a long summary, and if hon. Members keep talking it will get longer. In summary, we have had eight months of debate in this place, two—and soon to be three—versions of the Bill, with 1,500 amendments, hundreds of protest meetings across the country, and 450,000 signatories to a petition trying to “kill the Bill”. Those extraordinarily high numbers are a reflection of the importance of the NHS to the British people, to the NHS workers and to us, the Labour party.

For many in our society the NHS remains the shining symbol of the civilised collectivist values that first informed its creation 60 years ago, and they rightly view its continuation and their stake in it as part of their British birthright. We in the Labour party view it as a cherished part of our heritage. It also shines a light for us to the future, and we will not stand by and let how we have known it to be for these past 60 years fall into the pages of history. In 1946 we legislated to realise the vision of a collaborative and comprehensive national and public service, as part of the essential glue of that post-war society. This Bill promises instead to give birth to a denationalised NHS—a denatured NHS—divided by competition law, and conquered by profit seekers and carpetbaggers from across the globe.

Ministers, especially the Secretary of State, should remember that it is never too late to change one’s mind—it is never too late to save the NHS. We are appealing for them to do so and they would do well to do so. They should remember, too, the dire and, I trust, accurate prediction and warning given by the man who was proud to be the midwife to the NHS—the Welshman, Nye Bevan—in 1946. He said that

“no government that attempts to destroy the Health Service can hope to command the support of the British people.”

That was true when he wrote it in 1951 and it will be true in 2015 when the Prime Minister asks the people to trust him on the NHS. I hate to tell the Secretary of State and, indeed, the Prime Minister this, but no amount of Ashcroft-funded airbrushed billboards pleading with people to trust the Tories on the NHS will count, because the evidence of their perfidy is written in black and white throughout this Bill, and it will be remembered at the next election.

[Guy Opperman (Hexham) (Con)]

I wish to start by making it clear that I am a big supporter of the NHS. I probably should declare an interest, because I have spent too much of the past six months discovering it from the inside. As is commonly known, I had a brain tumour in April, which was removed by the national hospital for neurology and neurosurgery in Queen square, where I received outstanding care and treatment from the doctors and nurses.

That was not the first time that I had had my life saved by the NHS. Although my girth would deceive hon. Members, I used to be a jockey, and when I was trying to win a race at Stratford, the second last fence proved too much for the horse and me, we turned over and on my left hand side I was entirely crushed by a steeplechaser. I broke about 11 bones and cut my left kidney in half. I had a splenectomy and a very good doctor at Warwick hospital saved my life. I also wish to make the point that I have an NHS background: my grandmother was a matron in a district hospital, and we have spent an awful lot of time in the Hexham constituency supporting the Hexham hospital and the Freeman hospital, in particular.

I support the Bill, and I wish to touch on a couple of the points that have been raised. For a time I earned a living as a barrister, reviewing health care bodies and public bodies of a general nature. I hope that that qualifies me to discuss competition law briefly. If hon. Members were to read, as I have had to over the past few months, some of the representations that have been made about competition, they would believe that it is a new evil being introduced into the NHS. However, that is manifestly wrong, as the Enterprise Act 2002 and the Competition Act 1998 were introduced under the previous Government and have been operating in the health service for a considerable time. I see some hon. Members shaking their heads, but the argument supported by the shadow Minister cites that exact point: in the form of a variety of institutions and undertakings, the UK health service is subject to competition law under the 2002 Act, the 1998 Act and European community laws on competition. This is therefore not a new thing, nor should it be, because it was introduced by the previous Government and large parts of the Bill follow on from what was done previously.

I shall touch briefly on procurement, because the issue has been raised in this House. It is not a new thing for procurement matters to be challenged or to be subject to judicial process. Judicial process itself is not a bad thing. I have heard people say countless times in these past two days of debate, “This is going to be a den of iniquity for lawyers. It will be so bad that there will be lawyers all over this case. It will be really difficult for people to proceed with the health system.” I brought a case against a primary care trust in 2005, 2006 and 2007, with a view to trying to change the law and the way in which that PCT was operating. Before anyone jumps up to discuss that approach, I am pleased to say, first, that we changed the law to assist the patients, secondly, that the whole case was conducted entirely pro bono—for free—and thirdly, that two separate Labour Attorney-Generals gave me national awards to support my efforts. I do not expect that to happen again in a hurry. The point is that if we operate the process correctly—I shall talk about the process briefly in a second—we, and the commissioning consortia, will not be the subject of legal challenge.

That will always be the case with any public body: if it operates in a statutory and well-authorised way and provides the degree of consultation that it should, it is not open to challenge. It is not myself or the Government who would decide that, but a High Court judge considering a matter of judicial review. But if the public body—in the form of the NHS or the commissioning consortia—does not act properly, behaves beyond its powers or breaches natural justice in any way, it should and will be open to judicial review and other legal process. That is entirely proper.

I therefore do not believe that this will be a process through which huge numbers of judicial reviews will arise, as new issues for the NHS. I do not think that that will be the case at this stage. The hon. Member for Pontypridd (Owen Smith) talked at great length about the commissioned barrister’s opinion and 38 Degrees, but that barrister’s opinion makes the simple point:

“The Bill does nothing to make the system more amenable to challenge in the courts”.

Let me finish my points about competition and the duty to provide. I suggest that there is no fundamental change whatsoever. That is also the suggestion that the individual counsel made clear. I make the point that he is a junior counsel, not a Queen’s counsel, and there is no disclosure of instructions, the conference notes or any of the other things that would be vital to an understanding of the opinion. It has been wholly misrepresented by 38 Degrees, and there is no change—

[Owen Smith]

rose—

[Guy Opperman]

I am sorry, but I am going to keep going. The hon. Gentleman had about an hour to talk, and there are an awful lot of people who would like to talk about these matters.

I suggest that there is no fundamental change, and this is clearly a way forward that is being implemented for the benefit of patients. We are concerned with patient care and the quality of outcomes. I as a patient, like many other people in this House, am not concerned with the quality of outcomes other than to ask, “Is it a good outcome?” That is the important thing, and to suggest that private provision of the outcome and of the service provided is fundamentally bad is simply wrong. Such provision was introduced and brought in by the previous Government, and it assisted the public provision. The two can work together, and that is a good thing. I shall support the Bill, and I make this point to finish: the NHS is clearly a wonderful institution that all in the House cherish and support, and this is a Bill that supports it.

--- Later in debate ---

[Joan Walley]

We have just had an awfully long debate about precisely that issue. Many of us would say that the PCTs were not operating accountably, but Members of Parliament could have influence and bring pressure to bear. The last resort is through the Secretary of State, and it is important that that should be retained in the Bill.

[Owen Smith]

Does my hon. Friend agree that the critical points are that there is an unknown into which we are stepping with the Bill and that the presumption is that the culture will be different? There will be a presumption of autonomy, being hands off, less accountability and more localised decision making. It is therefore perfectly reasonable to presume that we will have less input.

[Joan Walley]

That is right and it comes back to the fact that, somehow or other, under the new regime, whatever it ends up being, there will not be the fairness or the universal provision. In certain areas—perhaps those such as mine, which have much greater deprivation and much greater health inequalities than others—things will be more difficult.