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Tuesday, 6 March 2012.
2.30 pm
Prayers-read by the Lord Bishop of Exeter.
Railways: Great Western Franchise
Question
2.36 pm
To ask Her Majesty's Government whether the new Great Western rail franchise specification for trains between Bath, Bristol, Newport and Cardiff, and intermediate stations, will take into account recent increases in population and demand.
Earl Attlee: My Lords, recent increases in population and demand will indeed be taken into account. In drawing up the objectives for the new Great Western franchise, emphasis has been placed on the need to provide appropriate capacity for passengers, within the constraints of affordability and available infrastructure. We are looking closely at recent growth trends and forecast demand as part of the specification process.
Lord Berkeley: I am grateful to the Minister for that Answer. Presumably he will have read-because I sent it to him-a report of the West of England Partnership's Joint Transport Executive Committee, which the committee will in fact discuss tomorrow, proposing a greater Bristol-area metro network with much more frequent regional trains and some extra new stations. Will he ensure that that kind of specification is included in the tender specification for the new franchise?
Earl Attlee: My Lords, the noble Lord raises an extremely important point. The Government's objective is to strike an equitable balance of stakeholder interests: the fare payer, the taxpayer, the long-distance business traveller and the commuter. These stakeholders are obviously in conflict. Because of this, we urge our friends in the west and south-west of England to reach a consensus on their priorities so that we can use our resources to progress them to best effect.
Lord Bradshaw: My Lords, the last Great Western franchise was almost a disaster from the day it was let. It has had to be rescued both with more rolling stock and more money. Will the Minister give an undertaking that, whichever bids are received for the new franchise, they are robust bids and, as it will be a 15-year franchise, that they will include quite a contribution of new ideas, new rolling stock and new infrastructure?
Earl Attlee: My Lords, my noble friend makes important points. Although value for money is high up on the agenda, given the challenges set by the McNulty review, the exact evaluation criteria are yet
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The Lord Bishop of Exeter: My Lords, the Great Western franchise is one of the most complex in the country, with a clear demarcation between the London-Swansea access and the London-Penzance access. It is vital that fair balance is maintained in the specification to reflect the needs of the whole community. However, in the West Country, there are very real concerns about whether that will be the case. In particular, there is a high degree of uncertainty about the integrity of the franchise specification. Can the Minister offer a clear statement for the Department for Transport about whether the specification will be a guidance document only for bidders or whether it will be regarded as the default position? Does he recognise that the danger is that bidders will front-load the premium payment for the franchise at the expense of essential elements within the specification and that the south-west peninsula could be the loser?
Earl Attlee: My Lords, the right reverend Prelate asked several extremely complicated questions, and I think it would be better if I wrote to him. However, I have confidence in the whole franchising process. We are determined to strike the right balance between the needs of all stakeholders. As I said in my response to the Question asked by the noble Lord, Lord Berkeley, there is a conflict between stakeholders that needs to be resolved.
Lord Brooke of Alverthorpe: My Lords, I will keep my question brief and simple. Will the Minister confirm that the present rolling stock on the line is quite inadequate, and that it would be totally unreasonable to expect it to continue to be used until electrification in 2018? In the circumstances, and with reference to his first Answer, will he confirm to the people in that part of the country who use the line that the franchise will invite new rolling stock?
Earl Attlee: My Lords, first, we need to be careful about being too specific about which rolling stock should be used. To do so would compromise the negotiations between the train operating company and the rolling stock company. However, a new fleet of IEP trains is expected to be provided for the franchise for InterCity services. This project was initiated by the previous Administration. The new operator is expected to take responsibility for the provision of other rolling stock on the franchise.
Lord Cormack: If the Government attach such importance to value for money, why are they persisting with HS2?
Earl Attlee: My Lords, HS2 is somewhat wide of the Question on the Order Paper.
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Baroness Corston: My Lords, in his Answer to my noble friend Lord Berkeley, the Minister referred to conflicts in the greater Bristol and south-west England area. Will he confirm whether the department is looking kindly on the proposal for the greater Bristol metro?
Earl Attlee: My Lords, the document that the noble Lord, Lord Berkeley, referred to covers the Bristol metro. It would be very helpful to have a response from local stakeholders on how they want the balance to be struck between the needs of the metro system and those of longer-distance travellers.
Baroness Randerson: Will the Minister give us an assurance that the franchise will be let in a manner that is compatible with the establishment of a south Wales valleys metro-a project on which there is a considerable degree of consensus and unanimity in the area?
Earl Attlee: My Lords, I am sure that officials take all relevant considerations into account, but I cannot comment on my noble friend's particular point.
Lord Davies of Oldham: My Lords, no doubt rail passengers will look with some hope-which we expect to be fulfilled-for the improvement of a service that has been the subject of considerable criticism and dismay among passengers right along the line. Will the Minister confirm that the terms of the franchise will allow fares to be increased by 8 per cent in 2013-14, and possibly thereafter?
Earl Attlee: My Lords, I am not aware of the noble Lord's particular point, but we cannot operate a railway system for free; it has to be paid for, and paid for by fares.
Lord West of Spithead: My Lords, on this Cornish patron saint's day, will the Minister support the continuance of the overnight sleeper service to Cornwall?
Earl Attlee: My Lords, unfortunately I omitted to ask about the overnight sleeper service to Cornwall. However, some of my ministerial colleagues have great affection for that service.
Universities: Anti-Semitism
Question
2.44 pm
To ask Her Majesty's Government whether they will clarify the laws applying to universities and student unions when an anti-Semitic incident has taken place on campus.
Baroness Verma: My Lords, the law is clear: there is absolutely no place in our universities for racism, including anti-Semitism. As independent bodies, universities and student unions are responsible for undertaking their own legal obligations. They have the tools to tackle anti-Semitism. They have access to a
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Baroness Deech: I thank the Minister for her Answer. However, I wonder if she is aware of just how often these anti-Semitic incidents occur, reported or not. Sometimes it is other students' Nazi-themed activities, coupled with assaults, and sometimes it is hate speakers who are invited on to campuses which indeed they target. Recent events include speakers who blame 9/11 on Israel or who equate all Jews with Nazis, and worse. Universities tend to take refuge behind the doctrine of freedom of speech and do very little. They do not seem to realise the limits of freedom of speech as constrained by recent legislation largely from the previous Labour Government. The Public Order Act-
Baroness Deech: Will the Minister ensure that universities bring up to date their codes of practice on visiting speakers to take account of legislation and make sure that they apply to student unions as well?
Baroness Verma: My Lords, the Education (No. 2) Act 1986 requires university governing bodies to ensure as far as possible and practicable that freedom of speech within the law is secured for members, students, employees and visiting speakers. Institutions have to issue and keep updated a code of practice on the organisation of meetings and other activities taking place on their premises. These codes often include the right to refuse permission for an event. However, universities have to balance freedom of speech with their legal obligations, for instance in the Equality Act 2010. Only institutions themselves can make decisions about speakers. No other body could make judgments about each and every case. They are subject to the courts in this, as with other laws. The 1986 Act does not apply directly to student unions but indirectly through the universities' codes of practice.
Lord Boswell of Aynho: My Lords-
Lord Campbell-Savours: My Lords-
Lord Janner of Braunstone: My Lords-
Lord Palmer of Childs Hill: My Lords-
The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, we really cannot all stand up at the same time. I think that it is the turn of the Labour Party, and I rather wish that one of the two noble Lords would give way to the other.
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Lord Janner of Braunstone: My Lords, the Minister will be aware that last year on United Kingdom campuses there were 27 reports of anti-Semitic incidents and attacks on students and academics. Does she agree that the time must now have come for the Government to create and require a national approach for all universities to deal with anti-Semitic and all other racist attacks?
Baroness Verma: My Lords, I can only repeat that the Government cannot tell universities and higher education institutions who they can or cannot invite. However, universities have to follow very strict codes of practice. We are always working with universities, and wherever there are incidents and we hear of them we try to ensure that universities have the tools in place to counter those sorts of vicious speakers and their contributions.
Lord Boswell of Aynho:My Lords, given that the Minister has already confirmed that because universities and colleges are in receipt of very substantial amounts of public funds, they are bound by the public sector equality duty-which is an important factor that they should bear in mind and take seriously-will she also, on the positive side, celebrate the work of the Equality Challenge Unit and of others who are working positively towards ensuring that universities are, as they always should be, places of enlightenment, and not an opportunity for the expression of prejudice?
Baroness Verma: I absolutely agree with my noble friend. We see universities as places not only of learning but of great understanding. All the organisations that my noble friend mentioned are at the heart of those tasks of moving forward. However, we take the concerns very seriously and we understand why the noble Baroness has posed this Question and the noble Lord, Lord Janner, has raised it. We are working to ensure that all universities stand up for any students who feel under threat, regardless of their race, religion or background.
Lord Campbell-Savours: My Lords, is it not important that we draw a very clear distinction between the actions of anti-Semites and the actions of those who feel passionately about the actions of the state of Israel in the West Bank of the Jordan and in the Gaza Strip?
Baroness Verma: My Lords, I do not want to enter into another debate, and that is a separate debate although it is one that we must not shy away from. At the same time, we do not want to lose the greatness of our universities, which allow students to hear contributions that are often very vile but then also allow them to make a judgment as to their response.
Lord Palmer of Childs Hill: My Lords, my noble friend the Minister drew attention to the statistics up to 2010. Based on the October 2011 report from the National Jewish Student Survey, 21 per cent of Jewish students felt very worried about anti-Semitism at university; 38 per cent of Jewish students felt worried about anti-Israel sentiment at university; and, more
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Baroness Verma: My Lords, I am sure that my colleagues in the Box have taken note of my noble friend's concerns and the figures that he has raised today. The Government take all these issues very seriously and I reassure the House that wherever we find that we can intervene, we surely do.
Universities: European Languages
Question
2.52 pm
To ask Her Majesty's Government what is their response to the 2012 university applications figures from the Universities and Colleges Admissions Service (UCAS) showing that applications for courses in European languages are down by 11.2 per cent and non-European languages by 21.5 per cent compared to the previous year.
Baroness Verma: My Lords, 2011 was a record year in the overall number of people applying for higher education places. However, we cannot make a direct comparison as a reduction this year could be considered inevitable, with applications for language courses coming from a reducing population of 18 year-olds. We estimate that there will still be many more applications for higher education language courses than places available. The previous Government marginalised languages in schools. This Government are stimulating language study, and an increasing number of young people are now studying languages.
Baroness Coussins: My Lords, does the Minister accept that one very likely reason for the decline in numbers is the additional cost of a four-year degree that includes a year abroad, especially if that year is outside Europe and therefore does not qualify for any help under the ERASMUS scheme? What are the Government going to do to reduce financial disincentives for people considering a four-year degree course, particularly when employers are saying how much they value the language and other skills that are acquired during the year abroad?
Baroness Verma: My Lords, the noble Baroness has greater expertise in this area than I do, but I reassure her that the ERASMUS fee waiver programme will continue until 2014 and Ministers are considering the report by Professor Riordan on how we are going to fund after 2014. However, students will continue to
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Lord Anderson of Swansea: My Lords, the Minister will be aware that last year, of the 306 graduate entrants into European Union institutions, only seven were from the UK. Does she agree that this must be due in part to the decline in language teaching? Does she further agree that it cannot be in our national interest that there is such a decline and that the future influence of this country in European Union institutions is likely to decline as a result of this?
Baroness Verma: That is why the Government have prioritised language courses at university and in schools. The noble Lord will be aware that we have placed this, with HEFCE funding, under the vulnerable subjects in order that it will get the full grant. My right honourable friend Michael Gove has taken the issue very seriously. He has made sure that language teaching is part of the English baccalaureate and that young children are exposed to the joy of learning a language. As those of us with business backgrounds know, the importance of trading globally will be on the basis that we have the experience and knowledge of languages.
The Lord Bishop of Chichester: My Lords, can the Minister confirm that Her Majesty's Government are concerned about the cultural as well as the economic disadvantage our country is likely to suffer as a result of the decline in language skills? As the UCAS statistics indicate a disproportionate fall in the number of applicants from people from deprived areas, what are Her Majesty's Government doing or going to do in order to minimise the impact of tuition fees and a fear of considerable debt, specifically on children from those areas?
Baroness Verma: My Lords, the right reverend Prelate is absolutely right in introducing the value of a cultural understanding through language learning. The Government agree with that. As he will know, we have also made sure that, through our own reforms of the fee system, more people from disadvantaged backgrounds will be able to come into higher education simply because they will not be expected to put any moneys in fees up front. We are very much focused on widening participation. I for one am very keen to see children from poorer backgrounds and BME communities take that step forward into higher education.
Baroness Brinton: My Lords, do the Government still support the principle of prioritising strategic, important and vulnerable subjects such as STEM and modern languages? What highly specific advice will be given to schools and universities to prioritise modern languages, given their importance in our economy today?
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Baroness Verma: My noble friend is absolutely right. She will be reassured to know that we have put £14 million on one side to ensure that the vulnerable subjects, such as science, technology, engineering and languages, get fully funded support. We recognise that if we are to be a good globally viable trading nation we will have to have all these skills plus more to be able to do that. Today, Brazil is a prime example of an economy that has gone forward. We must learn from the lessons around us so that we do not lag behind.
Lord Quirk: My Lords, can the Minister explain why it is that in the bulk of schools the popularity and take-up of foreign languages is very bad but that in private schools and grammar schools it remains relatively buoyant? Is there a lesson here in some way for the Government?
Baroness Verma: My Lords, the only lesson I should like to reassure the noble Lord on is that my right honourable friend recognises that language learning in primary schools across our country has declined over the years and that we need to make sure that every child has the access and opportunity to learn a language that gives them the benefit and the advantage of being able to function economically, culturally and happily in the world around them.
Gypsies and Travellers
Question
2.59 pm
To ask Her Majesty's Government what is their response to the communication from the Commissioner for Human Rights of the Council of Europe on the adequacy of the provision of accommodation for Gypsies and Travellers in the United Kingdom.
Earl Attlee: My Lords, my right honourable friend the Secretary of State for Communities and Local Government replied to the letter from the Commissioner for Human Rights of the Council of Europe on 27 February. A copy was placed on the Council of Europe's website on 1 March. The Secretary of State's letter gave details of the measures the Government are taking to improve the situation of Travellers, particularly in relation to the provision of sites.
Lord Avebury: My Lords, my noble friend may be aware that local authorities are intending to provide planning permission for less than half of the accommodation that was shown to be necessary in the comprehensive assessment of need conducted during the previous Parliament. First, what immediate action are the Government going to take to increase the number of sites in order to match their legal obligation as identified by the high commissioner to provide adequate housing for Gypsies and Travellers? Secondly, have any of the local authorities and social housing agencies to which the Government recently granted a total of £47 million to build new sites identified the land they intend to use for this purpose, let alone applied for planning permission on it?
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Earl Attlee: My Lords, my noble friend's question on whether local authorities have identified the land suitable for pitches is a matter for them. If I have any further information that I can give him, of course I will do so. In response to the most important question put by my noble friend, the new homes bonus will match fund the additional council tax raised for new homes, including Traveller pitches, for the next six years. Traveller pitches are usually rated as band A so at present local authorities will get a bonus of £959 per year for six years for each new pitch. Traveller pitches owned by local authorities and housing associations will attract an additional £350 per year enhanced bonus, like other affordable homes.
Baroness Whitaker: My Lords, one of the key points made by Dr Hammarberg in his letter to Mr Pickles was about the "significant hurdle" concerning the requirement that for planning permission, the applicant has to establish "Gypsy status" and demonstrate particular "working patterns". Will the Government now dissociate the granting of planning permission from these inappropriate and restrictive criteria?
Earl Attlee: My Lords, the Government will publish the national planning policy framework by the end of this month, and shortly we will announce our conclusions resulting from all the consultations we have held related to Travellers.
Lord Laming: My Lords, does the Minister agree that the Gypsy way of life is extremely hard and that the best hope for them and, indeed, for society as a whole is the provision of sufficient official pitches so that the children-the next generation-can receive a proper education and thereby have an alternative lifestyle available to them?
Earl Attlee: My Lords, I agree entirely with the noble Lord's point.
Lord Hamilton of Epsom: Does my noble friend not agree that there is a serious problem here in that as local authorities provide pitches for Gypsies and Travellers, the number of Gypsies and Travellers increases, so we are always behind the curve? Is there not a problem here if we go on providing pitches and the demand continues to increase?
Earl Attlee: My Lords, there are some who think that; it may be the case or it may not. Our duty is to meet the need and we are doing that by means of the new homes bonus and other incentives to deal with the problem identified by my noble friend.
The Lord Bishop of Exeter: My Lords, would it not be helpful for the Secretary of State to meet directly with representatives of the Gypsy and Traveller community to discuss with them the issues raised by the Commissioner, and together with them develop measures to deal with those problems? Further, can he say whether the Secretary of State does have such plans?
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Earl Attlee: My Lords, I would be very surprised if the appropriate Minister does not have discussions with the relevant organisations.
Lord Elystan-Morgan: My Lords, is the Minister aware that about a quarter of a century ago a very distinguished High Court judge, the late Mr Justice Peter Pain, when hearing an application from a local authority in south Wales for an injunction to clear Gypsies from a lay-by said, "I will not grant this injunction because an injunction is an equitable remedy. To claim an equitable remedy you must be equitable. I will only grant the injunction to those local authorities which can show that they have taken seriously their statutory obligations in relation to Gypsies".?
Earl Attlee: My Lords, the noble Lord makes an important and interesting point. It is much easier to have an unauthorised encampment removed if the local authority has already made appropriate provision.
Lord McKenzie of Luton: My Lords, as the Minister has acknowledged, there is a shortage of adequate permanent and transit sites for Gypsies and Travellers, but, at the same time, the Government are dismantling regional spatial strategies, one of the objectives of which was to set targets concerning the number of pitches that each local authority should provide. What evidence do the Government have which suggests that the replacement duty to co-operate will better encourage local authorities to meet their own and their neighbours' responsibilities?
Earl Attlee: My Lords, as I have said, we have not seen the full government policy because that will be announced shortly. The previous Government's model of top-down pitch targets under regional strategies has not delivered. Between 2000 and 2010, the number of caravans on unauthorised developments increased from 728 to 3,895.
Baroness Sharples: If they are Travellers, why do they not travel rather than getting settled in one spot?
Earl Attlee: My Lords, some Travellers are static, partly because there are not the opportunities around the country and their patterns of work are changing. It would be better in those circumstances if they remained static so that their children could be properly educated, as suggested by the noble Lord, Lord Laming.
Business of the House
Motion on Standing Orders
3.06 pm
That Standing Order 40(1) (Arrangement of the order paper) be dispensed with on Tuesday 13 March to enable proceedings on the Health and Social Care Bill to take place before Oral Questions.
6 Mar 2012 : Column 1669
Schools (Specification and Disposal of Articles) Regulations 2012
Alternative Provision Academies (Consequential Amendments to Acts) (England) Order 2012
Children Act 2004 Information Database (England) (Revocation) Regulations 2012
Pneumoconiosis etc. (Workers' Compensation) (Payment of Claims) (Amendment) Regulations 2012
Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2012
Occupational and Personal Pension Schemes (Automatic Enrolment) (Amendment) Regulations 2012
Automatic Enrolment (Offshore Employment) Order 2012
Motions to Refer to Grand Committee
Supply and Appropriation (Anticipation and Adjustments) Bill
Second Reading (and remaining stages)
3.07 pm
Bill read a second time. Committee negatived. Standing Order 46 having been dispensed with, the Bill was read a third time and passed.
Health and Social Care Bill
Report (5th Day)
6 Mar 2012 : Column 1670
3.08 pm
163AA:Before Clause 60, insert the following new Clause-
"PART 2AStandards of adult social careSecretary of State duty as to the standards of adult social care
(1) The Secretary of State shall have a duty to secure the improvement in the quality of adult social care services through local social services authorities and qualified service providers registered with the Care Quality Commission.
(2) In discharging this duty, the Secretary of State must ensure-
(a) the establishment of a fair and resilient partnership between individuals and the state for funding adult social care that-
(i) secures adequate funding to deliver safe and sustainable services,
(ii) provides access to these services for those of limited means,
(iii) caps the financial liability to pay for services for those with unusually high lifetime care costs,
(iv) minimises the impact on the demand for health services,
(b) that the assessment of the needs of individuals and their carers for services is undertaken on the basis of published criteria for eligibility to and charging for services that applies consistently throughout England,
(c) that continuing efforts are made to reduce barriers to the delivery of integrated health and adult social care to individuals and through the conduct of commissioners and providers of both health and social care services.
(3) The Secretary of State may, after appropriate consultations, make regulations governing the discharge of his duties under subsections (1) and (2), subject to affirmative resolutions in both Houses of Parliament."
Lord Warner: My Lords, we return to the issue of adult social care, which is a good occasion for seeing a massive emptying of the Chamber. In very simple terms, the amendment is an attempt to get the Bill to live up to its title and become a genuine health and social care Bill.
Subsection (1) of the proposed new clause would place a clear duty on the Secretary of State to secure improvement in the quality of adult social care through the offices of local government and qualified service providers. It would make the Health Secretary pay proper attention to adult social care in a similar way to the way in which he is under a duty to ensure a comprehensive health service under other provisions in the legislation.
Subsection (2) of the proposed new clause identifies the key elements that the Secretary of State must pay attention to in discharging the duty in subsection (1). These are: adequate funding for safe and sustainable services; access to services for those of limited means; a cap on the financial liability of those with high lifetime care costs; and minimising the impact on the demand for health services. It also introduces national eligibility criteria for services across England and standard charging policies. That was argued for overwhelmingly in the evidence to the Dilnot commission, of which
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What is to argue against in these provisions? Today, we see a lobby of Parliament by the Care and Support Alliance to secure action on delivering a more sustainable adult social care system instead of the underfunded and unsustainable system that we have now. This alliance is overwhelmingly in favour of implementing the framework in the Dilnot commission report in order to deliver a resilient and sustainable financial framework for adult social care. There is legitimate room for debate on the precise details of that framework, especially the level of the cap proposed by Dilnot. I for one would accept that we should start with a higher cap than the commission's preferred option of £35,000, but there is nothing in this amendment that limits the Government's freedom of manoeuvre on these details or on the speed of implementation. Nor does it frustrate the achievement of cross-party agreement in the cross-party talks now taking place. However, I see little evidence of those talks progressing very fast, with an isolated and politically wounded Health Secretary lacking any Whitehall-wide support, especially from the Chancellor, for doing a deal with the Opposition.
The amendment would get the Government out of a jam. They can implement Dilnot and anything else that they want to propose in their forthcoming White Paper without a new Bill next Session. Subsection (3) of the amendment would give broad powers to use affirmative regulations after appropriate consultation. I can see that after the failure of the Government to provide a convincing political narrative on this current Bill, the Prime Minister might not want to launch another Bill from Richmond House in the next Session. Therefore, ever sensitive to these political considerations, I offer him an exit strategy without neglecting the serious needs of adult social care and the people who need those services.
We all agree that the funding of adult social care is in a parlous state; there is broad stakeholder support for the Dilnot-proposed framework. We all recognise the dependence of the NHS on a robust adult social care system, without which the NHS will surely fail to deliver the efficiency gains required of it. We all want to see improved integration of health and social care, although the Government's opposition to my amendment on integration last week was disappointing, especially the conduct of 17 Liberal Democrats who voted against it. However, I say to Lib Dem colleagues that today is your chance to make amends. If you want to go to your spring conference trumpeting your success in saving the NHS, you will support the amendment. You had the courage to insert in the coalition agreement the establishment of an independent commission. I pay great tribute to you for doing that. Now have the courage to put into this Health and Social Care Bill the means to implement the adult social care changes that are so badly needed.
I have low expectations of the Minister being willing to accept the amendment because I suspect that his hands are tied by those in a higher pay grade. However, if he is willing to take this amendment away and come
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3.15 pm
Baroness Pitkeathley: My Lords, I was delighted to add my name to this important amendment which builds on several amendments we have discussed in your Lordships' House with regard to the integration of health and social care. The central point of the amendment is to place a duty on the Secretary of State to secure improvement in the quality of social care services provided by local authorities. It goes on to set out the means of doing so.
These proposals are based on those of the Dilnot commission, of which my noble friend Lord Warner was such a distinguished member and about which there is such consensus among all those who work in or are in receipt of social care. If only the coalition Government had managed to achieve such a consensus about all the proposals in this Bill, we would have saved a lot of time and be a lot more content. There is consensus around the proposals and everybody understands what the social care system is in need of. As we have heard from my noble friend, the system is starved of cash, failing to meet the volume of need, unfair-a lottery-and confusing and difficult to find your way around, especially if you are frail, elderly and confused.
The existing consensus is that the future funding of social care has to be based on a combination of individual and state responsibility and contribution, and that we must achieve a lasting settlement. We have mentioned many times before in your Lordships' House that the Health and Social Care Bill fails to address the most pressing of all health problems: how to deliver affordable and effective social care for our growing elderly population-a view endorsed, I remind your Lordships, by the Health Select Committee in a recent report.
It is extremely worrying that rumours are circulating that the White Paper on social care, responding to both the Dilnot proposals and the Law Commission proposals about legislative reform in this area, is to be delayed. This would be a huge disappointment as well as a missed opportunity. Moreover, it would renege on the commitment given by the Minister for social care in another place when he said only four months ago that,
- "social care has languished and rested in the 'too-difficult-to-do' box for far too long. We are the Government who are committed; we see the urgency and the need".-[Official Report, Commons, 10/11/11; col. 181WH.]
I hope that the Minister will today repeat that commitment in response to this amendment.
We should remember, too, the advantages which would be delivered by accepting this approach. We would spend existing resources-which everybody agrees are short-better. It would improve integration of health and social care systems. When people's need for
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In addition, the rights and responsibilities of individuals and agencies would be clear to the public if the Government accepted this approach. If people were clear about their future personal liability, they could plan how they would meet care costs up to the level of the cap, wherever that were placed. We would also stimulate the care market to provide more choice for families and incentives for business. The Dilnot report and its proposals have been called a once-in-a-lifetime opportunity. We cannot and should not miss that opportunity. I support the amendment.
Lord Skelmersdale: My Lords, the House seems to have gone remarkably silent after those two introductory supporters of this particular amendment. As some of your Lordships will remember, when I returned from Northern Ireland as the ex-Minister responsible for health and social services, I came as a great fan of combined health and social services. Yet I discovered in my experience there that it would never, ever work unless you had one organisation in total and utter control. This may seem like a Second Reading speech, but it is not intended to be. The Secretary of State mentioned in the amendment means any Secretary of State, and currently we have two Secretaries of State. That is why the notable ambitions of this amendment-and they are notable-will always fail. Therefore, I encourage my noble friend, until a higher authority than himself, senior as he is, gives the imprimatur to take social services away from local government, to resist this amendment.
Baroness Murphy: My Lords, I think that the noble Lord, Lord Warner, is having us on. There is an urgent need to press the Government on bringing forward their White Paper on social care reform, which is the pressing economic and social care issue of our day-more important than this Bill. But we have to get it right. We are expecting a White Paper, and there are many arguments to be had about the recommendations from the Dilnot commission, although there is quite a consensus of opinion, and about the right and wrong and who will pay and when. I hope that we can have those debates in this House. But this issue requires a full Bill. This amendment gives a new Bill inside the Health and Social Care Bill on Report, and I do not really think that it will fly. I can imagine what the noble Lord, Lord Warner, would have done if it had been proposed when he was Health Minister. He would have given it very short shrift-and I urge the Government to do so again. We need a proper recommendation and discussion in the White Paper.
I also remind the House that last year the Law Commission came out with a report on adult care social services that said that we had had endless piecemeal
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Baroness Barker: The noble Lord, Lord Warner, asked what was to disagree with-what was not to like-and the answer is nothing at all. However, that is not to say that this amendment is not deficient and there are not an awful lot of questions that it begs.
The noble Lord is right that my party, along with others, has agreed with the Law Commission review and supported the efforts to see the Dilnot commission brought into law. However, he will know as well as I do that the history of social care law reform is littered with failed attempts to deal with one of the biggest issues that our society faces-the Royal Commission on long-term care. The Wanless report was largely about the NHS, but a significant chunk of it was about the need to reform social care to drive down future demands on the health service. Noble Lords have been critical of this Bill, and many of their criticisms are justified, but they overstate the extent to which the latter parts of the Bill, with the placing of public health into local government and the creation of health and well-being boards, attempt to deal with that agenda, decrease health inequalities and raise levels of preventive health promotion. I, too, think that this is an inadequate response, particularly to the Law Commission report, which was a good and detailed piece of work. It deserves extensive scrutiny and to be brought forward in law in a way that is far more comprehensive than this.
I will not have a go at the noble Lord, Lord Warner, for keeping the issue on the agenda, but I say to him that the Care Services Minister, Paul Burstow, has made it clear throughout his tenure that he is doing all in his power to keep social care to the fore. I come back to the £2 billion that was invested in social care at the beginning of the Government's term. The Government are mindful of the need to deal with this, not least because the noble Baroness, Lady Murphy, is right to say that, as she often reminds this House, no one has a social care need unless they have a healthcare need-the two things are indivisible-and if the Bill is about anything, it is about tackling the health needs of the population as a whole over time.
I do not disagree with the noble Lord, Lord Warner, but I do not think that this is quite the way to go forward. I hope that all Members of this House will continue to uphold the consensus that there has been over the past two years behind the work of the Law Commission and the Dilnot report to bring this issue forward in a way that means that it can be determined successfully once and for all.
Lord Campbell of Alloway: My Lords, I would like to raise the matter of the process of putting in statute what in the ordinary course of events should be put in
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Lord Beecham: My Lords, I congratulate my noble friend on bringing forward the amendment, to which there seem to be two limbs. The first involves finance and looks forward-indeed, arguably it paves the way-to the Dilnot report or some version of it being the basis for the complex issue of catering for the needs, present and future, of a significant proportion of the population.
The second limb is directed more towards the services that will be required, which we would all agree need to be better co-ordinated than they have been. In that respect, I have a certain sense of déjà vu. At the time of the 1973 reorganisation, I was chairman of my city council's social services committee when various services that were directed to run adult social care were transferred to the health service-chiropody, bath attendant services and the like. At that time, the area health authority, as it then was, found itself in difficulties and unable to fund the continuation of the service, so my authority contributed significantly financially to preserve the very services that we had handed over. That illustrated clearly the need for a much better relationship between the two sides that, a generation later, has still to be achieved. My noble friend's amendment would certainly direct us further along the road to integration.
The noble Lord, Lord Skelmersdale, refers to the impossibility of progress being achieved without a single body organising it. I do not think that that is right. In fairness to the Bill and the Government, the creation of the health and well-being boards, with the obligation to produce a joint strategic needs assessment and to collaborate in implementing the measures required to deal with those needs, provides a more coherent framework for that necessary degree of collaboration.
3.30 pm
Nor is the noble Baroness, Lady Murphy, correct in saying that my noble friend's amendment constitutes a new Bill. It constitutes at least a partial completion of the Bill, filling a lacuna in adult and social care, which is part of the Title of the Bill but thereafter becomes virtually invisible. In effect, his amendment paves the way for further reforms.
If I have any reservation about my noble friend's amendment, it is one that perhaps applies to the Bill as a whole. We have talked repeatedly about adult social care as we have gone through the Bill, but there is very little about the social care of children in it. Perhaps that is something to which we ought to have devoted a little more time. There have been occasional references, and there are some amendments, but we will have to return to the subject if not during what little time remains for this Bill then in the not too distant future. Having said that, my noble friend's amendment advances the argument and lays out a structure that could be most useful in ensuring a degree of collaboration,
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Lord Patel: My Lords, I do not know whether the Bill is adequate for its intention. I did not think for one minute that the noble Lord, Lord Warner, was trying to insert a Bill into a Bill; he is trying merely to highlight the need for some commitment to social care in a Bill that has "health and social care" in its Title but not much about social care in it. Successive Governments have talked about integrated health and social care but have failed to achieve it. For the first time, we have a Bill with the Title "Health and Social Care", but with no mention at all of social care. To indicate some commitment to its delivery, if not now then at a later stage, would have been adequate. Delivering integrated health and social care should have the same commitment to it as delivering improved waiting times for acute care.
We tried to get commissioning as a way of integrating health and social care. It would have been a better way forward, but unfortunately that amendment was narrowly defeated. This amendment asks only that the Government commit to making continuous efforts to reduce barriers to integrated health and social care. I do not think that it is inadequate or that it inserts a new Bill into the Bill.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, this has been a thoughtful debate. At the outset, it is appropriate for me to pay tribute to the noble Lord, Lord Warner, for his strong advocacy of the need to improve the quality and funding of social care services. The noble Lord played a critical role as part of the Dilnot commission and has made strong speeches both today and in Committee on this subject.
I am in complete agreement that high-quality social care services are crucial for the health and well-being of the population. As the Government and many others have said, major reform in adult social care is long overdue. We recognise the need for lasting reform to respond to the challenges facing social care. The recent engagement exercise, Caring for our Future: Shared Ambitions for Care and Support, conducted from September to December last year, highlighted again the scale of the challenges. We know that the quality of care is variable and can sometimes be poor, as recent high-profile failures have demonstrated. The current social care system does not support people to plan for their future care needs or maintain their well-being and independence. People often have a poor understanding of what social care is and of how to navigate the system and access the services they need.
All this is compounded by the well documented twin issues of an ageing society and financial constraint. This critical context explains why the Government have set the reform of adult social care as one their key priorities, but it also explains why social care reform merits it own focus and cannot be dealt with around the edges of discussions on another important topic. The Government are convinced that the time has
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I have given Amendment 163AA a good deal of consideration, and I am afraid that I have to say to the noble Lord, Lord Warner, that I do not feel it is the appropriate mechanism to achieve what he seeks. This is because, as well as reform being needed for social care quality and funding, there is broad consensus that social care law too needs extensive reform. The noble Baroness, Lady Murphy, helpfully mentioned the Law Commission report on law reform, which put forward this argument last year. I wish to quote a short passage of the report, which states that,
- "adult social care law has been the subject of countless piecemeal reforms ... It is of little surprise that not only does the law perplex service users and social workers, but also the judiciary".
This is the problem with the noble Lord's amendment; to accept it would be to perpetuate exactly the same confusing and piecemeal approach against which the Law Commission argues. The legal framework for care and support needs fundamental reform, not further additions to an already opaque statute.
I wish to set out briefly what I see as the appropriate course of action on social care reform. We will publish a White Paper on care and support in spring this year. I repeat that undertaking, particularly to the noble Baroness, Lady Pitkeathley. We will follow this by bringing forward legislation at the earliest opportunity. The White Paper will draw on multiple sources, including the excellent work of the Law Commission and the Commission on Funding of Care and Support, for which I again express my gratitude to the noble Lord, Lord Warner. The White Paper will respond formally to the reports of both those commissions and, of course, to the Health Select Committee report on social care.
The noble Lord has proposed that a duty be placed on the Secretary of State to secure continuous improvement in the quality of social care. The Government's proposals for embedding and safeguarding quality throughout social care will be a central theme for the White Paper. We sought views on this as part of the engagement; it highlighted that progress on quality has already been made with the publication of Transparency inOutcomes last year, which set out the Government's approach on quality, transparency and outcomes in social care. Our approach to quality improvement is aimed at responding to poor quality, enabling improvement and rewarding best-quality services to support choice.
The ideal for social care is a sector filled with great people doing great jobs who deliver high-quality care to people using social care services. As I said, we are committed to publishing the White Paper this spring and preparations are on course. The Government are taking the broadest possible approach to achieving consensus on the most crucial long-term issues. Therefore, in that context, I do not believe that the time is right for an amendment of this sort. It would pre-empt the White Paper and could leave stakeholders unclear on the broader picture of social care reform.
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Moreover-I see this as the central point-we do not want to make further changes to the existing statute when more lasting legal reform is already planned in the near future. Social care is a vital public service and deserves its own focus in its own statute. Too often, debates on social care have taken place on the margins of those on another issue.
Earl Howe: I will give way but we are on Report.
Baroness Meacher: I apologise for intervening but I wonder whether it might be relevant to change the Title of the Bill to the Health Bill, bearing in mind the noble Earl's very valid comments that there will be a White Paper and a totally separate Bill. The Bill's Title is a misnomer.
Earl Howe: The noble Baroness may not have been following all our debates as closely as some, given that we have extensively debated integrating health and social care and how the Bill will improve the prospects of that. I therefore do not agree that social care is such a poor relation in the Bill. She is quite right; of course its prime focus is health, but we have not completely neglected the subject that is so close to her heart.
Specific legislation on social care will be the most appropriate vehicle for debating these critical matters and achieving lasting reform. Of course I understand the desire of the noble Lord, Lord Warner, to keep social care at the top of the political agenda. That is greatly to his credit. I can assure him that the Government have not lost sight of this. We share the same aims for a high-quality service, but it would be wrong to legislate now in such a selective way. The noble Lord may suppose that this is just another instance of a Minister following the standard line that says "resist", but I hope he will accept that that is not so. There are genuine reasons why the amendment is a bad idea, and I hope that he will feel able to withdraw it.
Having said that, I look forward to debating these issues with him further in due course, and to benefiting from the insight that he and others bring to this topic.
Lord Warner: My Lords, this is an interesting debate. Let me say to the noble Baroness, Lady Murphy, that I am not having the House on. I am deadly serious about this because when the Dilnot commission was set up we were asked to do a job extremely rapidly, and we did so well within the 12 months we were set. We were asked to do that so that the Government could crack on with change, which is absolutely vital. This service-adult social care-is in a parlous state that will also do enormous damage to the NHS. Unless you do something quickly about adult social care, you will cause the most terrible financial crisis in the NHS. That is what the demography tells us. That is the reality for urgent admissions to acute hospitals and people staying there much longer than they need to.
If you are interested in improving and safeguarding the NHS, you should be interested in rapidly moving on with the reform of adult social care. The Government are already behind time on this reform. I do not blame
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I have listened very carefully. The amendment does not prevent the Government from bringing forward new legislation in the next Session. If they want to do that, I shall be deeply delighted and they will have my support. I see nothing in the amendment that prevents the Government from making a start on making changes and protects them to go further if they want to include such provision in the next legislative programme.
I think we should make sure that adult social care is properly represented and recognised in the Bill. Therefore, I wish to test the opinion of the House.
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Contents 203; Not-Contents 261.
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163BZZA:Before Clause 60, insert the following new Clause-
"CHAPTER A1Principles of regulations of health and adult social care servicesPrinciples of regulation of health and adult social care services
Any person undertaking any regulatory functions under this Part or any functions in relation to services provided under this Part shall exercise all such functions based on the principles of universality and social solidarity."
Baroness Thornton: My Lords, at last we come to the heart of the Health and Social Care Bill-Part 3. On 3 March, David Cameron was again telling his party about the need for greater competition and for the private sector to be encouraged. He has since
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Our fundamental disagreement with the two parties opposite is that we think that competition should be used only within a managed framework and when it adds value. There has to be freedom to use non-competitive means and to deliver co-operation, collaboration and integration. For a moment we thought that we had a new recruit to the argument, when the Secretary of State announced that he had lost faith in competition. He was all for it in his landmark 2005 speech to the NHS Confederation, and he was all for it when he and his coalition allies launched this Bill with price competition and an economic regulator to promote competition. Now, however, it is reported that he is not so sure.
We on these Benches have not changed our minds. We share the view expressed by the noble Baroness, Lady Williams, that Part 3 should be dropped-a view which is shared by almost all the professional bodies, as well as the staff in the NHS. Even the evangelical GP commissioners are very aware of competition, and we note that the drive to force through any qualified provider for the operating framework for 2011-12 has just been thwarted-a highly embarrassing defeat for government policy.
Making competition central to the reform of the NHS, as opposed to making it one component of a more rational and comprehensive reform with collaboration and co-operation at its heart, remains dangerous. Even with the amendments already agreed, Part 3 is a mess; and even at this late stage the Government should think again and try to build on the very wide consensus that accepts a role for competition only when it adds value for patients.
The three amendments in this group-and the late arrival of a manuscript amendment in the name of the noble Lord, Lord Clement-Jones, which I will return to in a moment-seek to address fears that have been widely expressed about the way that competition will intrude into the NHS in ways that we do not want, and that do not benefit patients. The fear is supported by the legal advice of many experts, who foresee how the Bill will open up opportunities for legal challenge in ways that are not currently acknowledged.
We also see that some clinical commissioning groups are asking awkward questions about how autonomous they will be, and how free to do the job that they are given. We know that they will have to obey the rules set out for them both by the NHS board and by Monitor, but is it worse than that? Will they have to employ legal and consultancy support on a grand scale to avoid being challenged by the courts or by whatever the co-operation and competition panel turns into? Will fear of challenge deter the innovation that the Bill claims will be unlocked?
Amendment 178A is the best effort of many legal minds collectively to solve the problem of ensuring, so far as is possible, that commissioners can do their job. When one looks at the old NHS, or even at Wales, one sees that there is a very high degree of confidence that arrangements made between different parts of the
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We know that health services can, as Part B services, get some protection from the full force of EU competition law. We believe that that protection will be chipped away over the years. Although procurement is simpler under Part B, it is still open to challenge if the basics around transparency are not met. If there is an intention to enter into a contract that is enforceable in law, you quite rightly have to go through the correct procedure. This is no different from what is set out in the current principles and rules, which, if you read them, make a lot of sense-as they should, because my Government wrote them.
The doubt and the opportunities for challenge will remain unless you construct in the legislation a framework to protect commissioners of the kind that we set out. Such an approach might not be perfect but it is the best that major brains can come up with. Since the coalition Government's stated intention is that commissioners should be free, we should be able to see either their version or their legal advice-but we have not. The purpose is not to give unfair preference to NHS providers, or, indeed, to prevent third sector providers; the purpose is to free commissioners to make decisions that would have to pass the test of reasonableness in any event. Neither the third sector nor private sector providers would be any worse off, because they would still have to go through procurement procedures under any circumstances if a service went out to tender.
We think that Amendment 163BZZA, at the head of this group, and the following amendment are the right place to recognise this important principle from the outset. Amendment 163D follows a line that our Liberal Democrat colleagues have also explored, which is to define our NHS in a way that makes it clear that it is not a market despite what the Bill states.
The principle of social solidarity is used in the courts to help differentiate national social policy from the EU internal market and competition law. Social solidarity is therefore not an invention of the Labour Party, it is a term used in EU law. Social solidarity means "provided for that purpose as a matter of social policy" and as such may be considered by the courts to restrict the application of EU internal market law. All this has the same objective-to limit the scope for EU law to be applied in ways that do not help.
The noble Lord, Lord Clement-Jones, has, as it were, come to the party somewhat late by tabling his manuscript amendment. My colleagues and I have been in discussion with him and his colleagues, including the noble Baroness, Lady Williams, for many months, and we have shared with them our thinking on this matter. Indeed only last week I wrote to the noble Baroness, the noble Lord and their colleagues about exactly what we thought we should do together on Part 3. In that letter, as point one, I said:
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I am very pleased that this burst of late enthusiasm from the noble Lord, Lord Clement-Jones, has led to his agreeing that we should combine our amendments, and I am absolutely delighted to say that I would want to accept his amendment as an amendment to our amendment. I hope that noble Lords will have time to work out what exactly is going on here as the discussion progresses. Essentially, however, the noble Lord, Lord Clement-Jones, wants to amend our manuscript amendment with his manuscript amendment-which I am sure he will explain. I apologise to the House that this has been done as a manuscript amendment, but I am happy to report that we seek the same end. When the time comes, I will be very happy to accept the noble Lord's amendment.
Our amendment does not oppose the use of competition, in its place, and will enhance the Bill. I also like its use of the term social solidarity, as that appropriately describes what our NHS is, and why and how it exists. I beg to move.
163BZZB:Line 6, after "functions" insert "in accordance with the provisions of Article 106 of the Treaty of the Functioning of the European Union as set out in section (Service of general economic interest),"
Lord Clement-Jones: My Lords, I beg to move Amendment 163BZZB. I am delighted at the response of the noble Baroness, Lady Thornton. Clearly she recognises good drafting when she sees it. I hope she accepts the arguments, in substance, as I put them forward in my speech.
In common with many other Members of this House on all Benches, I expressed a number of concerns about the risk of market competition becoming greatly more prevalent within the health service as a result of the current provisions of the Bill, despite some concessions offered and partly because the Bill failed to fully reflect the intentions of the Future Forum. Our fear was that the Bill contained a number of measures that could increase competition within the NHS at the expense of collaboration and integration.
We were explicit that we are not against competition in the NHS but it must be applied where it is appropriate to do so in the interests of patients. It is not appropriate in all circumstances. Patient and public benefit can often be secured in other ways; for example, integration of services and co-operation between providers, or a mixture of these with competition, are often preferable alternatives.
EU and UK competition law has had some application within the health service for some years now, largely as a result of Labour's reforms in the 2006 Act, and we should remember that. However, we do not want to see competition law applied universally across the health service so that our health service commissioners and providers are required to operate an entirely market-based NHS without being able to choose where the market and competition should apply and where they should not.
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The objective of the Bill and Ministers during its passage must be to put beyond doubt the protection of the NHS from competition as an end in itself where this does not serve the interests of patients. The tests summarised from OFT guidance for whether EU competition law applies to the provision of healthcare for the purposes of the NHS falls into three stages. First, is the provider an "undertaking"? This depends on whether it carries out an "economic activity". This status may fluctuate over time and apply to some activities and not others of the same provider. Offering or supplying goods or services in a given market is the characteristic feature of an economic activity.
Even if economic, is the activity wholly social in nature rather than commercial? Compulsory healthcare and insurance schemes have been held to be wholly social. The OFT emphasises that this depends on the facts of each case. Even if the provider is an undertaking and the economic activity is not wholly social, is this in relation to services of general economic interest? This is where both Amendment 177, which I am currently speaking to as well as Amendment 178, come in, in addition to Amendment 163BZZA.
SGEIs are protected from some aspects of competition law. Member states are free to designate services as SGEIs and the Commission will challenge such decisions only if it thinks that the member state is in error. In the view of these Benches, the risk of a number of elements of the Bill being taken together increases the likelihood of NHS services being found by English and EU courts to fall within the scope of UK and EU competition law. These include the fact that the Competition Commission is deployed in reviewing the development of competition in the NHS in the provision of healthcare, and the exercise by Monitor of its functions in relation to the provision of healthcare services.
Secondly, the potential deregulation of foundation trusts from 1 April 2016 under Clauses 111 to 114 means that Monitor will no longer from that date have the power to appoint and dismiss foundation trust directors unless the Secretary of State decides otherwise. On oversight of foundation trust mergers by the OFT, we were concerned that ordinary competition rules as a result of the application of Part 3 of the Enterprise Act by virtue of Clause 77 would be applied. Originally, the PPI cap for foundation hospitals was lifted under Clauses 163 and 164, opening the way for the majority of income for some foundation trusts to derive from private patients, which could have led to a loss of status as an organisation promoting social solidarity. This has now been restricted to a maximum of half the revenue of an FT, which helps to mitigate that risk. There are still issues surrounding transparency and authorisation by a foundation trust's council of governors or Monitor which remain to be resolved with later amendments.
4.15 pm
We are also concerned that even after the changes made following the Future Forum report, Monitor's powers were not properly balanced so that they could ensure integration as well as prevent anti-competitive behaviour. The Government have now tabled Amendment 193 to Monitor's powers under Clause 97 so that it can set and enforce licence conditions for the purposes of
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Under the EU treaties, Article 106 of the Treaty on the Functioning of the European Union states:
"Undertakings entrusted with the operation of services of general economic interest ... shall be subject to the rules contained in this Treaty, in particular to the rules on competition, insofar as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them".
Member states have certain discretion as to which services are services of general economic interest. By ensuring healthcare services for the purposes of the NHS are services of general economic interest and that the "task" of co-operation between services is "assigned" to the healthcare providers, it should be possible to provide some protection from less desirable aspects of competition law.
An EU summary of legislation on this issue states:
"Services of general economic interest (SGEIs) are different from ordinary services in that public authorities consider that they need to be provided even where the market is not sufficiently profitable for the supply of such services. The concept of services of general interest is based on the concern to ensure that a quality service is provided at an affordable price everywhere for everyone. Services of general interest contribute to achieving the objectives of solidarity and equality of treatment underlying the European model of society".
The objective must therefore be to ensure that providers for the purposes of the NHS that fall into the category of economic activity from time to time will have the necessary protection. By categorising health services as a whole as SGEIs, where services fall into the economic activity category the protections available against the application of competition law can be brought into play. Our amendments would designate healthcare provided for the purposes of the NHS as a service of general economic interest.
It must be right to clarify the treatment of health services when it is available and recognised explicitly in EU guidance. To benefit from the SGEI exclusion it will be necessary to show that performance of the tasks assigned to the undertakings entrusted with the operation of SGEI is being obstructed by the rules of competition. The best example to illustrate why it is important to recognise healthcare for the purposes of the NHS as a market that merits this status is obesity, which affects deprived communities disproportionately. A pure market approach would lead to providers, for instance, offering gastric band surgery, which would be more profitable than undertaking health campaigns to tackle prevention.
Co-operation between healthcare providers, however, may be the best way to achieve good patient outcomes. For example, PACE, the post-acute care and enablement programme, involves collaboration between providers proactively to seek out medically stable in-patients and to treat them at home with interventions which would normally require them to remain in hospital, such as intravenous wound care. This type of service involves integration and a co-operative culture to
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When a court approaches the question of whether an activity carried out by one of the new bodies under the proposed health regime falls within the scope of the competition regime, purchasing activity is characterised by the services for which the purchased products are used, and the court will then examine whether the offering of relevant services should be regarded as economic. However, the court will also have regard to the objectives that the relevant body is required to pursue; and the greater extent to which the domestic regime makes it clear that the activities should be carried out by reference to public policy objectives rather than in line with free market incentives, the less likely it is that the court will find the activity to be economic activity governed by the competition rules. So the way we have proposed to do this both in our amendment and in Amendment 178 is to expand upon existing duties on co-operation within the NHS in the 2006 Act and make use of the licensing regime which Monitor will operate under the Bill to impose co-operation for the purposes of integration of services.
Other approaches may of course be valid-for instance, under the general competition rules in Article 101 of the TFEU and in the UK's Competition Act 1998. An agreement that restricts competition may be capable of being exempted. Clear statements in the Bill or during the passage of the Bill need to be made of the Government's view that improvements to patient care fall to be taken into account within the context of Section 9. Lawyers would then be able to refer to the Bill or to Hansard when arguing for such an interpretation as and when the issue crops up in later cases, especially if the burden of proof falls on the party trying to demonstrate that the agreement is necessary to produce the countervailing benefits. In addition, under Section 6 of the Competition Act, the OFT or Monitor may recommend that the Secretary of State makes a block exemption order specifying that a certain category of agreements falls outside the scope of Section 2 of the Competition Act.
There are many ways of resolving the competition issues under this Bill and I am sure that there is much common ground on this legal analysis. This means that much of the difference between us relates not so much to the law but to the degree of risk prevailing in its application. It is also true that the impact of competition law is likely to be determined to a considerable extent not necessarily by decisions by the competition authorities in individual cases, but in the advice provided by lawyers to their clients operating in the health sector. There is clearly a risk that lawyers and the companies involved will take a conservative approach and avoid potentially beneficial co-operation because of the perceived risk that it might be contrary to the competition rules. So another way to minimise this is for Monitor to issue sector-specific guidance on the likely impact of the competition rules on specific types of health sector agreements.
I believe that these are constructive suggestions so that the unwanted application of competition law can be avoided. It is now up to the Government to recognise the risk and act accordingly. I beg to move.
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Earl Howe: My Lords, competition in the health service is a complex topic and very often, in my experience, misunderstood. It is important that we start with a misconception which several noble Lords have raised with me outside the Chamber and, indeed, in Committee. We need to be clear that competition already exists in the NHS and that the Bill does not herald its introduction. The last Government fully recognised that and encouraged it. The last operating framework which they put in place for the NHS stated:
"We shall enable this by ... re-affirming our commitment to the 'any willing provider' approach for free choice of elective care, reducing the barriers to the entry of new providers".
The previous Prime Minister, Gordon Brown, giving evidence to the Liaison Committee in December 2007, said that,
- "the private sector ... is expanding, will continue to expand and will be a lot bigger in the next few years than it is now".
The Labour Party manifesto of 2010 said:
"Patients requiring elective care will have the right, in law, to choose from any provider who meets NHS standards of quality at NHS costs".
The previous Government's policy of increasing the use of competition is already benefiting patients. The recent report from the Office of Health Economics Commission on Competition in the NHS concluded that,
- "evidence both from the UK and internationally suggests that quality based competition with prices fixed by a regulator can be beneficial, producing higher quality care at the same cost on average and, importantly, not leading to increased inequity in access to health care".
Baroness Thornton: I thank the noble Earl for allowing me briefly to intervene. He has given some useful and selective quotes. Do not those quotes go on to warn very seriously about cherry picking?
Earl Howe: I think that the noble Baroness and I agree that cherry picking is highly undesirable, which is why this Bill outlaws it.
I do not see, as some do, competition and integration as polar opposites, nor are they mutually exclusive. I agreed entirely with the Future Forum when it said in its report last year:
"We have also heard many people saying that competition and integration are opposing forces. We believe this is a false dichotomy. Integrated care is vital, and competition can and should be used by commissioners as a powerful tool to drive this for patients".
That is worth keeping in our minds.
In response to my noble friend Lord Clement-Jones, let me turn to competition law. I understand that some noble Lords want to prevent competition law ever applying to NHS services. That is to wish for the impossible. The question is not whether competition law should apply to the health service but how. That is why I agree with my noble friend that we must make sure that the NHS is insulated from the inappropriate application of competition law. In particular, we must ensure that clinicians are free to commission NHS services in the way that best serves patients' interests and that there are no impediments to beneficial co-operation to increase integration, improve quality or reduce inequalities. Under our proposals, a series of protections will provide the sort of insulation against
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Co-operation for the benefit of patients should not breach competition law. Article 101(3) of the Treaty on the Functioning of the European Union and Section 9 of the Competition Act lay down exemptions which apply if the wider benefits of an agreement outweigh its anti-competitive effects. On an individual basis, we would expect collaborative arrangements whose overall effect was beneficial to patients to meet the criteria in Article 101(3) and Section 9.
Competition law would be unlikely to apply to a wide range of NHS services. Some obvious examples are accident and emergency, trauma, critical care, maternity, specialist surgery and many others, particularly in remote or rural areas.
Monitor would support the NHS to understand where competition law does and does not apply. A key benefit of establishing Monitor as a sector regulator, with concurrent responsibilities under the Competition Act, is that it will be able to provide authoritative guidance to the NHS on where that law would and would not apply. The Government's firm expectation is that Monitor would produce sector-specific guidance and address this question in terms of relevant examples, including models of integrated care and clinical networks, which would be updated in line with developments in healthcare practice. This guidance would help reduce unnecessary fear of legal challenge and uncertainty for both commissioners and providers.
Monitor could also provide informal advice in individual cases, building on what the Co-operation and Competition Panel does now. For example, that might include commenting on what types of collaborative arrangements and specific provisions within such arrangements are and are not likely to comply with the competition rules. Any such advice would be without prejudice to any future decision that Monitor might have to take to enforce the provisions of the Competition Act. However, like the guidance, such advice would provide reassurance to providers and could help them to avoid unnecessary legal costs.
If and when it became appropriate, Monitor could make the case for block exemptions. That would mean that the Competition Act would not apply to specified arrangements for the provision of NHS services. At this stage, it is not clear whether or where block exemptions might be appropriate, but an example of the sort of arrangement that could potentially be covered is clinical networks. In any event, this protection would remain available and there is no doubt in my mind that Monitor would be better placed than the OFT to determine when and where it might be needed.
In these and other areas, competition is unlikely to be effective in providing services on the scale or in the way that best promotes patient's interests. The NHS often acts to promote social objectives to ensure that patients receive the level of service that they could not afford or which private companies might not find it profitable to provide. Applying competition law in such contexts makes little sense and such activities are likely to fall outside its scope.
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Next, commissioners would not have to create markets against the interests of patients. Clinicians will be free to commission services in the way they consider best. We intend to make it clear that commissioners will have a full range of options and that they will be under no legal obligation to create new markets, particularly where competition would not be effective in driving high standards and value for patients. As I have already explained, this will be made absolutely clear through secondary legislation and supporting guidance as a result of the Bill.
The Bill already creates duties on commissioners to secure continuous improvement in the quality of services, reduce inequalities and promote integrated services. The Government intend to complement these by making it explicit through regulations under Clause 73 of the Bill that commissioning decisions must be in the best interests of patients, those decisions must be transparent and commissioners will be accountable for them. We would expect the NHS Commissioning Board to maintain guidance to support commissioners in these decisions, based on the available evidence and drawing on academic research.
It is worth reflecting that without Part 3, the main legal provision on commissioning NHS services would continue to be the general procurement regulations for public bodies introduced by the previous Administration in 2006. The application of that law to the NHS is unclear. Without the provision that we intend to include in regulations under Clause 73, commissioners would continue to face risk of legal challenge when they decided not to open services up to competition, even where the decision was in the best interests of patients. That uncertainty is unacceptable.
Finally, the Bill would prevent private companies taking over NHS trusts or foundation trusts. There has been a lot of misconception about that. I assure the House today, unequivocally, that that could not happen.
I now turn to the opposition amendments. Amendment 163D raises the application of competition law to the provision of NHS services. Its intention is to ensure that competition law does not apply to the provision of NHS services. However, as I have said, there is a basic point to make here: it is not within the gift of this Bill to secure that. It is like saying that if you pass a law saying that black is white, that is what will happen. However, what I agree on absolutely is that we need to protect the NHS from inappropriate application of competition law and its undesirable effects. Equally, as I said earlier, we do not want to leave patients unprotected from potential abuses by providers. That would be the effect of the amendment and I hope that the noble Baroness will reconsider her wish to move it.
I also referred to the fact that this Bill would provide for clinical commissioners to decide how to secure NHS services to best serve the interests of their patients. Hence, I do not agree with Amendment 178A.
The NHS has always been a comprehensive service, free to patients, with treatment and care based on clinical need and delivered through a wide range of diverse providers. That includes GPs, dentists, independent sector providers, NHS trusts, foundation trusts and a range of charities and social enterprises. Taken together,
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Amendment 178A does not acknowledge that reality at all. Instead, it seeks to create an arbitrary and unnecessary presumption in favour of NHS and foundation trusts which would likely act against patients' best interests. For example, the amendment would make it more difficult for a clinical commissioner seeking to manage long-term conditions such as diabetes or COPD in primary care and in the community-involving GP practices or social enterprises-instead of sending those patients to hospital. That could prevent choice for patients in a very crucial area. It could also prevent choice in end-of-life care by restricting the extent to which organisations such as Macmillan and Marie Curie were able to extend the services that they delivered for the NHS. It could prevent charities such as Turning Point transforming-
Baroness Thornton: My Lords, has the noble Earl actually read the amendment? Paragraph 6(c) says,
- "the need to commission health services in a way that promotes the integration of health and social care services".
Will the noble Earl accept that he just said that it does not say that? It says that; it is there.
Earl Howe: My Lords, we are talking about Amendment 178A. I disagree with the noble Baroness's reading of it. It is quite clear what it says. It is geared towards making the NHS the preferred provider. The noble Baroness shakes her head. If I have misunderstood and that is not her intention, I will obviously retract that.
Yet the amendment would increase the risk of commissioners facing legal challenge under procurement law. As the noble Baroness pointed out in 2010,
Amendment 178A would be a retrograde step. I ask the noble Baroness to withdraw it, as well as the other amendment in this group.
Lord Clement-Jones: My Lords, is the Minister aware that many of us will welcome the statement he made? It was very comprehensive-indeed, more comprehensive than would be possible in many respects under an amendment to the Bill. He has covered so many different areas, both in terms of the provision-commissioning duties of Monitor and also the duties of co-operation.
Earl Howe: I am grateful to my noble friend. He very well encapsulated in his speech the issues that we are looking at. I hope that what I said will in turn serve to reassure him on those crucial points.
Lord Clement-Jones: My Lords, clearly I have the Floor. I thought that I had it after the noble Baroness, Lady Thornton, as I was guided. I am very pleased to have the Floor before her.
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What my noble friend Lord Howe said was extremely constructive, not only about the state of competition within the health service and some of the patching that had to be done to make up for deficiencies of the 2006 Act, but also to do with competition, the block exemptions available, co-operation and the general duties of Monitor. A law court would probably find it much more useful to have my noble friend's fuller statement than simply some rather narrow amendment to the Bill. I recognise the deficiencies in my own Amendments 177 and 178. I much prefer the Pepper v Hart solution that has been found and proposed in these circumstances. The dangers of putting matters in the Bill are entirely illustrated by Amendment 178A. The Minister's criticism of that amendment, which was made to me by expert competition lawyers, of trying to put commissioning in a straitjacket as is proposed-it may give the wrong impression, but it is ineffective in terms of EU procurement law-shows exactly the dangers of trying to put too much into the Bill. The Minister, entirely appropriately, has picked up many of the points made during the course of the Committee and in debate today and put forward a statement that will be used by those looking at provision and commissioning in the NHS in future. On that basis, I wholly welcome it. I may not be able to withdraw my amendment to the amendment, but I shall certainly not be moving my Amendments 177 and 178. I beg leave to withdraw the amendment.
Some Lords objected to the request for leave to withdraw the amendment, so it was not granted.
4.41 pm
Division on Amendment 163BZZB, as an amendment to Amendment 163BZZA
Contents 188; Not-Contents 278.
Adams of Craigielea, B.
Adonis, L.
Afshar, B.
Ahmed, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Anderson of Swansea, L.
Andrews, B.
Bach, L.
Bakewell, B.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Bhattacharyya, L.
Bilston, L.
Blackstone, B.
Blood, B.
Boateng, L.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Collins of Highbury, L.
Corston, B.
Cunningham of Felling, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Donaghy, B.
Donoughue, L.
Drake, B.
Drayson, L.
Dubs, L.
Eatwell, L.
Elder, L.
Elystan-Morgan, L.
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Evans of Temple Guiting, L.
Evans of Watford, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Glasman, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grantchester, L.
Grenfell, L.
Grocott, L.
Hameed, L.
Hanworth, V.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hennessy of Nympsfield, L.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St Davids, B.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
King of Bow, B.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Krebs, L.
Lea of Crondall, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Low of Dalston, L.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Monks, L.
Morgan of Ely, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Myners, L.
Noon, L.
Nye, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Owen, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Prescott, L.
Prosser, B.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rees of Ludlow, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Sherlock, B.
Simon, V.
Singh of Wimbledon, L.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Leigh, L.
Soley, L.
Stevenson of Balmacara, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Elvel, L.
Wills, L.
Wood of Anfield, L.
Woolmer of Leeds, L.
Worthington, B.
Aberdare, L.
Addington, L.
Adebowale, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Armstrong of Ilminster, L.
Astor of Hever, L.
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Avebury, L.
Baker of Dorking, L.
Barker, B.
Bates, L.
Benjamin, B.
Berridge, B.
Best, L.
Bew, L.
Black of Brentwood, L.
Blackwell, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Boswell of Aynho, L.
Bottomley of Nettlestone, B.
Bowness, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Broers, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browne of Belmont, L.
Browning, B.
Burnett, L.
Buscombe, B.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Cathcart, E.
Chester, Bp.
Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Condon, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Craig of Radley, L.
Crathorne, L.
Crickhowell, L.
Cumberlege, B.
Dannatt, L.
De Mauley, L.
Dear, L.
Deben, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dundee, E.
Dykes, L.
Eaton, B.
Eccles, V.
Edmiston, L.
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Knight of Collingtree, B.
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Loomba, L.
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Luke, L.
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Lytton, E.
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4.58 pm
Baroness Thornton: My Lords, I apologise to the House for the confusion that has just reigned. I blame the Liberal Democrats for that, but then I would, wouldn't I? The noble Lord, Lord Clement-Jones, decided to seek to amend my amendment. Then, when I said that I would like to accept his amendment, he refused to allow me to do so. What can a girl do when she has been rejected in this way? My Amendment 163BZZA is the lead amendment in the relevant group. It is very disappointing that the Liberal Democrats did not feel confident enough to vote for their own amendment, again. They seem to be making a habit of that.
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Lord Clement-Jones: My Lords, perhaps I may intervene. Has the noble Baroness received legal advice on the benefits of a Pepper and Hart-type statement versus the kind of amendment that her party has tabled, its effectiveness and the width of the statement made by the Minister?
Baroness Thornton: The noble Lord, Lord Clement-Jones, has a very legalistic manner of addressing the House. Of course I understand exactly what was happening there, and I understand exactly what the deal was between his Benches and the Minister, which was that the noble Lord would get a strong statement in response to his amendment. Is he satisfied with it? If so, he is wrong. That strong statement means that the protection comes when legal action starts to take place. I would prefer the protection to be in the Bill. That is what these amendments are about-protecting the NHS. We disagree about that and the noble Lord knows it. If I may address the Liberal Democrat Benches, it seems likely that the noble Lord's spring conference will agree more with me than with him. However, that is his party's problem for this weekend-not ours, for now, on the Bill.
I should like to make two further remarks on the substantive amendment and what the noble Earl said. He suggested that we were making the procurement rules more complex. We were not; we were making them simpler. The NHS deserves protection in the Bill. The Liberal Democrats have made a deal that sells the NHS short, as happened on the issue debated last week on conflict of interest. That is a great shame.
Lord Clement-Jones: I apologise for interrupting the noble Baroness, but does she realise that the more she attacks us, the more chances we have of a very positive outcome at our Gateshead conference?
Baroness Thornton: I was not actually attacking the noble Lord; I was just speculating about what might happen. I feel for Liberal Democrat Peers when they go to their conference this weekend, because they may be in for an uncomfortable time. However, that is absolutely not my business. I will just witness it with interest. It is time that we moved on and I beg leave to withdraw the amendment.
163BA:Clause 60, page 87, line 31, at end insert-
"(c) is to continue as regulator of NHS Foundation Trusts as set out in Chapter 5 of Part 2 of the National Health Service Act 2006."
Baroness Thornton: My Lords, this is a large group of amendments led by our amendment. In fact, we have only two amendments in the group, but they
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Our Amendment 167B would remove Clause 63. It might be easier if I were to explain why that amendment is there. It is not that we are necessarily opposed to Monitor's functions as a regulator of social care, but something as important as this matter should be done not through regulations but in a proper manner through primary legislation. That is the only reason why that amendment is there and we seek the Minister's views on it.
Returning to the amendment, Monitor must remain as the independent regulator of foundation trusts. We do not believe that now is the time to relax oversight of foundation trusts. We can be confident that the Francis inquiry will have views on this. We support trusts becoming foundation trusts, but only half of trusts have achieved foundation status, and the issues facing those unable to achieve the required standard remain. There is yet another drop-dead date; my Government had a drop-dead date and that did not work; we do not think that another drop-dead date will change that situation.
We must also be cautious in overclaiming the merits of the foundation trust model, because time will tell. Monitor has an important role in that, which should continue, although we do not support the need for an economic regulator for our NHS, because we do not see healthcare as a market. I do not intend to rehearse those arguments, but patients are not consumers, and choice for patients is not shopping. Economic regulation and privatisation are certainly linked in the view of those who want to break up our NHS-many of those who want the Bill in the private sector.
The Bill is radical, not evolutionary. We believe that the Government should have taken a different approach, but it is important that Monitor continues to carry out its role. It should not be asked to do two roles: those of the foundation trust regulator and the economic regulator for the NHS. We think that that presents Monitor with an insurmountable conflict of interests and that it lacks the capacity and capability to carry out the enhanced role. I hope that the Minister will accept our sequencing idea-I freely confess that it was stolen from the noble Baroness, Lady Williams, who first used the word sequencing- which is to allow Monitor to become an economic regulator only after it completes the job of authorising all those bodies which will get foundation trust status after a few years' oversight. We believe that Monitor should take on those new duties and roles only at that point, May 2016, which is in the Bill.
Even for supporters, there is a realisation that Part 3 is a direct challenge to the idea that local commissioners will be free to shape local services as they see fit. The more we have patient choice, the more we have any qualified provider, the more regulatory enforcement around competition, the less need for commissioners. That is the central irony of the Bill. Any commissioner needs to read Clauses 19 and 73.
I think we need a discussion about Monitor's roles and functions. I will wait until I sum up to comment on other noble Lords' amendments in the group. I beg to move.
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Lord Warner: I speak to Amendment 164 in my name, which is in this group. It returns to the issue I raised in Committee: the need for Monitor to produce an early report on the barriers to entry for new providers of services to the NHS. Although he had sympathy with what I was trying to do, the Minister did not like my previous amendment, which would have required Monitor to produce a report within 12 months of Royal Assent on barriers to NHS entry to new providers. I think that he accepts that there are barriers to entry for new providers which we need to tackle. In this amendment, I have added the words "identifying and" to the requirement in Clause 61(3) for Monitor to prevent anti-competitive behaviour.
I recognise that many people in this House and in the Commons do not share my view on the virtues of competition when used selectively for patient benefit. I will not go over all the ground again, but I think there is good evidence-the noble Earl cited some of it in an earlier discussion-that that has proved beneficial to patients. Moreover, the UK is almost unique in large advanced healthcare systems in enshrining monopoly public providers of hospital services, with little challenge to their efficiency or effectiveness. These NHS monopolies have been very good at erecting barriers to entry for newcomers and ensuring-if I may put it as unkindly as this-a quiet life for monopoly incumbents.
We should be concerned about this. Only last week there were some startling statistics in the Health Service Journal about non-foundation trusts' poor performance in achieving savings requirements in line with the Government's targets. I have no problems with the Government setting those targets for non-foundation trusts to improve their efficiency. None the less, however we frame the competition provisions in this legislation, we have to face the fact that it is extremely difficult for new entrants to dislodge incumbents in many of these services where the performance is poor. That is why in my view Monitor should, after the Bill receives Royal Assent, quickly identify clearly existing barriers to entry so that they can be dismantled in the public interest. The Co-operation and Competition Panel has already identified some of the barriers for new entrants to the NHS market-and, again, I make no apology for talking about an NHS market. It is important that we see healthcare, in part, as a market where new providers can provide better services and different types of services more effectively.
I hope that the Government will look sympathetically at this modest amendment to try to get Monitor on the case of identifying barriers to entry.
Baroness Williams of Crosby: My Lords, I have two amendments in this group, Amendments 163C and 166B, which also stand in the name of my noble friend Lord Marks. However, before I address those relatively short amendments, I should like to say a word or two about the broader issues that we have been discussing. I begin by perhaps giving a little comfort to the noble Baroness, Lady Thornton, by saying that my understanding is that we will be discussing the whole issue of the relationship of Monitor to foundation trusts later in the proceedings. Our amendment on this matter, which is not far removed from hers, addresses an amendment to the government amendment on this
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I want to say a word about competition, and it is appropriate to do so given that the noble Lord, Lord Warner, has just been speaking. He has always spoken with some courage on this issue, which I recognise is not exactly popular with his party. However, I say quite directly that I feel very strongly that we have allowed the issue of competition to become quite different from the reality that we have encountered in the Bill, in this House and from the argument that is going on outside. That is because we have tried to treat competition as an absolute-either we have a competitive market for the National Health Service or we have no competition at all-and we all know that to be false.
We all know that there is a role for competition but the argument is about how limited it should be, what it should be addressed to and whether it is then balanced by, for example, equally strong duties in relation to co-operation, integration and the bringing together of services. I think we all recognise that competition can make a significant contribution in innovation and bringing in new ideas. For example, we have only to look at the recent developments in the treatment of stroke victims and victims of heart conditions to see that there has often been an innovatory role for the private sector. However, many of us also believe, as I certainly do, that the National Health Service should continue to be primarily a public service, that it should be available free of charge and that it should be accessible to all. Therefore, competition must exist but essentially it must be balanced by other considerations which, in the case of what we have been discussing recently, are clearly of great significance-particularly the role of the integration of services and the role of co-operation, which in terms of our main priorities, including the care of the elderly, are absolutely central and crucial.
5.15 pm
If we can get the debate on to those issues, what will the outcomes be and what will the practical effects be? We may then be able to contribute to a National Health Service which remains a public service but which is also capable of advancing and moving in innovatory and new directions. Frankly, that is what many of us on our Benches and, to be fair, many on other Benches-the Labour Benches, the Cross Benches and the Conservative Benches-want to see as well. I am thoroughly fed up with reading pieces on social network sites, such as Twitter, which have presented this debate in terms of how we voted on the last amendment and if we did not vote for it then we must be in favour of the marketisation of the NHS. That is simply absurd and it makes me very angry. It adds to what has become a silly debate, a fictional debate which has led a great many people to believe that what is being discussed here is not at all what is being discussed, but some other strange, nightmare battle between marketisers and publicisers and no possible compromise can properly be reached between the two. I feel very strongly about that. I am fed up with
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Our amendments are quite simple and appropriate. On the basis of what is in the Health Act 2006, they say that it should be possible to insist that Monitor says, in statements, precisely what it has done in terms of two of the 2006 Act's main objectives. The first of those is a comprehensive health service-here we go-and I am delighted to see the noble Baroness, Lady Jay, in her place. She built the commitment to a comprehensive health service right back in the initial constitutional structures of the NHS and, in my view, for that we are all greatly in her debt. The second addresses the issue of the quality of health services across the board. A statement should be made by Monitor on both those points. That is the first of our amendments.
The second of our amendments states that, those statements having been made, guidance should be issued by Monitor to ensure that they are implemented and become the case. Again, I think that it is an unexceptional amendment. It takes very seriously the mandate that many of us in this House have attempted: to enrich and embolden an essential weapon or tool for setting out the objectives of the NHS from the Secretary of State in each year. Effectively, these amendments say that Monitor shall make the statements; that Monitor shall ensure that those statements are carried out; and that it will do that within the structure and on a mandate, with the Secretary of State's overall objectives, that will be reflected and clear. That is exactly what we want. We want clear objectives, agreed by all; we want a commitment by the House and by many beyond it, including the professional bodies, to do exactly those things. We want a comprehensive health service, directed towards increasing and improving quality; directed towards accepting innovation that will not threaten the health service but enrich it; directed, not least, to dealing with the inequalities that still exist; and directed to ensuring that we address them in a wholehearted and determined spirit. I beg to move.
Baroness Finlay of Llandaff: My Lords, I have Amendment 165 in this group. It is designed to prevent anti-collaborative behaviour in the provision of healthcare services for the purposes of the NHS. Promoting collaboration and integration must be at least as powerful, if not more so, than preventing anti-competitive behaviour. We are well aware that no two patients are the same and, to date, all too often professional boundaries-whoever is the person providing the care-have created barriers. Those are very evident between primary and secondary care and can prevent a seamless patient experience.
This is not an amendment to prevent different providers coming together. Its aim is to ensure that whoever those providers are, whether they are NHS, whether they are from the voluntary sector or whether they are from social care, they must collaborate for the benefit of each individual patient. Therefore, the ways in which they will need to be able to collaborate will
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Population health needs and inequalities must be considered at the planning stage. Even doing that will require close collaboration between those doing the assessments. The tariff should reflect the complexity of clinical care and should encourage integration and collaboration between providers. The danger exists at the moment of a tariff structure that does not reflect clinical complexity but overcompensates for simple conditions and for those where there is a discrete episode of care, and does not recognise ongoing complexity. The tariff must work toward commissioning across the whole patient pathway. Information and data gathered around patients and clinical services should also reflect that. I hope that the amendment will make sure that the need for collaboration occurs at every level across providers, because at the end of the day Monitor will have the responsibility for licensing all providers.
The other reason for the amendment is that there will be times when competition and collaboration might appear not to be one and the same, and may indeed look to be in conflict. My concern is that unless there is a requirement for collaborative behaviour, it will be all too easy for the justification for commissioning to be based more on competition than on collaboration. In the balance of doubt, patients need to know that there is collaboration between their providers. There have been examples in social care and in the delivery of healthcare in care homes where integration could certainly have improved, for example, the unacceptable level of medication errors. Collaboration is going on among a variety of agents and stakeholders to develop practical solutions and an integrated approach to medication safety in care homes. Public health, too, requires the three arms of health improvement, health protection and healthcare delivery to work together, and will be very dependent on collaboration with other aspects of the NHS.
Perhaps I might take this opportunity briefly to correct a piece of information that I gave to the House in our previous debate and which turned out to be a little out of date-for which I apologise. It related to troops coming back from our theatres of war, where the provision of prosthetics has improved. This is an example of good collaboration between all agencies, which has been underpinned by the military covenant that the Government supported and instigated in legislation. The result has been an improvement in the care of those who are extremely vulnerable.
I hope that the House, and the Minister in particular, will see that there is a need to make sure that collaboration is driven forward between all providers, wherever they
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Baroness Cumberlege: My Lords, I, too, tabled an amendment in this group. Before I speak to it, I will say that I very much support what the noble Baroness, Lady Finlay, said. I was interested in an article in the BMJ that she, too, may have seen. It was a report by Nigel Hawkes on how competition works in healthcare and how it can stimulate the provision of better services. He went on to say:
"The report dismisses claims that competition makes integrated care impossible or that the opening of tendering a service to 'any qualified provider' amounts to privatisation of the NHS",
which is what we are proposing-
- "can produce higher quality care at the same cost-and without leading to increasing inequity in access to care. Our message is that competition can help the NHS, but proceed with care".
It is "proceed with care" that many of us want. Although I support the idea of competition, the National Health Service is not a free-for-all but a regulated market.
I think we need competition. Looking at the summary scores of the seven nations surveyed on health system performance, which have often been mentioned in earlier debates in this House, we do very well compared with other developed countries, but when it comes to patient-centred care, we come last-seventh. That is really why competition is necessary: to make the health service much more sensitive to the needs of patients.
I appreciate that noble Lords must label me the greatest bore on earth, but I am going to continue to bore because I am going to relate Monitor to the duties for patient and public involvement. This amendment introduces the same definition and scope of involvement for Monitor as Amendment 142, which I moved earlier on Report, on duties for NHS commissioners, including public and private providers.
On 16 February, I received a letter from my noble friend Lord Howe on patient and public involvement, and since then I have had some useful meetings with him. The context of this amendment is that patient and public involvement must be robust as we are moving towards a stronger, more plural market, which I support. Patient and public involvement is an even more indispensable component in a market where the consumer role is split between commissioners, who hold the money, and patients who consume the service. PPI must bridge this gap for the market to work well, as patient choice will never apply to some NHS services.
Given its pivotal role in the reformed NHS, it is vital that Monitor has a PPI duty that is consistent with that of the providers it is regulating. The Bristol Royal Infirmary public inquiry 11 years ago led to the statutory PPI duty and its report specifically mentioned regulators in the list of bodies that should have this duty, so Clause 61(7) is very welcome. However I do not feel that the wording of Clause 61 goes far enough to achieve the Bristol recommendation that regulators,
- "must involve the public in their decision-making processes, as they affect the provision of healthcare by the NHS".
On the broader PPI duty, my noble friend helpfully clarified at our meeting that statutory guidance will be used to describe what is reasonable in terms of PPI
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I think it is the Government's intention to create a level playing field for patients and the public to influence private providers who are under contract to the NHS in the same way that they can influence NHS providers. Can my noble friend assure me that that is the case? That would be very helpful, particularly as providers may challenge statutory guidance as burdensome under the duty of autonomy in Clause 4 as amended.
5.30 pm
In contrast to this clearer PPI framework for providers and commissioners, currently Monitor may decide unilaterally what type and level of involvement, if any, is needed in its decision-making against unspecified criteria. If it decides that no involvement is needed, there are no criteria on which this can be challenged, even by the Secretary of State.
Monitor's primary duty in Clause 61 is,
having regard to the 11 matters listed in the clause, including quality of and access to services. Government Amendments 193 and 194 are very welcome in bringing Monitor's role closer to the patient's interest, including health inequalities and quality of service. However, it seems illogical to recognise that providers and commissioners of services need enforceable statutory guidance on how to involve patients in deciding what is best for them, when they have been trying to do it for 11 years with mixed success, whereas Monitor is expected to become immediately expert and have total discretion without any criteria against which that discretion is to be exercised. Perhaps my noble friend could give me the assurances I seek.
Lord Walton of Detchant: My Lords, I will briefly speak to Amendment 167 in this group, which has been tabled in the name of the noble Lord, Lord Hunt of Kings Heath. I understand entirely why he has tabled this amendment but, with respect, I do not believe that it is necessary.
All medical bodies, including the BMA and the General Medical Council and others, now agree that the days of doctor's orders are long past. The practice of medicine is a partnership in which it is up to the doctor to recommend to the patient what course of action is most appropriate in the patient's best interests; what it is appropriate to do in order to reach a diagnosis; what tests are appropriate in order to achieve that diagnosis; and what course of treatment would then be necessary. However, it is up to the patient to decide whether or not to accept that advice and it is not possible for a doctor to carry out a test without the informed consent of the patient.
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It is also well agreed by these medical bodies that if a doctor has given full and detailed information to a patient about the course of action that is appropriate, and if the doctor recommends a particular course of treatment that he regards as being necessary in the patient's best interests, the patient may nevertheless have the right to refuse that advice even if refusal of that advice ends in the patient's death. For that reason, as all of these issues have been dealt with repeatedly in the advice given by the GMC, the BMA and other bodies, I do not believe that this amendment is necessary.
Baroness Barker: My Lords, the noble Lord, Lord Walton, will be aware of many occasions in this house-when the noble Lord, Lord Hunt, was Minister and some of us were in opposition-when we listened to Lord Weatherill speaking on behalf of Christian Scientists, who often wish to refuse treatment. I understand that this amendment originated from the Christian Scientists, who merely wish to draw again to the attention of the medical authorities the fact that they have a belief system that deserves the same amount of dignity and respect as any other. Perhaps he might view the amendment in that light.
Lord Hunt of Kings Heath: My Lords, I do indeed recall the debates that we had during one of the many health and social care Bills that have gone through your Lordships' House in the past few years. It was indeed Lord Weatherill who raised the issue with me. Essentially, it was about standards in nursing homes where there was some concern that an insensitive regulator would take action against a home that was actually respecting the wishes of a member of the Christian Science religion. We were able to reach a satisfactory solution. An appropriate amendment was put forward and I think the noble Earl, Lord Howe, was also part of what I like to think of as the "second Weatherill agreement". We may need another one in a couple of years' time-who knows? I ask the Government for an assurance that the position that we then agreed will continue under the new Bill.
Lord Marks of Henley-on-Thames: My Lords, I will speak briefly, in addition to what my noble friend Lady Williams of Crosby said, to the amendments in our names concerning the Secretary of State giving guidance to Monitor: Amendments 163C, 166B, 173A, 173B and 173C.
These are further amendments concerning the role of the Secretary of State and are intended to ensure that the Secretary of State has a practical and effective influence over Monitor's overall approach to the work it does. The Secretary of State would exercise that influence by issuing statutory guidance to Monitor that will have to be published and laid before Parliament. The guidance in each case could be revised but the revised guidance would also have to be published and laid before Parliament.
The heart of the scheme is Amendment 166B. The duty referred to in that amendment under Clause 61(9) is the duty on Monitor to exercise its functions consistently with the Secretary of State's duty to promote a
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Amendments 173A to 173C empower the Secretary of State to give guidance to Monitor in line with any guidance that he has published under new Section 13E of the 2006 Act. That is the so-called outcomes document issued by the Secretary of State to the board in connection with securing continuing improvement in the quality of services and outcomes achieved by the health service. These amendments make it incumbent on Monitor to have regard to that guidance, which must also be published and laid before Parliament. Amendment 163C concerns reporting by Monitor so that in its annual report Monitor would be required to state what it did to comply with the guidance, envisaged by these amendments, given by the Secretary of State in relation to the exercise of its functions.
These are modest but important amendments. They seek to weave into the fabric of the Bill a clear role for the Secretary of State to give strategic guidance to Monitor in line with the Secretary of State's overarching duties, in particular with the objectives set out by the Secretary of State in his annual mandate to the board, and in line with the outcomes document that he publishes that is designed to ensure the board's performance of its duty to secure improvement in the quality of services.
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