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Lords amendment 31 agreed to.

Lords amendments 32 to 42 and 54 to 60 agreed to , with Commons financial privileges waived in respect of Lords amendment 35.

After Clause 59

Secretary of State’s guidance on duty under section 59(9)

The Minister of State, Department of Health (Paul Burstow): I beg to move, That this House agrees with Lords amendment 63.

Madam Deputy Speaker (Dawn Primarolo): With this it will be convenient to discuss the following:

Lords amendments 64 to 73 and 75 to 147.

Lords amendment 148, and amendments (a) and (b) thereto.

Lords amendments 149 to 167, 295 to 298 and 343 to 365.

Paul Burstow: The amendments cover Monitor, the regulation of NHS services and the governance of foundation trusts. Before I deal with them, I would like briefly to address some of the myths that have grown up around part 3 of the Bill. [Interruption.]

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Madam Deputy Speaker: Order. I am sorry to interrupt the Minister, but I am having some difficulty hearing his response to these amendments. May I ask Members to leave the Chamber quietly, so that we can continue with this debate and hear his comments?

Paul Burstow: Thank you, Madam Deputy Speaker.

Part 3 is a key element of the Bill. As the Government have made clear, commissioners will decide whether, when and how to use competition to deliver services for patients. Where they decide to do so, part 3 will ensure that competition is regulated effectively and in the patient’s best interests. Under the Bill, Monitor will, in future, regulate all providers of NHS services, so that all patients are protected, irrespective of who supplies their treatment and care.

In the earlier debate, my hon. Friend the Member for Southport (John Pugh) asked about the applicability of competition law to the function of commissioning. I draw his attention to European case law, which makes it clear that commissioning is not subject to competition law. It is the function that matters when it comes to determining whether this is applicable—

Grahame M. Morris rose

Paul Burstow: I am responding to my hon. Friend and, if the hon. Gentleman does not mind, I am going to carry on doing so.

In addition, the Office of Fair Trading has published guidance that is consistent with the view that the Department has expressed on this matter. I will write to my hon. Friend with the detailed case law, so that I can quote the case reference for him.

Claims have also been made that part 3 does something else. Specifically, it has been suggested that it introduces competition and competition law into the NHS, as if that were the case for the first time. Part 3 does not do that, nor does anything else in the Bill. The NHS will, as a result of the Bill, be better insulated against the inappropriate application of competition law, particularly as it develops more integrated services, which are now embedded throughout this legislation. Without Part 3, the NHS would continue to be exposed to price competition and the preferential treatment of private providers introduced by the previous Labour Government. Indeed, Labour’s 2006 procurement regulations assume that public authorities will be securing services from a market—that will not always be appropriate in the NHS—and so, under the existing regulations from the 2006 legislation, commissioners are placed at greater risk of legal challenge whenever they decide to secure services without competition.

Karl Turner (Kingston upon Hull East) (Lab): Will the Minister say whether Monitor will keep its role as an independent regulator of foundation trusts?

Paul Burstow: I am coming on to deal with a whole section of amendments that were made in the other House and which this Government have accepted, when I will address that very point. If the hon. Gentleman is patient, he will get an answer to his question.

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Grahame M. Morris: I wish to seek a point of clarification on the Minister’s reference to what Earl Howe said about the Bill providing

“insulation against inappropriate application of competition law”.—[Official Report, House of Lords, 6 March 2012; Vol. 735, c. 1689-90.]

Concerns were raised in the Minister’s own party about American-style private health care interests being able to use these mechanisms to provide health care services. Will he give an example of how this “insulation” would protect an NHS trust from being taken over by a north American private health care company?

Paul Burstow: That shows a fundamental flaw in the hon. Gentleman’s argument and in his understanding of what the Bill actually does. I commend to him the contribution made by Earl Howe, the Minister in the other place, on 6 March 2012, when he set out in great detail—this can be found in column 1689—all the aspects relevant to how this Bill protects the NHS, creating insulation for it against the application of competition law under the current framework, as provided by the 2006 legislation, which does not offer those protections. It certainly does not give commissioners the ability to exercise their discretion over whether, when and if to use competition. In those circumstances, the measures give for the first time, because of the sector-specific regulator, the ability to decide which services will be exempt from competition altogether—something that does not exist as a result of Labour’s legislation. That is one reason why so many hon. Members in this House are concerned about the impact of competition—because they are seeing the NHS being exposed to competition under the 2006 Act. This Bill will sort those defects out.

7 pm

Barbara Keeley (Worsley and Eccles South) (Lab): Will the Minister give way?

Paul Burstow: No, I am going to make some progress and then I will be more than happy to give way. [ Interruption. ] I am sure there will be more opportunities and I will give way in a moment.

On how Monitor exercises its powers, the Government have supported amendments made in the House of Lords, which were tabled by my noble Friend Baroness Williams, providing that the Secretary of State can give Monitor guidance to help ensure it exercises its functions in a manner consistent with the Secretary of State’s duty to promote a comprehensive health service. The amendments also help to ensure that the Secretary of State can discharge effectively his responsibility for the health service in England and to ensure that Monitor carries out its functions to that end. I therefore commend the amendments to the House. Both this House and the Lords have stressed the need for Monitor to use its powers to support integrated services and co-operation between providers. The Government therefore tabled amendments in the other place to provide express powers for Monitor to set and enforce licence conditions that would enable integration and co-operation between providers.

On the detail of Monitor’s specific regulatory powers, Monitor would have powers to intervene proactively to support commissioners in ensuring continued access to NHS services if a provider became unsustainable. Amendments tabled by the Labour peer Lord Warner,

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which we agreed in the other place, provide that Monitor will have to identify and publish evidence where it identifies risk that it considers arises from unsustainable service configurations. Those amendments would require commissioners to act on that information where necessary. Hence, they make clear the expectation that commissioners will address problems proactively and ensure that patients continue to have sustainable access to the services they need. These are sensible provisions that had support from all parts of the House of Lords and I hope that this House will also agree to them.

I want to say a bit more about the powers and responsibilities of Monitor, which relate to further amendments made in the other place. The extent of the various matters that Monitor would have to take into account was the subject of considerable debate in this House and the other place. I want to be absolutely clear about where we are regarding the overarching duty that Monitor has to take into account. Monitor will have a single, unequivocal duty—to protect and promote the interests of patients by promoting provision of NHS services that is economic, efficient and effective and that maintains or improves the quality of services. Beyond that overarching duty there is no hierarchy. No preference is given to competition or integration because integration is clearly a responsibility that sits with commissioners and Monitor’s role is to support it.

Peers also raised concerns about proposals for the Competition Commission to undertake seven-yearly reviews of competition in the provision of NHS services. The Government were sympathetic to the arguments and were concerned that it might be taken to suggest that competition was being given a higher status than the interests of patients. In order to avoid that, we accepted an amendment tabled by my noble Friend Lord Clement-Jones that removed the provision in the Bill for Competition Commission reviews. We also supported other amendments tabled by my noble Friend Lord Clement-Jones requiring the Office of Fair Trading to seek advice from Monitor whenever it considers mergers or potential mergers involving foundation trusts. The amendments will help to ensure that benefits to patients are evaluated on an informed basis by a sector-specific regulator giving its expert advice to the OFT in the discharge of its responsibilities and as a paramount consideration.

Jim Shannon: Many hon. Members will probably have received correspondence from the Nuffield Trust saying that

“much of the behaviour of providers will in practice be shaped by detailed guidance and the work on pricing conducted by both Monitor and the NHS Commissioning Board. The two organisations have a major task ahead of them to ensure there is the necessary information, data exchange, contracting and payment tools to support patient choice, integrated care, efficiency and quality.”

How would the Minister respond to the Nuffield Trust on that question?

Paul Burstow: What I heard the hon. Gentleman set out was a rehearsal of the interrelationship that exists between the NHS Commissioning Board and Monitor, particularly in the area of setting NHS tariffs and prices. For the first time, as a result of this legislation, there will be greater transparency and requirements about consultation in the design of those tariffs. At the moment, that process is obscured within the bowels of

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the Department of Health without accountability or public scrutiny. For the first time, this Bill puts that on a footing that ensures that transparency. As a result, it will produce much better tariff design for the future.

On Monitor’s role as the regulator of foundation trusts, it is important to be clear about this important part of the legislation. Foundation trusts will remain the principal providers of NHS services. The Government do not expect that to change. Monitor must therefore be able to continue operating a compliance regime transparently to assess and manage the risks, intervening proactively to address problems where necessary. The Bill is designed to reflect this and for Monitor to protect patients’ interests by regulating foundation trusts so that they continue to be able to provide NHS services in line with their principal purpose. Where Monitor identifies significant risk to a foundation trust’s continued ability to provide NHS services, the Bill provides Monitor with powers to intervene proactively to ensure that the risk is addressed. The Government agreed amendments in the House of Lords to clarify that further. In particular, the amendments clarify that Monitor’s powers to direct foundation trusts to do, or not to do, things to maintain essential standards of governance, or to ensure their continued ability to provide NHS services, will not be transitional powers. We accept that that previously was not as clear as it needed to be and we have made it clear.

We think that the Bill has been improved as a result of the amendments that were made in the House of Lords in that regard. Under clause 94 in the latest version of the Bill, Monitor’s enduring powers will include the power to set and enforce requirements specifically on foundation trusts to ensure that they are well governed. Monitor does that now and those requirements will need to be differentiated for foundation trusts to reflect their unique role and legal status as public benefit corporations financed by the taxpayer with a principal purpose defined in statute as being

“to provide goods and services for the purposes”

of the NHS. Monitor will also have enduring powers to set and enforce requirements on foundation trusts to ensure that they remain financially viable and to protect NHS assets. These measures deal with one of the concerns that has often been rehearsed about the privatisation of the NHS. The Bill does not provide that opportunity, but it provides for the protection of NHS assets. Those are necessary conditions of a foundation trust’s continuing ability to provide NHS services; they are not transitional issues.

Grahame M. Morris: I would appreciate the Minister’s clarification about reports that have been made available as a result of freedom of information requests indicating that senior officials of Monitor have been meeting on a regular basis with representatives of the private health care consultancy, McKinsey. Is the Minister aware of the nature of those discussions and do they have any relevance to the assurances that have been given at the Dispatch Box that there is no conspiracy to privatise the health service?

Paul Burstow: Absolutely not; the reports to which the hon. Gentleman refers, which had a substantial exposé in The Mail on Sunday, really do not bear as close an examination as he would like of them. We know that the relationship that existed in terms of contracting McKinsey to provide services was one that the previous

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Government engaged in far more freely than the current Administration. The amounts that this Government have contracted and the nature of the relationships that this Government have are far smaller.

Barbara Keeley: I have asked the Secretary of State about McKinsey and Co. in this Chamber and through a written question, but neither he nor anybody in the Department seems able to confirm whether it has access to the risk register. It seems very strange to me that the Department is not able to answer the question of an hon. Member about what access that organisation has to those documents. It is a very strange set-up.

Paul Burstow: The hon. Lady says it is a strange set-up and refers to her endeavours to get an answer to the question. I have not seen details of her exchange with the Secretary of State, but I will look at that and write to her with an answer to the question.

Simon Hughes (Bermondsey and Old Southwark) (LD): My hon. Friend is dealing with matters of great concern outside this place, and I am clear that all these amendments are a move in the right direction. Will he put it on the record that as a result of the Bill, first, it will not be possible in future for any hospital to move, as Hinchingbrooke did, from the public sector to the private sector, and, secondly, that the proportion of private sector business cannot be increased up to the 49% that has been mentioned and will be increased only if the hospital decides, according to the amendments, to increase it by the small percentage that the amendments now allow?

Paul Burstow: I am grateful to my right hon. Friend for his questions. Let me start with the issue of Hinchingbrooke, which is an important one. It is worth remembering that the vast majority of the process that led to that franchise arrangement was completed under the Labour Government, not by the current Administration, and was part of the arrangements put in place by the Labour Health Act 2006 and Health and Social Care Act 2008. The Bill makes sure that in future there can be no scope for sweetheart deals to incentivise new entrants into the NHS, it ensures that there cannot be price competition of the sort that was allowed under the 2006 Act, and it ensures a protection for commissioners to decide when and if it is appropriate to use competition. That is not a protection that they enjoy under the 2006 or the 2008 Acts.

Karl Turner: Will the Minister give way?

Paul Burstow: I have answered the hon. Gentleman’s question. He should read Hansard later.

I was asked, finally, whether there is a cap of 49%. Let us go back to the deliberations in another place before Christmas, when the issue first came up. Our noble Friends were concerned to make sure that we put it beyond doubt that foundation trusts were protected from the full force of competition law and that those organisations would continue to have as their principal purpose their service of NHS patients. That is why we have further amendments, which I shall come to shortly, about how a 5% increase would trigger further consultations and votes by the governors.

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Diana Johnson (Kingston upon Hull North) (Lab): Will the Minister give way?

Paul Burstow: No. I shall make some progress, if the hon. Lady does not mind.

In addition, Monitor could also, in exceptional circumstances, use the enduring powers that I was describing to direct a foundation trust to remove its directors or governors. In other words, a direct intervention power is preserved by the amendments and changes that we have made.

The Government’s ambition is that eventually foundation trusts should have more responsibility for their governance than they do under the current arrangements. This will depend, in particular, on strengthening the role of foundation trust governors in holding their boards to account. We have listened to the concerns about the pace of change. Hence, we have amended the Bill so that Monitor will also have, on a transitional basis, express powers to remove, suspend or replace directors or governors of a foundation trust directly, without the prospect of an appeal to the first-tier tribunal. We would expect Monitor to use these powers to address failure of governance, which puts the trust at risk of not meeting its licence conditions, such as the requirements that I have already described.

Karl Turner: Is it right that the only provision preventing privatisation is the requirement in clause 161 that foundation trusts must use the NHS more than they use private providers? Is that not, in effect, the 49% cap?

Paul Burstow: No, because the overarching duty is that the service remains free at the point of use. Also, there are protections—[Interruption.] The hon. Gentleman asks a question, but when I try to give him an answer, he shouts and screams at me. That does not help the debate. What I wanted to say was that when it comes to mergers and acquisitions, there are clear requirements to protect NHS assets from a transfer out of the NHS and out of the state sector. The powers that I was describing would be retained as long as Parliament considered necessary, and they could not be removed before 2016 at the earliest and would then be subject to criteria that Monitor determines, with the Secretary of State’s approval.

7.15 pm

On the amendments to part 4, which we have started to debate, we have listened carefully to the concerns expressed to us that, following the removal of the private patient income cap, foundation trusts could engage in more private work, to the detriment of their NHS patients. The Government have therefore made amendments to require every foundation trust to explain in its annual report how its non-NHS income has impacted on NHS services. The Bill will now also require governors, who represent NHS staff and the public, to be satisfied that any proposal by a foundation trust to earn non-NHS income must not significantly interfere with the trust’s principal legal purpose to treat NHS patients. Where a foundation trust proposes to increase by 5% or more the proportion of total income that it derives from non-NHS income—this is not just patient activity; it could be research and other things as well—the Bill now requires this to be approved by a majority of governors in a vote.

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Opposition Members have tabled two amendments on this matter which appear, on first reading at least, to duplicate each other. Both provide for Monitor to have to approve any action by a foundation trust that would result in the trust’s increasing its income from non-NHS activity as a proportion of its total income by more than 5 percentage points. In the first amendment, this would be in addition to the foundation trust’s governors having already voted to approve the increase; in the second, Monitor would take over the role completely and locally elected governors seem to be excluded from the process.

As a result, the public would not get direct representation in their locality in decisions that would affect their local foundation trust’s ability to provide innovative NHS services that respond to their needs. Their views would be completely disregarded in favour of Monitor exercising this function. Contrary to Labour’s own manifesto, these amendments would fetter foundation trusts’ freedom to make decisions about raising income from non-NHS sources which they could use to provide innovative, locally responsive services for their patients and the public they serve. Governors of foundation trusts are in a far better position than Monitor to know what their local communities want and need. They should be allowed to approve their directors’ decisions in the light of their local knowledge—local knowledge that the Labour party when it was in government and introduced foundation trusts thought was a very good thing. Now that it is in opposition, Labour thinks it is not a good thing.

We expect Monitor to oversee foundation trusts’ proposals to increase their income from non-NHS activity. As my noble Friend the Minister said in the debate in the Lords on Report, if a foundation trust is increasing its non-NHS income by more than 5% of its total income in a year, we will expect Monitor in every instance to review whether there is any cause to intervene in order to safeguard the ongoing provision of NHS services. That is a proportionate and reasonable response and a proportionate role for Monitor to assume.

Barbara Keeley: I do not know whether I am alone in this—I do not think so—but the notion of foundation trust governors having to approve an increase in private patient income does not feel like much of a safeguard, especially as the governors are inclined to balance the books. It just means that the proportion of private patient income will slowly grow to 49%, rather than jump to it straight away. While we are thinking about this aspect of clause 163, I understand that the Department of Health still has an explicit target in the operating framework to increase the proportion of non-public sector provision purchased with NHS funding. There are so many pressures and drivers that the denial that it is privatisation and the influx of competition—[Interruption.] It is privatisation that will slowly grow to 49%.

Paul Burstow: Absolute nonsense. That is part of the rhetoric and fantasy that we have heard throughout the Bill’s passage. Let me deal directly with it by reference to examples of current practice. The Royal Marsden and the Royal Brompton and Harefield all earn very high levels of private income but are consistently rated highly as providers of NHS services. They use those resources to reinvest in NHS services.

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Mark Simmonds (Boston and Skegness) (Con): Will the Minister confirm that most of the foundation trusts that are interested in raising and removing the cap want to invest the money that they would generate from private income to improve services for NHS patients? [Interruption.]

Paul Burstow: That is exactly the point; those moneys have to be reinvested—[ Interruption. ]

Madam Deputy Speaker (Dawn Primarolo): Order. Members will not keep shouting across the Chamber, from either Front Bench or elsewhere.

Paul Burstow: My hon. Friend’s point seems to have upset some hon. Members, but it was entirely—

Grahame M. Morris: Will the Minister give way?

Paul Burstow: Let me at least do my hon. Friend the courtesy of answering his point before taking another intervention.

It is absolutely right to make the point about the use of those resources. Indeed, that has been one of the benefits of the system, as we have seen in the performance that some of the trusts that have had historically high caps have delivered in NHS services. However, it is worth noting that it is not just in relation to foundation trusts that there have been concerns about caps, because NHS trusts have never had caps, and it has been entirely possible for NHS trusts to increase their income without any of the constraints or controls that foundation trusts have found themselves under. The Labour party, in crafting its manifesto, seemed to have understood that, but it has now decided to run away from that in order to paint a picture about privatisation that is not part of this legislation.

Grahame M. Morris: Will the Minister give way?

Mr Simon Burns: Sit down.

Madam Deputy Speaker (Dawn Primarolo): Order. Minister Burns, I will chair the debate in this Chamber. You will not. Unless you want to sit here and allow me to take—

Mr Burns indicated dissent.

Madam Deputy Speaker: No? In that case, be quiet.

Paul Burstow: We have also clarified a foundation trust’s principal legal purpose to show that it must continue to earn the majority of its income from NHS activity and that that is its overriding priority. Revenue for treating NHS patients could absolutely not be used to cross-subsidise private care, and we would expect Monitor’s licensing regime to prohibit that categorically. The amendments provide important safeguards, so I urge the House to support them.

Finally, this group contains a number of minor and technical amendments, including those implementing recommendations from the Delegated Powers and Regulatory Reform Committee that provide for greater consultation and clarify various matters. I urge hon. Members to support the Lords amendments in this group and to reject the Opposition’s amendments to Lords amendment 148.

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Andy Burnham: It is important to begin by setting out the background to many of the amendments in this group. Despite the pause that the Government ordered for the Bill, they failed to allay fears about the creation of a market based on a 1980s utility privatisation, with Monitor acting as an economic regulator—a parallel drawn last November not by me, but by the King’s Fund in a report it published. That, more than anything else, has been behind the huge professional disquiet about the Bill that we have seen over recent weeks and months, with respected professional organisations coming out one after another to express their concern about the damage that will be done to the health service if hospital is pitted against hospital, doctor against doctor. That is where we start.

The Minister began his remarks by talking about the myths relating to part 3 of the Bill and objecting to some of the interpretation that I have just given. I do not know who he had in mind when talking about those myths, but it might have been the noble Baroness Williams. I will quote from an article she wrote in The Guardian on Monday 13 February. It is important because it explains the genesis of one of the amendments that the House is considering tonight. She acknowledged that there were:

“fears among the public and within the medical profession that clinical commissioning groups might become dependent on advice from powerful private health companies, and that the imposition of UK and European competition laws, addressed to markets and not to social goals, might destroy the public service principles of the NHS. In plain terms, this is often described as a fear of privatisation. These are issues that must be addressed.”

When the Minister talked disparagingly about myths, did he have the noble Baroness in mind? I think that he must have done, because in the same article she went on to suggest that the answer to the concerns and fears that she had correctly identified was to drop the whole of part 3. She wrote:

“What that would mean for the bill would be dropping the chapter on competition, and retaining Monitor as the regulator of prices and of the foundation trusts.”

I am not privy to the internal machinations of the Liberal Democrats, but I think that there must have been some wrangling and soul searching in the two weeks following the publication of that article, because by 27 February a letter had emerged that was co-signed by the noble Baroness and no less a figure than her party leader, the Deputy Prime Minister. The call to drop part 3 of the Bill, which had been made so eloquently in The Guardiantwo weeks earlier, had in fact turned into something very different. The letter stated that they needed to go further to amend the Bill in order

“to rule out beyond doubt any threat of a US-style market”.

If what the Minister has said at the Dispatch Box this evening is true and all these fears are myths, why did his party leader and the noble Baroness send that letter? Indeed, why were there even concerns about the threat of a US-style market, which his party leader acknowledged on 27 February? They do not sound like myths to me; it sounds like they were very real threats indeed.

What I want to address this evening is the fact that when the package of amendments that were meant to put the Clegg-Williams package into the Bill finally emerged, they fell considerably short of what was promised in the letter. Indeed, we are dealing with some of those tonight. I will focus on Lords amendment 148 in particular,

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which deals with the private patient income cap. When the Minister spoke a moment ago, I did not find him reassuring at all. When he spoke about foundation trusts in the future he said that they would of course remain the principal providers of NHS services, but I do not find that at all reassuring. The exchange he had with the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) was very revealing. The right hon. Gentleman made a mistake that the noble Baroness made when she took on Polly Toynbee on the same issue. The right hon. Gentleman, like the noble Baroness, does not seem to understand the effect of the amendments he is agreeing to. He began by asking, “Wasn’t it the case that the 49% figure was now completely ruled out and wasn’t relevant?” No is the answer to that. All that the Minister has offered him is that if the increase is more than 5%, it then has to be passed by a vote. I find it incredible that a Member of his years and standing in this House has just revealed that he does not understand the amendments that have been signed up to in order to deliver the package set out in the Clegg-Williams letter. That is a terrifying state of affairs; I do not know what the Members in his party who voted against that might make of it.

Simon Hughes: I absolutely understand the amendment, as I am sure does the right hon. Gentleman. Given that 1%, 2% or 3% of most hospitals’ activity is private at the moment, as he well knows, it seems to me that it is a much better guarantee that we have a rule that says that no hospital can increase that by more than 5% of what it is now unless there is a decision made locally. That gives much more security than anything else previously in the Bill, and that is why it seems to me to be a very worthwhile amendment.

Andy Burnham: Let me answer that directly. The Financial Times has analysed the latest data on actual NHS income earned through the treatment of private patients and demonstrated that in the last year not a single hospital trust would have been caught by this so-called safeguarding amendment. It used the example of Great Ormond Street, which increased its income from private patients by 19% from 2009-10 to 2010-11, to £25 million. In percentage points, that increase was less than 1%. Given the small numbers in the cap which the right hon. Gentleman has just mentioned, he is agreeing to trusts being able to increase their income from private patients by multiples of hundreds of percentage points without any reference to their boards of trustees. Frankly, he has not addressed the point that he has failed to understand that the Bill still gives trusts the permission to increase it to 49%. They could go to the trustees and increase it to 49%. He might be reassured by that, but I most certainly am not.

7.30 pm

Mark Simmonds: I draw the House’s attention to the Register of Members’ Financial Interests. Does the shadow Secretary—[ Interruption. ] Does the shadow Secretary of State—[ Interruption. ] Does the shadow Secretary of State object to NHS foundation trusts raising money through private income—therefore and thereby spending it on NHS patients?

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Andy Burnham: No, I do not, is the answer—[ Interruption. ] Well, what has that proved? We had trusts earning income, but the foundation trust legislation set a cap: it allowed the principle but tightly controlled it for the vast majority of hospitals. That was its purpose. This Bill removes those tight controls. This Bill, supported all the way on that point by Liberal Democrats, now allows hospitals completely to change character over time. In time they can turn to US-style hospitals and devote half their facilities to the treatment of private patients—

Anna Soubry (Broxtowe) (Con): That is rubbish.

Andy Burnham: It is not rubbish. They can earn 49% of their income, according to this Bill, from the treatment of private patients. That is a fact, and why the hon. Lady shouts “rubbish” I have no idea.

Mr Burns: Will the right hon. Gentleman just confirm that when his Government brought in controls on foundation trusts, they allowed non-foundation trusts, which were the majority of trusts at the time, to have a 100% cap?

Andy Burnham: Non-foundation trusts were managed by the Department, and the Department’s policy, during our time in government, was to have a tight cap—[ Interruption ] . There was a tight cap on the income that trusts could earn, so the very fact of foundation trusts’ creation gave rise to the question of whether there should be a cap. The Minister is effectively abolishing that cap with his Bill.

Mr Simon Burns: Answer the question.

Andy Burnham: I have answered the right hon. Gentleman’s question. It was an entirely different situation altogether.

On the suggestion that we are setting our face against reform, we have not said that, and I as Secretary of State initiated a review of the private patient cap, because the issue came up before the election. I was prepared to allow a modest relaxation of the cap if it could be demonstrated to benefit private patients, but I was talking about single percentage points: 1% or 2% becoming 2% or 3%. I was not in any way conceiving the possibility that 49% of a trust’s income might be made from the treatment of private patients—that half their theatre time, beds and car parking spaces could be turned over to the treatment of private patients.

Dr Poulter: I hope that the right hon. Gentleman will concede that those hospital trusts with a private patient cap that is set at perhaps 35%, such as the Royal Marsden hospital, do not necessarily do that much private work. The decision is at the hospital’s discretion, so the idea that raising the cap to 49% will mean that hospital trusts will per se undertake 49% private activity has been proven to be incorrect, on the facts as they stand at the moment in hospital trusts, because those trusts, the doctors and boards work for the benefit of their patients.

Andy Burnham: That is the ideological difference between us. The hon. Gentleman says that the decision should be at the hospital’s discretion, but the Bill essentially

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sets everybody on their own. Hospitals are being told, “You’re on your own. There’s none of the support from the centre any more, no bail-outs, as the White Paper said. That’s it, you’re out there, you’re competing in a market, and you’ve got to stand on your own two feet.” I differ from that opinion because I want systems regulation and a role for the centre in deciding whether a hospital should greatly increase its treatment of private patients.

This is not just a question of each individual hospital thinking about what it is going to do, because hospitals will have pressure on their bottom lines, as a colleague said earlier. They will be operating in a difficult financial context, and it might have a different effect on their individual interests. It might make sense for hospitals, individually, to increase the number of private patients, but it might not make sense for the NHS patients who live in that area, and that is the entire point: the Government are trading systems regulation for the individual decisions of local organisations, because that fits when we move to a competitive market in which every individual organisation is a competing business.

Dr Poulter: I am struggling to follow the coherence of the right hon. Gentleman’s argument. On the one hand he says that it was all right for non-foundation trusts, under the previous Government, to increase massively the amount of private work that they did, as long as the Department agreed with it; on the other hand he argues that it is very important to control the amount by which foundation trusts raise the private patient cap. He cannot have it both ways, and his argument is not intellectually coherent. Is this not about doing things for the benefit of patients and leaving it up to local hospitals to decide?

Andy Burnham: The hon. Gentleman should make a speech if he wants to make interventions of that length. We had a cap to protect the interests of private patients; he is getting rid of the cap, and he is going to have to explain to patients in his constituency, if waiting lists start getting longer, why that is happening. It is as simple as that. We had systems regulation, he is removing that with the Bill and we are moving to a more unregulated market, which is not what we want to see.

Grahame M. Morris: On a point of order, Mr Deputy Speaker. I wonder whether I might seek your advice in relation to a declaration of interest. The hon. Member for Boston and Skegness (Mark Simmonds) has made two interventions on the private patient cap and has made a declaration of interest. He is a director of Circle, a private health care company. Is it your ruling that every Member must make such a declaration if they speak during the course of this debate?

Mr Deputy Speaker (Mr Nigel Evans): It is up to each individual Member to make whichever declaration of interest they wish during a debate, but ultimately it is up then to the Member and the Commissioner if the Member wished to take that further.

Andy Burnham: The amendment gives us no protection at all, and it gives us no protection from the NHS cross-subsidising private care. There is nothing in the Bill which says, “The whole costs of the provision of that care have to be reimbursed to the national health service”, as the Financial Times has again demonstrated, and that is why we object to what is happening. We are

20 Mar 2012 : Column 722

going back to the old days of the NHS, whereby patients are told, “You can go private or you can go to the back of the queue and wait longer.” That is the choice which we removed from the NHS during our 13 years in government, and we will not accept any return of it.

Simon Hughes: I do not think that I have any more support or encouragement for the private sector in the NHS than the right hon. Gentleman does. May I therefore get him to accept that what Lords amendment 148 does is to limit in relation to each hospital an increase to—

Grahame M. Morris: 49%

Simon Hughes: No, to 5% of its current figure—not 5% in total, but a 5% proportion. That is what the amendment says, and that gives Guy’s hospital, St Thomas’s hospital and King’s College hospital and patients the reassurance that I think they need. The right hon. Gentleman should read the amendment.

Andy Burnham: I am not going to debate that now. The right hon. Gentleman is going to have to defend himself on whether he has his facts right. I do not think that he has.

We need to put firmly on the record that there are real flaws in the Liberal Democrats’ proposal. They say that it is a safeguard to state, “The governors will decide and it is better done at a local level,” but the governors are going to be under pressure from the management of the hospital because of the pressure on the hospital’s finances. If they make a decision that is in the interests of that hospital, it does not mean that it is in the interests of everybody and of NHS patients.

Paul Burstow: The model that the right hon. Gentleman describes is one that he was only too happy to go through the Lobby and support during the introduction of foundation trusts in the first place. He has omitted to mention Monitor’s role in overseeing the situation through its powers of intervention to ensure the safeguarding of a comprehensive health service, and to mention the guidance that the Secretary of State will give Monitor in order to do just that.

Andy Burnham: I am afraid that I am not at all reassured by that, or in fact by anything the Minister says. The letter that we have from the Deputy Prime Minister spoke of insulating the NHS from European competition law, but I am still waiting to see the amendment that delivers that. As I understand it, one of the Minister’s noble Friends tabled an amendment and then withdrew it, because they did not have the courage to press it to a vote, and accepted a statement on the record instead. This is different from what the Minister keeps saying that we did in government, because he is envisaging a huge expansion of the role of any qualified provider and the putting out to tender of commissioning support units. He has overseen a situation in which three community services have been compulsorily tendered.

The truth is that the Clegg-Williams letter, with the amendments that followed, does not only fail to deliver but sells out the national health service, as does so much of what the Liberal Democrats have agreed to. Our amendments, particularly amendment (b), would provide

20 Mar 2012 : Column 723

a measure of systems regulation in the best interests of the NHS, and that is why we will seek to press amendment (b) to a vote.

Dr Poulter: I rise to speak in support of the Government, and of what the previous Government did for the NHS. When the shadow Secretary of State was Secretary of State for Health—the same was the case with many of his predecessors—there was a consistent policy whereby the private sector should be used where it could add value to patient care in the NHS. That was done very effectively by the previous Government to bring down waiting times for operations, but it was not effective when it was not done in an integrated way. Very often, it was done without regard to post-discharge planning for patients but, as we heard earlier, the renewed focus on integration should help to deal with those problems.

We have some of the very best hospitals not only in this country but in the world, including the Royal Marsden and Moorfields eye hospital, where a relatively high proportion of activity is carried out by the private sector. No one doubts those hospitals’ commitment to their NHS patients or that they still provide those patients with the very high standards of care of which health care systems in other countries are very envious. We are very proud of what those hospitals do, and the Government would like to give other hospitals the same opportunity and freedom to follow their example. The Government believe that it is absolutely appropriate that we should use the private sector where it can enhance value to NHS patients. That is absolutely consistent with the previous Government’s policies, for which many Labour Members campaigned at the last general election. This Government are also committed to those policies.

Andrew George: I understand and respect the sincerity of the principle that my hon. Friend is describing, but can he reassure me, particularly given his understanding of the NHS and health systems, that under these proposals it would not be possible for a foundation trust to drive some NHS patients towards the private arm of the activities that they undertake, particularly in the case of procedures that are exactly the same in the private and the public sector?

Dr Poulter: My hon. Friend makes a valid point, and he is right to raise it. That happened in the past when, under the previous Government, private sector providers were paid 11% more for the provision of services than NHS providers, which created an incentive for the private sector to be used ahead of NHS services. This Government are committed to ensuring that that does not happen. My hon. Friend the Minister and my right hon. Friend the Minister and Member for Cheltenham—[ Interruption . ] I mean Chelmsford; I apologise, particularly as I get the train through his constituency on the way home every Thursday night. They have clearly stated that the Bill is about making sure that we use the private sector when it adds value for money. The hospital that uses the private sector the most—the Royal Marsden—does not have a two-tier service for NHS patients and private patients. The involvement of the private sector at that hospital greatly enhances the work of the NHS and the quality of service and care available to its NHS patients because of the increased research that is performed, the high

20 Mar 2012 : Column 724

quality of care, and the high standard of clinicians who are attracted to work there. That works well for the private sector and for the NHS.

I agree with the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) that, where possible, we should be using NHS providers. The Royal Marsden, where there is a high potential cap on private sector involvement, does not use the full capacity of that cap, and there is less private sector activity than it could undertake. That is because the Royal Marsden says, in effect, “Yes, the private sector is good, but it is not only about maximising our cap and maximising our profits but taking into account the best interests of our local patients and striking a balance.” That works very well.

7.45 pm

Andrew George: As I understand it, the majority of the private work at the Royal Marsden is in areas such as research and development that are not in any way similar to the services it provides to NHS patients. I asked my hon. Friend whether he agreed that where the private sector and public sector were providing the self-same services for NHS patients, there was a risk that patients might be driven from the NHS towards the private sector.

Dr Poulter: I hope I reassured my hon. Friend with my earlier answer. Yes, he is right that that has happened in the past. However, there is a presumption in the Bill—particularly for rural areas such as Cornwall and in Suffolk, which I represent—that the renewed focus on integrated care that we heard about earlier is the primary focus and purpose of commissioning, over and above the use of any willing provider or private sector providers. That has given me great reassurance regarding our ability to take on and deal with the big demographic challenges of looking after older people better.

I am reassured by what the Minister has said, and I urge Government Members to support the Government.

Alex Cunningham: I rise to support the amendment and to speak against anything that will allow 49% of the capacity of our local hospitals to be used for private patients.

Along with other measures in the Bill, the Government have accepted various amendments that will result in lengthening waiting lists for NHS patients. The Government’s relaxation of NHS waiting times targets means that hospitals are free to devote more theatre time to private patients, and they will have a clear incentive to do so in order to maximise income, given the move towards full financial independence and a “no bail-outs” culture whereby hospitals in financial trouble are allowed to go bust with no help from the Government.

The Health and Social Care (Community Health and Standards) Act 2003 placed a cap on the level of income that a foundation trust could earn from private patients. It was based on the level of a foundation trust’s private income in 2003—the year when foundation trusts first came into being—which was typically about 2%. The Bill in effect sets trusts free to deploy as much as 49% of that capacity to generate income from private patients

20 Mar 2012 : Column 725

who can afford the fees to jump the queues, which ordinary hard-working people, and the most vulnerable in our society, cannot do. This is not what patients want, not what the professionals want, and not what the NHS needs.

The Government amendments must be changed to ensure that any increase in the proportion of patient income has the approval of Monitor. Allowing individual trusts to make the decision alone means that there is no strategic overview, which Monitor would offer, and so in theory it would be possible for all the trusts in a locality to make that increase to 49% if their individual boards approved it. I wonder what that would mean on Teesside. We have two major hospitals, so half the capacity for NHS patients could go. Labour’s amendment would set a tougher cap on private patient income. Without the amendment, the NHS will take a huge step towards privatisation and we will fail to put in safeguards to ensure that the needs of the general public are met. Rather than the NHS being free at the point of delivery, more and more people will be pushed towards insurance schemes, thereby putting money in the pockets of the insurance industry and denying the exceptionally important right to have free, high-quality health care when it is needed.

Simon Hughes: I am absolutely clear that I was not sent to this place to force through the privatisation of the NHS, to force people from the public sector into the private sector, or to undermine great hospitals such as Guy’s, St Thomas’s and King’s College or the other hospitals in my constituency and my borough. Like colleagues from all parts of the House, I know what a fantastic service the NHS provides, not as a matter of policy but from personal experience. It saved the life of my younger brother and looked after my mother in her last days in the most fantastic way that anybody could wish for. I am clear about the commitment of the NHS.

I am therefore clear that we have to look at what the Bill says and what it will do. I have had an exchange about that with the shadow Secretary of State for Health. This is a really important issue outside this place. Clause 161 sets out the following principle:

“The principal purpose of an NHS foundation trust is the provision of goods and services for the purposes of the health service in England.”

That was not thought to be enough, so colleagues in the other place said, “Let’s for the first time ever make it clear that private activity can never be more than a minority activity.” That is why the 49% figure appeared.

However, that is not still enough—[ Interruption. ] Let me deal with this point. That is why Lords amendment 148 is before us. It states that if any foundation trust hospital in England proposes to increase its private income by 5% or more from its current level, which is usually about 2% or 3% of its income, the governors have to agree to the proposal by a majority. There will not be any great vote by the governors of Guy’s and St Thomas’s, King’s College or any other hospital, with the public participation in the debate that there would be, suddenly to increase their private sector activity. That is not the real world, because that is not what the British public want. There are one or two cases—

Andy Burnham: Will the right hon. Gentleman give way?

20 Mar 2012 : Column 726

Simon Hughes: In a second. There are one or two cases, such as the Royal Marsden, which have historically had a higher percentage of private sector activity. Those hospitals have justified doing so, because they are specialist hospitals that have got money in from outside. However, I do not want us to leave this debate letting the public believe that there will now be the opportunity for all the hospitals in England suddenly to move, without any control, towards undertaking huge amounts of private sector activity.

Andy Burnham rose

Paul Burstow rose

Simon Hughes: I will give way to my hon. Friend and then to the shadow Secretary of State.

Paul Burstow: I am grateful to my right hon. Friend for setting out these issues again so clearly and for putting to rest the myths that are yet again being fanned by Opposition Members. I confirm that the Bill provides two further safeguards. First, Monitor will continue to have a direct oversight role in this regard. It will be able to intervene and use its licensing powers and other powers to deal with concerns if NHS services are put at risk by the decisions of a foundation trust. Secondly, there are the contractual relationships that commissioners have directly with these organisations.

Simon Hughes: I accept that. That is why the amendments tabled by the right hon. Member for Leigh (Andy Burnham) are not necessary. Monitor already has a control that it can exercise to ensure that what he calls strategic control or central control is retained, as well as local decision making.

I will end this point by saying that although, technically, there could be a vote of the governors of any hospital—in the right hon. Gentleman’s constituency or mine—every year to increase private income by more than 5%, that is not the real world. In the real world, the people of this country love their national health service, NHS staff love their national health service, and the governors of the hospitals that I represent love their national health service. Those people are not suddenly going to change their attitude after 60 years of the NHS.

In the post-war Parliament, when the Labour party, supported by the Liberal party, put through the plans drawn up by Beveridge, the Liberal, for the NHS, it accepted from the beginning that there would be some private sector activity. From the beginning, GPs and some dental services were in the private sector, and they have remained there.

I am clear that the Bill does not mean that there will suddenly be a market, a route or a tramway for privatisation. Others say I am wrong—I know that there is a lot of concern—so I am clear that when the Bill becomes an Act, we need to sit down with the health professionals who still have concerns—[Hon. Members: “Too late.”] No, it is not too late if people understand what is really in the Bill, rather than what some people say is in the Bill. It is not too late if people look at the wording of the legislation, and do not just listen to the arguments about it.

20 Mar 2012 : Column 727

I say to the right hon. Member for Leigh, whom I respect in many ways, that he has often distorted what has happened in the past and what will happen now. He has ignored the facts that Labour forced privatisation on the health service in many parts of England and that Labour paid more to the private sector to carry out activities for the NHS. I am here to support these provisions in the Bill because I want to end the incentives for the private sector and to end the enforced privatisation of the health service. I will ensure that there is no chance of any hospital in my part of the world voting significantly to increase private sector activity, because the NHS wants to remain in the public sector and deserves to be supported by us to do so.

I refuse to be misrepresented by Labour colleagues who accuse us of doing something that we are not doing. We have a public national health service, paid for through our taxes. Everybody has an entitlement to the best care in the country. I will not do anything that undermines that. I hope that the right hon. Member for Leigh will not and that Ministers will not. I agree that we have some work to do to reassure people outside this place. I hope that, from today, the right hon. Gentleman will join me in telling the truth about the Bill and not tell untruths.

Lords amendment 63 agreed to.

Lords amendments 64 to 147 agreed to, with Commons financial privileges waived in respect of Lords amendments 132 to 141.

Clause 161

Goods and Services

Amendment (b) proposed to Lords amendment 148.—( Andy Burnham.)

Question put, That the amendment be made.

The House divided:

Ayes 235, Noes 313.

Division No. 501]

[7.56 pm


Abbott, Ms Diane

Abrahams, Debbie

Ainsworth, rh Mr Bob

Alexander, rh Mr Douglas

Alexander, Heidi

Allen, Mr Graham

Anderson, Mr David

Ashworth, Jonathan

Austin, Ian

Bailey, Mr Adrian

Bain, Mr William

Balls, rh Ed

Banks, Gordon

Barron, rh Mr Kevin

Bayley, Hugh

Benn, rh Hilary

Berger, Luciana

Betts, Mr Clive

Blackman-Woods, Roberta

Blenkinsop, Tom

Blomfield, Paul

Blunkett, rh Mr David

Bradshaw, rh Mr Ben

Brennan, Kevin

Brown, rh Mr Gordon

Brown, Lyn

Brown, rh Mr Nicholas

Brown, Mr Russell

Bryant, Chris

Buck, Ms Karen

Burden, Richard

Burnham, rh Andy

Byrne, rh Mr Liam

Campbell, Mr Alan

Campbell, Mr Gregory

Campbell, Mr Ronnie

Caton, Martin

Chapman, Mrs Jenny

Clark, Katy

Clarke, rh Mr Tom

Clwyd, rh Ann

Coffey, Ann

Connarty, Michael

Cooper, Rosie

Cooper, rh Yvette

Corbyn, Jeremy

Creagh, Mary

Creasy, Stella

Cryer, John

Cunningham, Alex

Cunningham, Mr Jim

Cunningham, Tony

Curran, Margaret

Dakin, Nic

Danczuk, Simon

Darling, rh Mr Alistair

David, Mr Wayne

Davidson, Mr Ian

Davies, Geraint

De Piero, Gloria

Denham, rh Mr John

Dobbin, Jim

Dobson, rh Frank

Docherty, Thomas

Dodds, rh Mr Nigel

Donaldson, rh Mr Jeffrey M.

Donohoe, Mr Brian H.

Doran, Mr Frank

Dowd, Jim

Doyle, Gemma

Dromey, Jack

Dugher, Michael

Durkan, Mark

Eagle, Ms Angela

Eagle, Maria

Edwards, Jonathan

Efford, Clive

Elliott, Julie

Ellman, Mrs Louise

Engel, Natascha

Esterson, Bill

Evans, Chris

Fitzpatrick, Jim

Flello, Robert

Flint, rh Caroline

Flynn, Paul

Fovargue, Yvonne

Francis, Dr Hywel

Gapes, Mike

Gardiner, Barry

Gilmore, Sheila

Glass, Pat

Glindon, Mrs Mary

Goodman, Helen

Greatrex, Tom

Green, Kate

Greenwood, Lilian

Griffith, Nia

Gwynne, Andrew

Hain, rh Mr Peter

Hamilton, Mr David

Hamilton, Fabian

Hanson, rh Mr David

Harman, rh Ms Harriet

Harris, Mr Tom

Healey, rh John

Hepburn, Mr Stephen

Hermon, Lady

Heyes, David

Hillier, Meg

Hilling, Julie

Hodge, rh Margaret

Hodgson, Mrs Sharon

Hoey, Kate

Hopkins, Kelvin

Hunt, Tristram

Irranca-Davies, Huw

Jackson, Glenda

James, Mrs Siân C.

Jamieson, Cathy

Jarvis, Dan

Johnson, rh Alan

Johnson, Diana

Jones, Helen

Jones, Susan Elan

Jowell, rh Tessa

Kaufman, rh Sir Gerald

Keeley, Barbara

Kendall, Liz

Khan, rh Sadiq

Lammy, rh Mr David

Lavery, Ian

Lazarowicz, Mark

Leslie, Chris

Lloyd, Tony

Llwyd, rh Mr Elfyn

Long, Naomi

Love, Mr Andrew

Lucas, Caroline

Lucas, Ian

Mactaggart, Fiona

Mahmood, Shabana

Malhotra, Seema

Mann, John

Marsden, Mr Gordon

McCabe, Steve

McCann, Mr Michael

McCarthy, Kerry

McClymont, Gregg

McCrea, Dr William

McDonagh, Siobhain

McDonnell, John

McFadden, rh Mr Pat

McGovern, Jim

McGuire, rh Mrs Anne

McKechin, Ann

McKenzie, Mr Iain

McKinnell, Catherine

Meacher, rh Mr Michael

Mearns, Ian

Michael, rh Alun

Miliband, rh David

Miliband, rh Edward

Miller, Andrew

Mitchell, Austin

Moon, Mrs Madeleine

Morden, Jessica

Morrice, Graeme


Morris, Grahame M.


Munn, Meg

Murphy, rh Mr Jim

Murphy, rh Paul

Murray, Ian

Nandy, Lisa

Nash, Pamela

O'Donnell, Fiona

Onwurah, Chi

Osborne, Sandra

Owen, Albert

Pearce, Teresa

Perkins, Toby

Pound, Stephen

Raynsford, rh Mr Nick

Reed, Mr Jamie

Reeves, Rachel

Reynolds, Emma

Reynolds, Jonathan

Riordan, Mrs Linda

Ritchie, Ms Margaret

Robertson, John

Robinson, Mr Geoffrey

Rotheram, Steve

Roy, Mr Frank

Roy, Lindsay

Ruane, Chris

Ruddock, rh Dame Joan

Sarwar, Anas

Seabeck, Alison

Shannon, Jim

Sharma, Mr Virendra

Sheerman, Mr Barry

Sheridan, Jim

Shuker, Gavin

Skinner, Mr Dennis

Slaughter, Mr Andy

Smith, rh Mr Andrew

Smith, Angela

Smith, Nick

Smith, Owen

Straw, rh Mr Jack

Stringer, Graham

Stuart, Ms Gisela

Sutcliffe, Mr Gerry

Tami, Mark

Thornberry, Emily

Timms, rh Stephen

Trickett, Jon

Turner, Karl

Twigg, Derek

Twigg, Stephen

Umunna, Mr Chuka

Vaz, rh Keith

Vaz, Valerie

Watson, Mr Tom

Whitehead, Dr Alan

Williams, Hywel

Wilson, Phil

Wilson, Sammy

Winnick, Mr David

Winterton, rh Ms Rosie

Wood, Mike

Woodcock, John

Woodward, rh Mr Shaun

Wright, David

Wright, Mr Iain

Tellers for the Ayes:

Mark Hendrick and

Graham Jones


Adams, Nigel

Afriyie, Adam

Aldous, Peter

Amess, Mr David

Andrew, Stuart

Bacon, Mr Richard

Baker, Norman

Baker, Steve

Baldry, Tony

Baldwin, Harriett

Barclay, Stephen

Barker, Gregory

Baron, Mr John

Barwell, Gavin

Bebb, Guto

Beith, rh Sir Alan

Bellingham, Mr Henry

Benyon, Richard

Beresford, Sir Paul

Berry, Jake

Bingham, Andrew

Binley, Mr Brian

Birtwistle, Gordon

Blackman, Bob

Blunt, Mr Crispin

Boles, Nick

Bone, Mr Peter

Bottomley, Sir Peter

Bradley, Karen

Brady, Mr Graham

Brake, rh Tom

Bray, Angie

Brazier, Mr Julian

Bridgen, Andrew

Brine, Steve

Brokenshire, James

Browne, Mr Jeremy

Bruce, Fiona

Bruce, rh Malcolm

Buckland, Mr Robert

Burley, Mr Aidan

Burns, Conor

Burns, rh Mr Simon

Burrowes, Mr David

Burstow, Paul

Burt, Alistair

Burt, Lorely

Byles, Dan

Cable, rh Vince

Cairns, Alun

Carmichael, rh Mr Alistair

Carmichael, Neil

Carswell, Mr Douglas

Cash, Mr William

Chishti, Rehman

Chope, Mr Christopher

Clappison, Mr James

Clark, rh Greg

Clarke, rh Mr Kenneth

Clifton-Brown, Geoffrey

Coffey, Dr Thérèse

Collins, Damian

Colvile, Oliver

Cox, Mr Geoffrey

Crabb, Stephen

Crouch, Tracey

Davey, rh Mr Edward

Davies, David T. C.


Davies, Glyn

Davies, Philip

Davis, rh Mr David

de Bois, Nick

Dinenage, Caroline

Djanogly, Mr Jonathan

Dorrell, rh Mr Stephen

Doyle-Price, Jackie

Drax, Richard

Duncan, rh Mr Alan

Duncan Smith, rh Mr Iain

Dunne, Mr Philip

Ellis, Michael

Ellison, Jane

Ellwood, Mr Tobias

Elphicke, Charlie

Eustice, George

Evans, Graham

Evans, Jonathan

Evennett, Mr David

Fabricant, Michael

Fallon, Michael

Foster, rh Mr Don

Fox, rh Dr Liam

Francois, rh Mr Mark

Freeman, George

Freer, Mike

Fullbrook, Lorraine

Fuller, Richard

Garnier, Mr Edward

Garnier, Mark

Gauke, Mr David

Gibb, Mr Nick

Gilbert, Stephen

Gillan, rh Mrs Cheryl

Glen, John

Goldsmith, Zac

Goodwill, Mr Robert

Gove, rh Michael

Graham, Richard

Grant, Mrs Helen

Gray, Mr James

Grayling, rh Chris

Green, Damian

Greening, rh Justine

Grieve, rh Mr Dominic

Griffiths, Andrew

Gummer, Ben

Gyimah, Mr Sam

Halfon, Robert

Hames, Duncan

Hammond, Stephen

Hands, Greg

Harper, Mr Mark

Harrington, Richard

Harris, Rebecca

Hart, Simon

Harvey, Nick

Haselhurst, rh Sir Alan

Hayes, Mr John

Heald, Oliver

Heath, Mr David

Heaton-Harris, Chris

Hemming, John

Henderson, Gordon

Hendry, Charles

Herbert, rh Nick

Hinds, Damian

Hoban, Mr Mark

Hollingbery, George

Hollobone, Mr Philip

Hopkins, Kris

Horwood, Martin

Howarth, Mr Gerald

Howell, John

Hughes, rh Simon

Huhne, rh Chris

Hunt, rh Mr Jeremy

Hunter, Mark

Hurd, Mr Nick

Jackson, Mr Stewart

James, Margot

Javid, Sajid

Jenkin, Mr Bernard

Johnson, Gareth

Johnson, Joseph

Jones, Andrew

Jones, Mr David

Jones, Mr Marcus

Kawczynski, Daniel

Kelly, Chris

Kirby, Simon

Knight, rh Mr Greg

Kwarteng, Kwasi

Laing, Mrs Eleanor

Lamb, Norman

Lancaster, Mark

Lansley, rh Mr Andrew

Latham, Pauline

Laws, rh Mr David

Leadsom, Andrea

Lee, Jessica

Lee, Dr Phillip

Leech, Mr John

Lefroy, Jeremy

Leigh, Mr Edward

Leslie, Charlotte

Letwin, rh Mr Oliver

Lewis, Brandon

Liddell-Grainger, Mr Ian

Lidington, rh Mr David

Lilley, rh Mr Peter

Lloyd, Stephen

Lopresti, Jack

Lord, Jonathan

Loughton, Tim

Lumley, Karen

Macleod, Mary

Main, Mrs Anne

Maude, rh Mr Francis

May, rh Mrs Theresa

Maynard, Paul

McCartney, Jason

McCartney, Karl

McIntosh, Miss Anne

McLoughlin, rh Mr Patrick

McPartland, Stephen

McVey, Esther

Mensch, Louise

Menzies, Mark

Metcalfe, Stephen

Miller, Maria

Mills, Nigel

Moore, rh Michael

Mordaunt, Penny

Morgan, Nicky

Morris, Anne Marie

Morris, David

Morris, James

Mosley, Stephen

Mowat, David

Mundell, rh David

Murray, Sheryll

Neill, Robert

Newmark, Mr Brooks

Newton, Sarah

Nokes, Caroline

Norman, Jesse

Nuttall, Mr David

O'Brien, Mr Stephen

Offord, Mr Matthew

Ollerenshaw, Eric

Opperman, Guy

Ottaway, Richard

Paice, rh Mr James

Parish, Neil

Patel, Priti

Pawsey, Mark

Penning, Mike

Penrose, John

Percy, Andrew

Perry, Claire

Phillips, Stephen

Pincher, Christopher

Poulter, Dr Daniel

Prisk, Mr Mark

Randall, rh Mr John

Reckless, Mark

Redwood, rh Mr John

Rees-Mogg, Jacob

Reevell, Simon

Reid, Mr Alan

Robertson, Hugh

Robertson, Mr Laurence

Rogerson, Dan

Rosindell, Andrew

Rudd, Amber

Ruffley, Mr David

Russell, Sir Bob

Rutley, David

Sandys, Laura

Scott, Mr Lee

Selous, Andrew

Shapps, rh Grant

Sharma, Alok

Shelbrooke, Alec

Simmonds, Mark

Simpson, Mr Keith

Skidmore, Chris

Smith, Miss Chloe

Smith, Henry

Smith, Julian

Smith, Sir Robert

Soubry, Anna

Spelman, rh Mrs Caroline

Spencer, Mr Mark

Stanley, rh Sir John

Stephenson, Andrew

Stevenson, John

Stewart, Bob

Stewart, Iain

Stewart, Rory

Streeter, Mr Gary

Stride, Mel

Stuart, Mr Graham

Stunell, Andrew

Sturdy, Julian

Swayne, rh Mr Desmond

Swire, rh Mr Hugo

Syms, Mr Robert

Teather, Sarah

Thurso, John

Timpson, Mr Edward

Tomlinson, Justin

Tredinnick, David

Truss, Elizabeth

Turner, Mr Andrew

Tyrie, Mr Andrew

Uppal, Paul

Vaizey, Mr Edward

Vara, Mr Shailesh

Vickers, Martin

Villiers, rh Mrs Theresa

Walker, Mr Charles

Walker, Mr Robin

Wallace, Mr Ben

Watkinson, Angela

Weatherley, Mike

Webb, Steve

Wharton, James

Wheeler, Heather

White, Chris

Whittingdale, Mr John

Wiggin, Bill

Willetts, rh Mr David

Williams, Mr Mark

Williams, Roger

Williams, Stephen

Williamson, Gavin

Wilson, Mr Rob

Wollaston, Dr Sarah

Wright, Jeremy

Wright, Simon

Young, rh Sir George

Zahawi, Nadhim

Tellers for the Noes:

Jenny Willott and

James Duddridge

Question accordingly negatived.

20 Mar 2012 : Column 728

20 Mar 2012 : Column 729

20 Mar 2012 : Column 730

20 Mar 2012 : Column 731

8.10 pm

Proceedings interrupted (Programme Order, this day).

The Deputy Speaker put forthwith the Question necessary for the disposal of the business to be concluded at that time (Standing Order No. 83F).

Lords amendments 148 to 167, 242, 246, 248, 252, 287, 292 to 326, 328 to 332, and 335 to 365 agreed to, with Commons financial privileges waived in respect of Lords amendments 319 and 320.

Clause 14

Other services etc. provided as part of the health service

Paul Burstow: I beg to move, That this House agrees with Lords amendment 11.

Mr Deputy Speaker (Mr Nigel Evans): With this we will consider Lords amendments 12, 43 to 53, 61, 62, 168 to 241, 243 to 245, 247, 249 to 251, 253 to 286, 288 to 291, 327, 333, 334 and 366 to 374.

20 Mar 2012 : Column 732

Paul Burstow: This group encompasses a number of Lords amendments relating to public health, public involvement, local government, the Health and Care Professions Council, the National Institute for Health and Clinical Excellence and the NHS Information Centre.

We believe that the Bill has been improved as a result of the amendments made in the House of Lords. For example, the Government have directly addressed the concerns raised in this House and elsewhere about the status and security of directors of public health within local authorities. We have also introduced safeguards to ensure that local healthwatch organisations and HealthWatch England can operate effectively within the Care Quality Commission, and that the CQC can have better links with, and transparency to, local healthwatch organisations.

Throughout the Bill, we have emphasised the importance of public health. In particular, local directors of public health will have a leading role within their local authorities in ensuring that public health is a consideration across the full range of local government activity, not just its health responsibilities. For example, they will use their participation in health and wellbeing boards, alongside directors of adult social services, directors of children’s services and clinical commissioning groups, to find innovative solutions to local health needs.

To further strengthen the status of public health in local authorities, amendments tabled by my noble friend Earl Howe establish directors of public health as statutory chief officers of their local authorities. They also give the Secretary of State the power to issue guidance on the role of directors and other public health staff, to which local authorities must have regard. Along with the guarantee of chief officer status and statutory guidance, that is equivalent to the situation that currently applies to directors of children’s services and of adult social services.

Other Lords amendments will enable us to give directors of public health a key new role in considering applications for the licensing of premises for the sale of alcohol, and enable the national child measurement programme to continue once it is transferred to local authorities.

Beyond the provisions of the Bill, we have stated clearly that Public Health England will have a board with an independent, non-executive majority and an independent chair, to provide the chief executive and the Secretary of State with frank and expert challenge. Public Health England’s ability to undertake research and bid for external funding for health protection research in the same way as the Health Protection Agency is also provided for in the Bill as now drafted. Finally on public health, we have announced our intention, subject to consultation, to require the registration of non-medical public health specialists with the Health Professions Council.

We introduced safeguards in the other place to ensure that HealthWatch England could operate effectively within the CQC and have better links with, and transparency to, local healthwatch organisations. That will help to ensure that issues arising between them can be addressed, and local authorities and local healthwatch organisations will have to have regard to similar guidance. HealthWatch England will also exercise additional functions to assist local authorities with the arrangements that they make for local healthwatch. HealthWatch England may make recommendations of a general nature to

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local authorities about the making of those arrangements. When it is of the opinion that local healthwatch activities are not being properly carried out, it can draw that to the attention of the local authority.

The Lords amendments will ensure that regulations are able to, and in some cases must, make adequate and appropriate provision about HealthWatch England’s membership. That will include specifying that the majority of members must not be members of the CQC board, and setting out the procedures for selecting members or proposing persons for appointment as members. We listened to the concerns on that issue and have now undertaken a public consultation on the proposed regulations. The results are currently being carefully analysed.

A number of the amendments in this group apply to local healthwatch organisations. They will strengthen the statutory powers of those organisations, enabling them to become a powerful champion of patients’ interests locally. As a result of the Bill, they will have stronger and more wide-ranging powers than local involvement networks do under the current arrangements. The Government are ardent proponents of localism and of local authorities being able to take account of local needs and be accountable to their local population for the decisions that they make.

8.15 pm

Simon Hughes: One thing that has got lost in all the noise about the Bill is the fact that there will be more opportunity for local authorities and local people in England to be engaged. Will my hon. Friend put on record how an ordinary constituent of his in Sutton, mine in Southwark or anywhere else—not a professional such as a GP or a nurse—will be able to get involved? I think there will be a much better system in future than there has been.

Paul Burstow: My right hon. Friend is absolutely right. Hard-wired throughout the Bill are requirements on patient and public involvement in clinical commissioning groups and health and wellbeing boards. Local healthwatch will provide a vehicle for delivering much wider engagement. One criticism that has often been levelled at past attempts at public and patient engagement has been the absence of hard-to-reach groups, which are seldom heard from in our health system. As a result, their voices have not helped to shape commissioning decisions. We need to ensure that they do, so that CCGs commission effectively for their whole population. That is a key part of what the Bill provides for.

As the Bill makes its way on to the statute book, Members of all parties will need to look closely at the opportunities for far wider public involvement that will result from how it has been improved. We have listened closely to groups such as the Richmond group, which has been a powerful advocate on behalf of a wide range of patients’ groups. It has talked about the importance of involving patients far more in co-production and commissioning decisions. That is an essential component of how we intend the Bill to be given effect in the months to come.

In tabling our amendments in the House of Lords, we wanted to ensure that local authorities had greater flexibility in the organisational form that local healthwatch

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takes. Local authorities are best placed to make decisions about the right way to commission a local healthwatch service for their area, but they cannot decide not to have a local healthwatch organisation, and we would not allow them to do that. It is essential that the voice of patients and carers is heard loud and clear in the decision-making processes of our NHS and social care services.

Andrew George: I am grateful to my hon. Friend, particularly for his last remark. I know that he will come on to Lords amendment 181, but I could not find anything in the debate in the House of Lords justifying the rationale behind the provisions relating to the establishment of local healthwatch organisations as statutory bodies corporate. I am sure that he is just about to provide that rationale.

Paul Burstow: I am grateful to my hon. Friend for the opportunity to do just that. First and foremost, I want to be absolutely clear that local authorities are under a statutory duty to ensure that local healthwatch arrangements are put in place. The Lords amendments do not change that one iota, and they do not in any way weaken the statutory functions conferred upon local healthwatch organisations. Nor do they enable local authorities in some way to limit, restrict or censor what local healthwatch organisations can do. Indeed, we tabled amendments to ensure there are better safeguards in relation to how local authorities carry out their role. The Secretary of State will be able to publish guidance relating to potential conflicts of interest between a local authority and its local healthwatch organisation, to which both sides must have regard. We have provided for HealthWatch England to make recommendations in that respect, but to be absolutely clear, local healthwatch has a statutory basis. All that has changed is that we want to enable local decisions about whether it is a social enterprise, a voluntary organisation or another format.

Grahame M. Morris: Will the Minister clarify that point and the issue raised earlier by the right hon. Member for Bermondsey and Old Southwark (Simon Hughes)? One Lords amendment allows a local authority to commission a community interest company, charity or other form of social enterprise that meets the prescribed criteria to be the local healthwatch for its area, and allows local healthwatch to make arrangements with others to carry out its functions—it effectively allows local healthwatch to delegate its functions to a community interest company. How does that address the concerns raised by the right hon. Gentleman? How would an individual constituent have their interests represented through a local healthwatch if it is no longer a statutory body?

Paul Burstow: The point is that the body will discharge a number of statutory functions. The models that the hon. Gentleman describes—community interest companies and other forms of mutual or social enterprise—are exactly the sort of organisations that are likely to engage more effectively with community interests and bring in a wider range of them. That is why we want that flexibility in the organisational form, against a set of criteria to safeguard the interests of the public. The public can tailor those organisational forms to meet the needs of their local community. That corporate envelope does not guarantee anything; the legislation still provides a statutory basis.

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Simon Hughes rose

Paul Burstow: I see that my right hon. Friend wants to intervene.

Simon Hughes: One last time—I am grateful to the Minister. Will he put on the record what constituents all over England can do if, for example, they hear that their hospital might want to close a ward for the mentally ill, or close accident and emergency services, or if it realises that there is no day care for people with mental illness? What power do they have to stop or start something?

Hon. Members: None!

Paul Burstow: Despite the noises off, the fact is that there is considerable scope for that sort of public shaping.

Let me talk my right hon. Friend through some of those changes. We are establishing local health and wellbeing boards, which are made up of clinical commissioning groups, elected local authority members, the various directors to which I just referred, and, importantly, local healthwatch organisations. They have the statutory responsibility for identifying population need for their area and for then framing the strategy to meet those needs. The local commissioner must evidence that the strategies for delivering that—the local commissioning plans—reflect the commissioning strategy that has been produced by the health and wellbeing board. That is the first opportunity to intervene and to help shape the nature of services that are being commissioned for a local population. Indeed, we made amendments that make it clear that health and wellbeing boards must involve their population in that work.

The next stage when people can be involved is when the clinical commissioning group produces its commissioning intentions and plan. CCGs have obligations to consult on their plans and to involve the public in their formulation. That is a further opportunity, but beyond it there is a role in commissioning decisions, or decisions to change or reconfigure a service, for the local authority’s health and overview scrutiny committee, which we are retaining and enhancing, so that, for the first time, NHS providers in the public sector or private providers providing NHS-contracted services can be held accountable for their decisions. That is a change from the arrangements under the previous Administration.

Those are just a few of the steps, but ultimately we have retained the provisions for a reference by the local authority to the Secretary of State to make decisions regarding major reconfigurations. There are a number of steps. I hope that that reassures my right hon. Friend and gives the lie to those who suggest that the provisions have been watered down—the contrary is the case.

We have committed to use the Secretary of State’s powers to specify the criteria that local healthwatch organisations must satisfy when it comes to strong involvement by volunteers and lay members, including in their governance and leadership. We want to ensure that local healthwatch organisations break out of existing models and find ways of reaching and involving far wider and more representative populations than hitherto.

I can confirm that there are a number of amendments, the majority of which are technical in nature, relating to the Health and Care Professions Council, NICE, and the NHS Information Centre. Part 7 of the Bill relates

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to the regulation of health and social care workers. The Government have made a technical alteration to the provisions amending article 12 of the Health Professions Order 2001 to enable the Health Professions Council to recognise training undertaken in Wales, Scotland and Northern Ireland as sufficient for admission to its register as a social worker. The amendments also give the council the power to assess training or professional expertise and experience in social work gained outside England but within the UK.

Part 8 of the Bill establishes the National Institute for Health and Care Excellence—I emphasise the word “care”—and extends its remit to adults’ and children’s social care. NICE will play a central role in driving quality improvement through the production of robust, evidence-based quality standards and other guidance across the NHS, social care and public health. That is yet another measure in the Bill that supports and drives greater integration of health and social care than has existed in the past. The Government have made minor and technical amendments to part 8 to avoid the potential for misinterpretation and to ensure that NICE’s functions can be exercised effectively in practice.

It is important that patients continue to have access to NICE-approved drugs and treatments in line with the NHS constitution and accompanying handbook, whether those fall within the future responsibilities of the NHS or of local authorities. We have therefore amended the regulation-making power in clause 234 of part 8 so that the provision in regulations to replicate the effect of the current funding direction for NICE technology appraisal recommendations may also be applied to local authorities in respect of the drugs and treatments that they may prescribe for public health purposes, such as smoking cessation aids.

Part 9 establishes for the first time the NHS Information Centre in primary legislation, setting out its powers in relation to the collection, analysis, publication or dissemination of information. The Government have made a number of amendments—to clauses 255 and 257—and inserted new clauses after clauses 252 and 257 that further strengthen the protection of individuals’ confidential personal information while ensuring that the wider benefits of safely and securely sharing information, which include improvements in the quality of services and treatments, can be realised.

The amendments will, for example, restrict the people who can require the centre to collect confidential, personal, identifiable information; clarify the circumstances in which the centre may require others to provide it with confidential, personal, identifiable information; and require a code of practice to be published, setting out how confidential information must be handled. That provides an essential safe haven that can provide a powerful driver to support research and quality improvement in the NHS.

To support these amendments, we have made a number of minor and technical amendments to part 9 and to schedule 19. Finally, we made a minor and technical amendment in part 11 relating to the transfer scheme, which is set out in clause 294. That provision allows for flexibility in how the Secretary of State holds his shares in any property company. That is normal for company structures and is in a form already used by the Secretary of State with his other companies.

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I urge hon. Members to support these amendments, including amendment 181.

Liz Kendall: I start by sharing with hon. Members a letter to the Prime Minister on 13 March from Malcolm Alexander, who is the chair of the National Association of LINks Members, the national body representing 150 statutory independent local involvement networks that promote the public and patient voice in health and social care. The letter is about the amendments to HealthWatch that were made in the other place and are before us now. He wrote to register his

“strong objections to the government’s major policy change on Healthwatch—specifically your decision to abandon plans to establish statutory Local Healthwatch bodies…Instead of creating independent statutory bodies led by local people who can monitor, influence, involve the public, hold the local authority and NHS to account; the government plan to create weak bodies that will not be independent, but will be funded by and accountable to the local authority they are monitoring. There will be no genuine accountability to the public.”

He then makes this rather perceptive comment:

“Plans for a statutory Healthwatch body were probably the only part of the Health and Social Care Bill that had any public support.”

He continues:

“Your government’s ambition”—

not your Government, Mr Deputy Speaker, but the Prime Minister’s—

“to establish independent, statutory Healthwatch organisations that would help achieve equity and empowerment in relation to access to NHS and social care services, has been diminished to such a degree, that Healthwatch will have little impact…The aspiration to achieve equity and excellence in public involvement in health and social care, especially for the most vulnerable people, has been replaced by a model that has lost its central purpose of building effective patient and user led bodies that can influence the planning of health and social care.”

8.30 pm

I will continue reading from this letter because if the Government really want to hear the patient and public voice, Members should do too, and that is what Malcolm Alexander represents. He writes:

“In our discussions with the Earl Howe and”

the Department of Health

“over the past year, we were led to believe that LINks would evolve and go through a transition into Healthwatch. It is incomprehensible to us that the plans that were developing for Healthwatch have been replaced, at very short notice, by a highly confusing set of amendments to the Health and Social Care Bill that are very unlikely to achieve the objectives of the Transition Plan and will be very poor”

value for money. He continues:

“It was the stated policy of the Coalition that patients and users of social care must be at the heart of everything that is done—not just as beneficiaries of care, but as participants, in shared decision-making.”

Malcolm Alexander also writes that the Secretary of State

“has continuously said, ‘there should be no decision about us, without us’. Why has this promise and aspiration been abandoned and why is the government planning to abolish plans for an effective statutory model of local Healthwatch and replacing it with one that will be chaotic, diffuse and weak with no leadership role for patients and the public? Instead of engaged and empowered patients and users of social services taking a leading role—many

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volunteers who have led LINks are feeling disempowered, demoralised and demotivated. We had hoped and believed that at last Healthwatch would genuinely empower”

patients and the public

“through being populated by ordinary people in the community. This hope is now lost.”

He finishes with an apt comment on the entire Bill:

“This is a betrayal of public trust and an appalling waste of public money.”

The Government have repeatedly claimed that the Bill will put patients and the public at the heart of the NHS and that a crucial core purpose of the Bill is that for patients there will be “no decision about me without me.” Nothing could be further from the truth. Opposition Members have consistently argued, since the first Commons Committee stage, that the Government’s proposals for HealthWatch are weak and ineffective, and will fail to give patients a strong and independent voice to shape local health and council services. [Interruption.] The Minister chunters from a sedentary position. We always saw through the Government’s plans; now everyone else has too.

More than 67 Government amendments about HealthWatch England and local healthwatch bodies were tabled in the other place. These amendments make major changes to the Government’s original proposals, ensuring that they will be even weaker still. The Government’s amendments 181 and 366, tabled in the other place, remove clause 179 and the related schedule 15, which place a requirement on local healthwatch organisations to be statutory bodies. As the NALM rightly says, the Government made this change without any prior mention to the House, or even in Committee in the other place, and more importantly without any consultation with patients’ groups.

Local authorities will now contract social enterprises or voluntary organisations to provide local healthwatch functions. Councils will be able to split these functions if they choose. The small voluntary groups, social enterprises and, indeed, private sector bodies will be expected somehow to provide a strong and critical voice on behalf of patients about local services—services that may be provided by the very local councils contracting and funding them. The joint effect of these amendments is to divide up the functions of HealthWatch, to break down the synergies between the different roles, to require bidding to win tenders for the delivery of various services and to leave local healthwatch bodies with no automatic consistency or authority to speak on behalf of a community.

The Government have repeatedly argued that the Bill is necessary to give clinical commissioning groups statutory status, to guarantee that professionals are in the driving seat. The question is: why are the Government giving organisations that are supposed to empower professionals a statutory status, but now removing that status from the bodies that are supposed to empower patients? The weak status of HealthWatch England nationally remains. It is still a mere committee of the Care Quality Commission. All that the Government have done is say that a majority of members on the committee should not be members of the CQC. HealthWatch England should be the voice of the people in the NHS. Making it a committee of the CQC is a fundamental error. Patients and the public must have confidence that HealthWatch England will speak up for them, including where it believes that the Care Quality Commission has failed to monitor or

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inspect local NHS services or local council services properly, including care homes. How will HealthWatch England do that if it is funded and housed within the CQC, an organisation that has already been criticised for lacking strategic focus and the resources necessary to do its job effectively?

The Government say that HealthWatch must be part of the CQC in order to get access to information and other resources. However, if the duty in the Bill on all NHS organisations to collaborate—a duty that the Government have made much of—is so strong, why would it not also apply to the CQC in collaborating with a separate, independent HealthWatch England? The Government have also completely failed to ensure that HealthWatch will have the ring-fenced funding that it needs to do its job properly. Funding for HealthWatch England and local healthwatch bodies is only £20 million, compared with £492 million for the NHS Commissioning Board and £140 million a year for Monitor. HealthWatch would have already struggled to provide an equally strong voice in the NHS for patients and the public on the basis of those resources, but now the Minister in the other place, Baroness Northover, has made it clear that funding for local healthwatch bodies will not be ring-fenced, but instead be part of the formula-based grant to local councils. Failing to ring-fence local healthwatch funding will virtually guarantee that those bodies will fail to provide a strong local voice.

That is not just my view; it is the view of National Voices, which represents 150 patient groups, and says that giving local healthwatch groups a strong voice will be possible only if

“the funding is ring-fenced. Otherwise local authorities will continue to use the funding for what they regard as higher priorities.”

National Voices says that HealthWatch is being “set up to fail”. It is right. In its latest briefing on the Bill, it says that the risks the Bill poses include a

“lack of independence at national and local levels…insufficient power…insufficient funding,”

weak support for the transition, and

“reform fatigue among local activists.”

Andrew George: I am listening carefully to the hon. Lady’s arguments about the structure and funding of local healthwatch bodies and HealthWatch England. I ask this question not to be deliberately mischievous, but in view of her comments and criticisms: what is the preferred option of the Labour party for those scrutiny bodies?

Liz Kendall: I would encourage the hon. Gentleman to read the Opposition Front Bench amendment tabled in the House of Lords, which set out how we could have a separate independent, body with clear lines of accountability to local healthwatch organisations. That is the policy of the Opposition. Unfortunately, however, that amendment was not accepted.

National Voices represents 150 patient groups. I was interested that the Minister said that the Richmond Group of charities somehow supported everything that the Government were doing in this area. However, I should remind the House that National Voices includes groups such as Asthma UK, Arthritis Care, the British Heart Foundation, Breast Cancer Care, Carers UK, Cancer Research UK, Diabetes UK, Dementia UK,

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Mencap, Mind, Macmillan Cancer Support, Rethink Mental Illness, the Stroke Association and many others. Those groups are saying that the Government are setting HealthWatch up to fail, because it will not provide a strong enough voice for patients and the public.

Interestingly, officials within the Government’s own Department are saying the same thing. Hon. Members will know that the Government have refused to publish the transition risk register, but today I have been passed the risk register from the Department of Health’s programme board for HealthWatch. It is marked “Restricted”, and it sets out clearly what the Department’s officials see as the risks involved in the Government’s proposals on HealthWatch. It deals with high risk in terms of impact, as well as with likelihood, so it does involve prediction.

The risk register says that there is a high risk that

“existing LINks members and volunteers become disenchanted about the new arrangements for local HealthWatch and leave the system”

because of “insufficient consultation”. It goes on to say that there is a high risk that local authorities

“will not invest in establishing effective relationships with existing LINks and other community organisations”

because the process has been poorly managed. It states that there is a high risk that there will be a “narrow engagement group” and that HealthWatch

“doesn’t work effectively with providers and commissioners. HW is not fully representative.”

It identifies the cause for that as the engagement process having been “insufficiently inclusive”. It sees a further high risk in relation to HealthWatch England:

“The establishment of the HWE committee within CQC is either too isolated or too prescribed by DH/CQC plans.”

The cause is identified:

“Early design processes for establishing HWE do not engage broad range of partners resulting to ineffective regulations being laid.”

Those ineffective regulations are being laid by this Government, according to the risk register of the Department of Health’s own HealthWatch programme board.

Some of the Lords amendments in this group would make minor improvements to the Bill in relation to the National Institute for Health and Clinical Excellence and to the functioning of the information centre. I want to return to the Minister’s earlier claim that huge improvements would be seen in public health. Some amendments relate to the employment of public health professionals by local authorities. The trouble is that the Faculty of Public Health, the body that represents those people, opposes the Bill and wants it to be dropped. It has stated that the Bill will widen inequalities, increase health care costs and reduce the quality of care. It says that there are significant risks—[ Interruption. ] If hon. Members are making claims that their Bill will improve public health and that the amendments will improve arrangements for public health professionals, perhaps they should listen to the views of those public health professionals. The Faculty of Public Health has identified

“significant risks associated with the NHS structures, the new health system and environment that the Bill will enact.”

The right hon. Member for Bermondsey and Old Southwark (Simon Hughes) was, perhaps courageously, trying to get the Minister to set out what powers local

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authorities would have under the new system. He will know, however, that health and wellbeing boards will not have the final say over GP commissioning plans. They will not be able to stop them. The only course left to them will be to appeal to the NHS Commissioning Board. I would respectfully point out to the right hon. Gentleman that if he thinks that the NHS Commissioning Board will automatically agree to complaints from local authorities, his experience of the NHS is very different from mine. We need to be clear that there will be no sign-off by health and wellbeing boards.

Simon Hughes: These are important issues, but I hope the hon. Lady recognises that on the public health agenda, which Labour Members regularly say is so important, there is now—I think for the first time—written into legislation an obligation on the Secretary of State, and therefore on the NHS, to secure

“continuous improvement in the quality of services provided to individuals for or in connection with…the protection or improvement of public health.”

That must be reflected all the way down the tree; it will not stay only in the Department of Health office.

8.45 pm

Liz Kendall: The right hon. Gentleman might think that that on its own will protect the system, but as he well knows, I am pointing out what public health professionals are saying. [Interruption.] What I am saying is that the Secretary of State’s interpretation of the Bill is not shared by those who work in public health who think that there are huge risks in it. I was also making the point that when it comes to the fundamental issue of the control or powers of the health and wellbeing boards, we should be very clear that they do not have sign-off. That was my point.

Steve Brine (Winchester) (Con): I was unfairly chuntering from a sedentary position a minute ago, and I thought I would like to place something on the record. The hon. Lady refers to the Faculty of Public Health, and I have obviously heard its public comments about the Bill. However, it is right there in new section 1B in clause 3 that the Secretary of State has a duty “to reduce inequalities”. I heard an Opposition Member chuntering from a sedentary position earlier, too, to the effect that this is a matter of faith and trust, but this House’s job is to scrutinise and enact legislation. There it is in the Bill in black and white—on green —[Interruption.] Yes, for the first time in 13 years, as I do not recall seeing it in any national health Bill before.

Liz Kendall: The point is that the rest of the Bill absolutely trumps that. That is the concern of others—[Interruption.] Conservative Members groan, but people who work in the system say that the Bill—[Interruption.] The hon. Member for Winchester (Steve Brine)has not stumped me. He said that one phrase in a Bill is supposedly going to outweigh the rest of the implications in the Bill, which the Faculty of Public Health says will increase the postcode lottery and widen inequalities, without providing value for money or improving the quality of services. Conservative Members should listen to the concerns of the people who work in the system.

Ms Diane Abbott (Hackney North and Stoke Newington) (Lab): Does my hon. Friend agree with me—

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Mr Simon Burns: No.

Ms Abbott: She will, you know. Does she agree that it is apparent over the years that it is one thing to see an intention built into a Bill, but quite another to see it implemented on the ground? It is the contention of Opposition Members that, worthwhile as the statements in the Bill are, in the context of this particular car crash of a Bill, some of those intentions around public health will be dead on arrival.

Liz Kendall: I thank my hon. Friend for her, as always, powerful and eloquent description of the realities of the Bill.

Mr Burns: Will the hon. Lady give way?

Liz Kendall: No, I am not giving way to the Minister.

Although I have said that a number of amendments in the group make minor improvements regarding NICE and the functioning of the information centre, they are overwhelmingly—

Mr Burns: Will the hon. Lady give way?

Liz Kendall: I have told the Minister that I am not giving way to him.

These amendments are overwhelmingly outweighed by the huge change put forward by the Government in abolishing an effective statutory model for healthwatch bodies locally, which was supposed to give patients and the public a strong and independent voice in the NHS. Labour Members cannot accept the Government’s removal of that statutory body, which they promised and have now betrayed. The amendments make a mockery of the Deputy Prime Minister’s claim in the letter he wrote with Baroness Williams to Liberal Democrat Members that the Bill will ensure “proper accountability” to the public. It makes a mockery, too, of the claims made by the Secretary of State and the Prime Minister that this Bill will put real power into the hands of patients and the public, and that there will be “No decision about me without me.” And, as the national body that represents patients and public involvement in the NHS has said, it is

“a betrayal of public trust”.

This is what has happened throughout the proceedings on a Bill for which the Government—Conservatives and Liberal Democrats—have no mandate, and for which they know they have no mandate. They promised that there would be no top-down reorganisation, but did not present any proposals for an independent regulator on the basis of the system that exists in the privatised utilities because they were worried about what people would say. Above all, on this fundamental issue, which concerns the say that the public and patients have in the NHS, the Government have—as the National Association of LINks Members said—betrayed people’s trust in what they promised, and for that reason we will not support the amendments.

Simon Hughes: These amendments—the last group that we shall consider tonight—contain important issues, including that of local community involvement, which was raised by the hon. Member for Leicester West (Liz Kendall). Like other Members, I have an interest in the

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subject, and have had throughout my time in politics. I happen to know Malcolm Alexander—who was cited by the hon. Lady—very well, because he was once secretary of Southwark community health council.

Let me present my honest opinion of the Bill to my friends on the Government Front Bench. It is not the Bill that I would have presented to Parliament. I think that it has gone much too far in its efforts to introduce top-down reorganisation, which is not what we told the public we would give them; and although there was a fine balance between the arguments in favour of primary care trusts and those in favour of the new structure that we have created, I believe that by changing what we said we would do we have caused more uncertainty, not least among health professionals.

Nevertheless, I am convinced that the process to which the Bill has been subjected has improved it hugely. I am convinced that a year ago my party colleagues performed a public service by setting out an agenda for change, and that we have helped to persuade the Government to amend the Bill in 2,000 different ways. That is not my figure, but one given by the Library in a note with which it provided us before the debate. Since the Bill returned to Committee about a year ago, 2,000 amendments have been tabled, many of them in the House of Commons after the Future Forum had done its work. Today we are considering—technically—374 amendments, all of which are going in the right direction.

It is interesting to observe that only three Labour amendments have been tabled today to the changes proposed by the House of Lords, and that two of them dealt with the same issue. Effectively, that means that the Labour Front Bench has sought to change only three of the many proposals made by the Lords. Of course the 374 amendments are not all substantive—some are consequential, and some are small—but we should not undermine or understate the substantive changes that have been made since the Bill left this place.

Many outside the House believe that there is an opportunity for Members of Parliament to vote on every Bill at the end of all its proceedings, and to deliver a final yes or no decision. There is not, although I think that there should be. I hope to persuade colleagues that we can change our procedure so that all public legislation, whether it starts in the Lords or the Commons, ends up in the Commons for Third Reading. I think that that would make for more democratically accountable decisions. We could then examine the Bill as amended by the Lords, and take a final view. However, we are not there yet; tonight we are considering all these amendments, and with them I thoroughly concur.

I have listened to the debate about accountability, and I accept that there is real disagreement on whether the new system proposed by the Government, at short notice, is an adequate substitute for the statutory HealthWatch. I remember a time—the hon. Member for Leicester West was not in the House then—when, from the Opposition Benches, I ferociously opposed the Labour Government’s proposal to abolish community health councils. I thought that it was a move in the wrong direction, as did my constituents. I still believe that any measure that does not empower my constituents—

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and the hon. Lady’s in Leicester—and enable them to become involved in decisions, consultations and processes will not be a good thing.

Ministers have been asked some perfectly proper questions today, and I am not 100% persuaded that their answers suggest that we will have the best possible system. Let me be absolutely honest: I believe that although, by and large, the amendments contain huge improvements, there is a great deal of unfinished business. Some will be dealt with in regulations, which will enable us to return to these matters, while some will be judged on the basis of experience.

I asked my hon. Friend the Minister of State to put on record the way in which the public can be more involved, because I am clear that there are significant additional opportunities for the public to become involved. That is why, in those areas, it is a good Bill. I am clear that local councils should have more involvement. He may remember that, as my party’s representative when the Bill setting up the Greater London authority was introduced, I argued that the GLA should have the power of the London strategic health authority, so that there would be a democratically accountable strategic health authority. I have always believed in more accountable local health services and in local councillors and councils having more say.

Liz Kendall: The right hon. Gentleman says that there is more to do and that that can be done in regulations, but that is not the case on the amendment that we are being asked to agree, which will abolish local healthwatch organisations as statutory bodies. That cannot be changed in regulations. Will he vote against that?

Simon Hughes: I understand that. I was not pretending that everything could be dealt with in regulations. I said to the hon. Lady, I hope fairly—I am trying to be fair—that I thought she made a good point that the proposal has come late in the day and does not have the support of the people leading the community involvement at the moment, one of whom she cited and whom I have known for many years. I do not think that the Government have yet given a full explanation of why the new proposals are better than the old ones. I understand why they have suggested that there should not be a one-size-fits-all approach, but I hope that in his winding-up speech the Minister will explain, because I think that Ministers have a case to answer.

Andrew George: My right hon. Friend will have heard me intervene on my hon. Friend the Minister of State on that issue, seeking the rationale behind the decision to remove the statutory basis for HealthWatch. As I understand it, his response was that there would be a statutory measure to achieve this—healthwatch organisations would be tied in with local authorities. Does my right hon. Friend agree that there is a potential weakness there? If we are seeking to integrate health and social care, a conflict of interest may arise if a body is tied in with the local authority but is also supposed to be scrutinising the activities of that authority.

Simon Hughes: I understand that point and share some of those concerns. I hope that the Minister will explain before the end of the debate why the more

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variegated model will not carry the risks that were alluded to by the hon. Lady when she read from the document earlier and by my hon. Friend.

I want to flag up two other things in relation to accountability, one of which is to do with the decisions made by the commissioning groups. Like many colleagues, I met a group of my local doctors again the other day. They had two areas of concern. First, they had concerns about the Bill. There is a lot of work to be done by Ministers and by all of us to allay concerns about the Bill when it becomes an Act—that is, on the basis of the facts, not the fiction. There is a huge amount of work to do. I do not think that we should underestimate that. Secondly, they have concerns about the system as it is now, before any measures have become law. I hope that Ministers have heard those concerns, some of which are not of this Government’s making but derive from previous legislation.

There is a concern that there is an excessive interest in some places in looking for private work and private contracts. There is a concern that the middle class and well heeled will speak more loudly and influence the commissioners in their interests, rather than in the interests of the poor and the vulnerable. That is a real issue in a constituency such as mine, where a lot of people are on low incomes and in need of a good public health system.

I want to put on the record that, although I understand the argument about getting rid of tiers of management and giving GPs the power to commission, and that is a good thing, it will not be a good thing if the decisions end up being taken not by GPs and the commissioning groups and the people who are meant to be taking them, but by the people they appoint to do the work for them. They may be private sector companies or somebody else. We have to make sure that it is health service professionals who make the decisions, in an open, accountable and transparent way, not people they employ, who may have a big vested interest in capturing more work for their own commercial gain.

9 pm

Paul Burstow: Just to be absolutely clear, may I say that clinical commissioning groups cannot subcontract decision making about their commissioning functions—that is crucial to the effective delivery of this. On the issue of the local healthwatch organisations, the Bill makes it clear that local healthwatch has to exist in each locality, and that local authorities have to contract for it to exist and to provide the range of services that the Bill provides for it to undertake.

Simon Hughes: I absolutely understand both those points. I understand that commissioning groups cannot subcontract their decisions, but the point I am making to my hon. Friend and to other Ministers is that we have to ensure that the groups do not end up in the position where, although they retain the decision, they leave lots of the thinking about it to the people they employ to do the work. The decisions have to be made by the health professionals. In reply to the Labour amendment, the Minister rightly said that it is a safeguard that local authorities will have the decision on the local healthwatch. Where a local authority is concerned that it should remain in a particular format, it will be able to do so.

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In conclusion, I am clear, as I have said to Labour’s Front-Bench team, to constituents and to my friends on the ministerial team, that our constituents still have a huge amount of concern about this Bill; I am clear that a lot of it has arisen because of misinformation and misrepresentation; and I am clear that this is not a privatisation Bill and not a “carve up the NHS” Bill. However, everyone, including Government Members, will need to continue to be vigilant and to continue to talk to the health professionals. I hope that the Government and the health professionals will start talking again very soon. We will also all need to make sure that we understand their concerns and pass them on. I know what my constituents want at the end of this debate; they do not actually want lots of conversations about structures of the health service.

Andy Burnham: I listened to what the right hon. Gentleman said about misrepresentation and I wonder who he had in mind. Did he have in mind the members of his own party who went to Gateshead and asked for the Lords not to support the Third Reading of the Bill, although they did so yesterday? Did he have in mind those people who raised the most serious concerns about this Bill? I am talking about his own party members, who overturned his party’s leadership. I will not sit here and have him suggest that the concerns exist only among those on this Front Bench, because that is not the case; they exist throughout the country, and he needs to acknowledge that.

Simon Hughes: Let me deal with both those points. I acknowledge that absolutely. On past occasions, the right hon. Gentleman has been to our party conference, although I do not think he came to the Gateshead conference. [Interruption.] It appears that one of his colleagues did. There were and are concerns in my party about this. My party wrote the plan for the NHS, which the good Labour post-war Government implemented, so of course we think we are as much the proprietors of the NHS as his party and of course there are concerns. There are many concerns—many colleagues are not happy with the Bill—and I am owning up to that.

I am absolutely clear about that, but do not let the right hon. Gentleman misrepresent what happened at Gateshead. My party is a democratic party. It is more democratic than his, thank God, and much more democratic than the Tory party. Our party voted to commend the Lords for the work they had done, but to suspend judgment on the Bill. My party neither voted to say that the Bill should not go ahead, nor to decide that the Bill should go ahead. That was what the debate, in the end, was about. There was not quite a majority saying, “Stop the Bill”; that was not the view of the conference, although there are many people in our party, as there are in his—this view is also shared by some in the Tory party and elsewhere—who would want the Bill to be stopped.

The Bill is not going to be stopped; it will become law. The Bill contains many good things. My concern now is to reflect what constituents, both health professionals and those who are not health professionals, come to talk to me about. They feel that there is a need to get back to concentrating on the things that really matter, such as making sure the wards are clean; making sure that the staff are of the highest quality; making sure

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that the waiting times go down; making sure that we can get decent care for the mentally ill; and making sure that our NHS is able to do better on all that it does. That is what the concerns are.

I want to make sure that Ministers understand that once the Bill is on the statute book there should be no cause for rejoicing, because this is not a matter for rejoicing. It is a matter of a challenge for Government to go back in humility to the health professionals and say, “We may not have got it all right—we may have got some of it wrong—but we are willing to listen, to learn and to work with you.” In the end it is collaboration between local authorities, local councillors, local people, Ministers, parliamentarians and those millions of fantastic people who work in the national health service who will make sure that the health service survives. It will survive and prosper in this country as a public health service—thank God—and we must all work together to respond to concerns, alleviate fears and not fan the flames. We must make sure that from now on we work on the basis of facts, not fiction, and that we work with those who have the concern, like we do, that the NHS should survive and prosper.

John Healey: I had not intended to speak in this part of the debate but I was so underwhelmed and unimpressed by the Minister that I felt moved to do so. It is interesting to follow the right hon. Member for Bermondsey and Old Southwark (Simon Hughes). I think he was offering his support to the Front-Bench team, but often it was not entirely possible to be certain. One thing he talked about was quite telling—the flaws in the systems we as a Government tried to put in place after we did away with community health councils. The Secretary of State and his colleagues were very critical about those arrangements when they sat on the Opposition Benches. One might have hoped that they would make their criticisms and learn the lessons and not repeat some of the mistakes that we certainly made in the arrangements for a strong patient voice and strong patient representation after the community health councils, but this evening’s debate and what we have been presented with in this final stage of the Bill make it quite clear that that is not the case.

At the heart of the proposal in the White Paper, which was co-signed by the Prime Minister and the Deputy Prime Minister in July 2010, was the proposition to put patients at the very heart of the NHS. That was common ground and was supported by many. It was a promise that really went to the heart of the proposition about the NHS changes. Despite that promise, it is clear that patients are not at the heart of the NHS but at the margins. The slogan for patients that there will be no decision about me without me is simply that—a slogan. I remember that early in the autumn of 2010 patient groups who were trying to come to terms with the plans were saying—quietly at first but more loudly later—that the arrangements in the White Paper and then in the Bill when it was first introduced in the House would lead to less involvement of patients in future, not more. Since that point, the Bill has had more than 1,000 amendments—some 374 amendments were made in the other place and we have four hours to consider those amendments tonight—but looking at the Bill now I can

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see very little difference from the position as it was first expressed almost 18 months ago, when it first caused concern to those patient groups.

In this area of all areas in which party politics should not be part of provision for a strong patient voice, representation and safeguarding, I want to take the Government at their word. They said that they wanted to set up at the heart of the NHS a strong independent voice for patients. The House needs to consider what that means, and to do that we need to go back to first principles.

It seems to me that there are four principles or characteristics which must serve as yardsticks by which to measure whether an organisation can be a strong, effective voice for patients. The first is independence. In order to function as a strong, fearless voice for patients, any organisation that acts on their behalf must be independent of commissioners, independent of providers and independent of regulators because part of its job on behalf of patients may well be to stand up to and criticise the providers, the commissioners or the regulators at some point in fulfilling its duties. The arrangements that the House is asked to approve tonight fail that first basic test of an effective organisation for patients.

The second principle or yardstick is representation. If the organisation is to be an effective representative voice for patients, clearly it must have some representation system and accountability to the people on whose behalf it acts and speaks. Again, on that test, the arrangements that we are asked to approve tonight fail. The third principle or test of an effective patient organisation is whether it is rooted or grounded in good local information and monitoring. Again, nothing in the arrangements and nothing I heard from the Minister, who has now left the Chamber in the middle of the debate that he opened, gave me any reassurance that that third principle or test is met in the arrangements.

The fourth test or principle for an effective, independent organisation surely must be adequate resources. There are serious questions over the nature, the level and the system for the resources that will allow such an organisation to do the job that we in the House are legislating for it to do on behalf of patients.

At a national level first, I say to the Secretary of State as his junior Minister is not present that setting up HealthWatch England as a sub-committee of the Care Quality Commission just does not cut it. It is implausible that a body can act impartially and fearlessly on behalf of patients if it is a sub-committee of the care regulator. How can it be, and equally important, how can it appear to be independent and authoritative, if it is set up within the administrative, organisational and financial embrace of the CQC? The CQC itself is clearly one of those organisations that HealthWatch England and local healthwatch bodies may need to stand up to and criticise.

There was an amendment in the other place to give the Government an opportunity to change their mind and set up HealthWatch England as an independent statutory body. That Labour-led, Labour-moved amendment was defeated in the other place, I am sad to say, by a combination of Conservative and Liberal Democrat peers.

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Secondly, on the local healthwatch organisations, I think I understood what the Minister said earlier—that the Bill introduces a statutory duty on local authorities to set up a local healthwatch organisation. Placing a statutory duty on a local authority to carry out a particular activity is very different from creating a statutory basis for that organisation to operate in its own right. How will that arrangement at local level ensure independence, representativeness, good local links and resources—the four things that I would argue are the essential elements of an effective organisation on behalf of patients? On the fourth point, which is about resources, I may have missed something in today’s debate or in the debate at the other end of the building, but we still have not had clear answers to the following questions. I would be grateful if the Minister answered these questions when he deigns to return to the Chamber to respond to the debate, unless the Secretary of State will be doing that himself.

First, will local healthwatch organisations be funded directly by the Department of Health? Secondly, if funding will go via local authorities, what will the mechanism be for that funding? Thirdly, will funding for local healthwatch organisations be consistent across local areas so that patients, wherever they live, can be confident that they have a strong local representative organisation working on their behalf? Otherwise, this is legislation for a local lottery in patient representation and the strength of local patient voices.

Chi Onwurah (Newcastle upon Tyne Central) (Lab): I congratulate my right hon. Friend on the many excellent points he is making. Is it his understanding, as it is mine, that all the local healthwatch activities could be carried out by private sector—and therefore, for-profit—bodies? Does he feel that providing the strong, independent, representative voice for local people should be a profitable activity for private sector organisations?

John Healey: My answer to my hon. Friend’s second question is no, and I do not know the answer to her first question, which should really be directed to the Minister. We need an explanation of how the system for setting up, or in effect franchising, local patient organisations will be carried out, what sort of framework that will take place in, and what standards, if any, will be required for the way they are set up and run.

Fiona O’Donnell (East Lothian) (Lab): Does my right hon. Friend not find it incredible that after a pause, two Bill Committees and all the debates in this place and the other place, we still do not have answers on a matter that is so important to patients?