Health and Social Care (Re-committed) Bill

Debate between Owen Smith and Guy Opperman

Wednesday 7th September 2011 Commons Chamber

[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.