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Health and Social Care Bill

Volume 733: debated on Monday 28 November 2011

Committee (8th Day) (Continued)

Amendment 133ZA

Moved by

133ZA: Clause 20, page 18, line 37, at end insert—

“13L1 Duty in respect of education and training

(1) The Board must promote education and training of the health care workforce, having taken note of the responsibilities of the regulatory authorities, academic and professional organisations, and consulted Health Education England.

(2) In exercising its functions, Health Education England must take steps to ensure that providers of health services in England have due regard to any minimum numbers of training placements that it may specify.”

My Lords, we return yet again to education and training. There is so much anxiety about the issue of education and training and workforce planning that I have had several representations, in particular one from the Royal College of General Practitioners.

Government Amendment 43 places a duty on the Secretary of State to ensure that there is an effective system for the planning and delivery of education and training of the healthcare workforce. In order for this to be an effective system, a duty must be placed on the NHS Commissioning Board to promote education and training. This amendment seeks to do exactly that. As the board is nationally accountable for the outcomes achieved in the NHS and is also tasked with providing,

“the support and direction necessary to improve quality and patient outcomes and safeguard the core values of the NHS”,

it is only right that this duty to promote education and training is included as part of the core responsibilities of the NHS Commissioning Board alongside the existing duties in respect of research, variation in the provision of health services, and so on.

We must try to get education and training structures right so that the long-term sustainability of the health service is maintained with patient care continually improving. This must be reflected in the approach taken to commissioning, with the NHS Commissioning Board taking note of the needs identified by regulatory authorities and academic and professional organisations so that plans are in line with national strategies. In carrying out this important role the board should consult Health Education England as it has a vital role in providing sector-wide leadership and oversight of workforce planning, education and training in the NHS.

The second part of my amendment deals explicitly with the role of Health Education England, as it will oversee the current system for providing education and training via a levy set on providers, and aims to make sure that there is adequate capacity in training to meet the needs of the health service. Under the current proposals, healthcare providers are to work together in provider-led networks to manage the planning and commissioning of education and training. However, if there is no specification of the minimum number of placements—the minimum number of trainees that should be provided in each sector—providers, especially those such as alternative or private providers that might work to make profit, with shareholders to answer to and an increasing range of competitors, will have little impetus to provide adequate numbers in the long term. The future of the NHS depends on having sufficient numbers of trainees in all specialties, including general practice, and the training of the next generation of doctors and other healthcare professionals will be put at risk if these plans are not strengthened. Furthermore, with the likely greater specialisation of some providers, and the non-requirement for all providers to provide educational opportunities, there is a risk that the overall quality of postgraduate generalist medical education will be affected due to reduced opportunities to widen the range of disease types and treatments that the students will see.

The policy of any qualified provider, alongside the pressures of the Nicholson challenge, should not be allowed to affect the provision of education and training by providers, whether they are new or old. Health Education England should therefore be tasked with taking steps to set a minimum number of trainee placements for each sector within the health service and to hold providers to account where necessary.

The amendment demonstrates the anxiety felt by a whole range of people in different parts of training and education. I know that the chairman of the Academy of Medical Royal Colleges, the medical school deans and the postgraduate deans have recently sent a letter to the Secretary of State expressing their concerns. I hope that it will be possible to get this right with a solution that is acceptable to all sides, including the Government, so that we have in the Bill something which does not affect government policy but demonstrates that the Government are serious about making sure that the education and training of the healthcare workforce will be a priority.

My Lords, it may assist the Committee if I indicate at this early point in the debate that the Government are extremely sympathetic to this group of amendments. As noble Lords will know, I have already committed to publishing, prior to Report, a much more detailed set of proposals for health education and training in the light of the forthcoming recommendations of the NHS Future Forum, and I hope that this will prove helpful. However, I can now go further.

These amendments focus on how commissioners in the new system will foster high-quality education and training in the health sector and on the potential role of regulators and Health Education England in supporting the education and training system. The Government have listened carefully and we are persuaded by the intent behind these proposals. I therefore now commit to taking away the amendments, considering them in a constructive spirit and bringing forward our own proposals on Report aimed at addressing the issues raised by the amendments. I hope that the Committee will welcome this undertaking. I am of course willing to meet noble Lords between now and Report to discuss the underlying issues further.

I add my thanks for the Minister’s remarks. I look forward to seeing amendments which thread education and training through all parts of the Bill with duties on everybody at every level.

The Minister has completely taken the wind out of my sails. I had every intention of going at this hammer and tongs because all the medical organisations and all those involved in education and training are deeply concerned about the absence of detail in the Bill. The Minister has now reassured us greatly. We look forward earnestly and with keen anticipation to seeing what he proposes for the Report stage and hope that it will be adequate.

I rise without notes, which is very unusual for me, to thank the Minister very much indeed. There is anxiety about education among nurses, midwives and particularly community nurses—they are getting very agitated. Therefore, I am absolutely delighted that we shall see something soon.

My Lords, I, too, want to congratulate the Minister on his very helpful statement on education and training which is warmly welcomed not only in this Chamber but I suspect broadly through the medical and healthcare professions. This issue has caused tremendous anxiety. To provide clarity and the opportunity for it to be addressed in a constructive way on Report is genuinely welcome.

I, too, welcome the Minister’s statement. He will know that I have no qualifications in this but I have raised the issue of nurse training twice in the House this year—in the debate in March and at Question Time in October. I just want a point clarified. The amendment of the noble Lord, Lord Patel, refers to the board promoting but,

“having taken note of the responsibilities of the regulatory authorities”.

Does the Minister include possible changes and recommendations to the regulatory authorities in terms of their aspect of education and training?

My Lords, no, because the Bill does not cover the duties of the regulatory authorities themselves, the professional regulators that is to say. My undertaking should be read as relating to the Bill itself and the bodies and structures it sets up.

Amendment 133ZA withdrawn.

Amendments 133A to 135A not moved.

Amendment 135AA

Moved by

135AA: Clause 20, page 19, line 16, leave out “encourage” and insert “mandate”

I will be brief so perhaps we can make a little more progress this evening. These four amendments come as a group; originally they were in two groups of two, but actually they hang together as a suite. They are probing amendments, and I thank the Royal College of Paediatrics and Child Health for its help with them. These amendments are intended to arrange for the organisation of carer children and young people, particularly young people who are vulnerable, and are about guaranteeing their safety and well-being and safeguarding them. When I was rereading the amendments earlier and making my notes I realised that they are not in the context of children necessarily and thought that they might just as easily apply to vulnerable adults, but certainly the intention was around children.

Successive Governments have tried without an awful lot of visible success—or perhaps there have been successes, but with some high-level and visible failures—to integrate services for young people. From Victoria Climbié to Baby P, there are still issues around silos not talking to each other. We have not got integration absolutely right.

In many ways, the Bill does not help streamline services for young people: if you are under five and going to be looked after by health visitors it is the responsibility of the board; if you are over five, school nurses come under the auspices of the health and well-being boards; primary services, local services, mental health and acute services are all under clinical commissioning groups. Within the Bill there are several different organisations responsible for delivering services to young people.

I will very quickly go through the meaning of all the amendments. Amendment 135AA concerns the general duties of the board in promoting integration. The wording of the Bill encourages commissioning groups to enter into Section 75 arrangements with local authorities. The amendment suggests that we move to mandating—and it occurs to me that somebody really should produce for this House a sliding scale of verbs from “may” right up to “mandate” so that we can work out exactly where they all sit within the hierarchy. Certainly this is a probing amendment, however, so I am using the verb “to mandate”. We are talking about Section 75 arrangements involving pooled, shared budgets. Shared budgets will give you shared ownership and shared solutions to problems. With shared solutions one will get shared decision-making. For this vulnerable group, we need shared decision-making.

Amendment 197BA concerns the general duties of clinical commissioning groups. It covers the duty to obtain appropriate advice. The intention of the amendment is to add in experts in maltreatment. Nobody could gainsay that. Whether it needs to be in the Bill, I do not know. We would appreciate some indication from the Minister on this.

The third amendment in the group concerns the establishment of health and well-being boards. It would add to the board a representative who is a health professional, for safeguarding. The final amendment in the group, Amendment 331AB, concerns the function of health and well-being boards and the duty to encourage integrated working. Again, it uses the word “mandate”, which I appreciate is at the top of the scale. It mandates people who work in health and social care to work in an integrated manner.

I do not apologise for the verb, because the situation is very serious. Young people who need the most care run the risk of falling into holes where there is nothing joined up. We are saying that the Bill puts the patient first and we talk about integration running all the way through the Bill. Sadly, it does not look like this will happen in children's services. The amendments in the group try to make it happen. Perhaps the Minister will offer clarity on the level of detail—which clearly is not in the Bill—that will be in secondary legislation to help with this. Successive Governments have tried to get this right but it has not always worked on the ground. This is an opportunity to rectify that. I beg to move.

My Lords, I sympathise with the motives of the noble Baroness who tabled the amendments but I am not sure whether they are persuasive. Mandating is not necessarily the right approach. It is certainly not the correct approach for health and well-being boards, because they are not executive decision-making bodies. We hope that the boards will produce joint strategic needs assessments, to which the clinical commissioning groups will have to have regard. There will certainly be joint working there, but the boards will not be in a position to mandate anybody. Therefore, while the aspiration is noble—appropriately—the phraseology does not necessarily achieve what is intended.

I expect the Minister to say that he envisages that the precise object that the noble Baroness is pursuing will be taken into consideration and acted on by the relevant parties: in this case clinical commissioning groups in particular. Obviously these are probing amendments. They should not be reflected in a substantive amendment put to the vote—unless of course the noble Earl departs from his usual practice and accepts them.

My Lords, the amendments concern the issues of integration and advice, and in particular the use of arrangements under Section 75 of the National Health Service Act 2006 between the authorities and clinical commissioning groups. Section 75 arrangements would effectively be a means for CCGs and local authorities to work together in an integrated manner, often to commission health and social care services. The Bill contains a number of provisions to encourage and enable the NHS, local government and other sectors to improve patient outcomes through more effective co-ordinated working. It provides a basis for better collaboration, partnership working and integration across local government and the NHS at all levels.

Health and well-being boards will have a strong role in promoting joined-up commissioning between health, public health and social care. Through their duty to promote integrated working between commissioners, they will also be in a good position to be able to promote more integrated provision for patients, social care service users and carers. They will also be able to encourage close working between commissioning of social care, public health and NHS services and aspects of the wider local authority agenda that also influence health and well-being, such as housing, education and the environment.

Through statutory guidance on preparation of the joint health and well-being strategy and the Government’s mandate to the NHS Commissioning Board, we will be encouraging lead commissioning and integrated provision. Section 75 arrangements are an effective means of enabling local authorities and the NHS locally to align and pool budgets, as well as share other resources, such as staff, goods and services, for a wide variety of functions, to meet the health and well-being priorities of the local population. CCGs will sometimes, rightly, want to enter into these arrangements but there will be other times when they will not. The NHS Commissioning Board, under its existing duty to encourage CCGs to enter into Section 75 arrangements, could decide to include guidance on the matter in the commissioning guidance that it must publish for CCGs and to which CCGs must have regard.

Our strong view is that commissioners, who are after all ultimately concerned with improving health and social care outcomes rather than focusing on working arrangements, must be allowed the ultimate discretion to decide which arrangements are the most appropriate under differing circumstances. That is why we do not intend to mandate integrated working or to specify the form in which integrated working should take place. Approaches to commissioning and delivering integrated care will be dependent on local circumstances and, as such, we do not wish to force organisations to follow a fixed model of integrated working. CCGs are already under integration duties in their own right, and as members of health and well-being boards they must co-operate with the health and well-being board in the exercise of its functions, which will include duties in relation to encouraging integrated working between commissioners of health or social care services.

The Bill sets out a minimum membership for health and well-being boards but one that can be added to by either the local authority or the health and well-being board. We recognise that local authorities and the boards themselves will want to draw sensibly and flexibly from a range of expertise in addition to the minimum membership outlined in the Bill. It is important to be clear that the purpose of this policy is not primarily about setting up a committee but about stimulating effective joint working for and with local people and communities. The health and well-being board will be central to this joint working but it must not represent its limit. We know that a large number of local areas are already working with all the relevant stakeholders to explore and agree how they can work together in the future to make the biggest difference to local people so that everyone, whether that is district councils, clinicians, local providers or the voluntary sector, can contribute in the most appropriate way. That is something that is best left to these conversations rather than being prescribed in the Bill.

Finally, the duty in new Section 14V to obtain appropriate advice is related to the definition of the comprehensive health service and is itself deliberately wide in scope. In response to Amendment 197BA, it could indeed include any health-related issues relating to maltreatment. There is no reason why CCGs would not seek professional advice in relation to maltreatment, but this is only one of many specialist areas. I hope that this reassures my noble friend and that she will feel able to withdraw her amendment.

Amendment 135AA withdrawn.

Amendments 135B to 135D not moved.

Amendment 136

Moved by

136: Clause 20, page 19, line 42, leave out from beginning to end of line 1 on page 20

My Lords, three amendments are tabled in this group in my name and those of my noble friends. They are principally probing in nature on some important points that need clarification. Amendment 136 would leave out the duty on the board in respect of the variation of the provision of health services; while Amendment 268 would leave out the instruction that:

“Monitor must not exercise its functions for the purpose of causing a variation in the proportion of health care services”;

while the third element of the group seeks that Clause 144 should not stand part. This clause relates to the:

“Secretary of State’s duty as respects variation in provision of health services”.

It would seem that this group of provisions provides the Secretary of State, Monitor or the NHS Commissioning Board with the ability to increase or decrease the share of market for the provision of health services held by a particular group of providers. I assume that this also applies to CCGs, but I would be grateful to the noble Earl if he could explain whether that is the case. I would also be grateful if he could say how these will impact on the provision of primary medical services and the contracting for them by the NHS Commissioning Board. Can he further say how this will affect the commissioning of services by CCGs when they propose to commission services either from hospitals, other primary care providers or private sector hospitals? I suppose that what we are seeking is clarification of the definition of “providers”. For example, let us say that a strategic decision was made by a clinical commissioning group to switch priority from secondary care to community care and that it was a deliberate decision to increase or decrease the share in the market by a particular group of providers, what would be the implications of that for other providers? We also need to think about the issues of cherry-picking that have been mentioned.

This clause was added with a certain amount of fanfare as the Government’s response to the Future Forum and attracted claims of victory by the Liberal Democrats over the threat of privatisation. I give them credit for trying to protect the NHS from the full force of the then draft Bill. But the reason why we want to explore these provisions is that we are concerned that they will not achieve what has been claimed for them. As with so many concessions, you need to scratch beneath the surface to see whether they actually achieve what you want from them.

First, are these provisions effective in achieving the aim of preventing the overt promotion of private companies in the National Health Service? The impact assessment of the Bill still states that the aim is to promote a so-called “fair playing field”, and it goes on to say that, an important way of making the market work will be to rebalance so-called fair playing field distortions, citing a report which calculated that the NHS enjoys a £14 cost advantage over the private sector for every £100 it spends. We know that at present around 3 per cent of NHS funding is spent on the private sector. This is also taken as an indicator of an unfair playing field for private providers. Therefore, in order to achieve parity between the sectors, the Bill requires that all CCGs, Monitor and the Secretary of State should provide extra subsidies to the private sector, and to promote it so that it does have parity. If this does not happen then, according to the Government’s own impact assessments, these reforms will fail.

We also know that other words and actions from the Government suggest that the promotion of the private sector is continuing unabated. The noble Earl himself reportedly told a private health company conference that the reforms offer huge opportunities for the private sector. Most recently, we have had the continuing agenda confirmed by an operating framework that sets out both the agenda for the commercialisation of commissioning support, which is a deliberate policy to remove commissioning from the public sector, and the announcement of a performance measure of the trend in value/volume of patients being treated at non-NHS hospitals. On this side of the House we are unconvinced that this intention has gone out of the Bill and remain concerned that the long-term aim of using competition law and the market to provide a wedge for privatisation has not been removed. I ask the Liberal Democrats to look at these questions very carefully. On this side of the House we question this clause because we do not think the NHS can—or should—be blind to the governance and ownership of its providers.

We think it is right that the Secretary of State should be able to say that the NHS is the preferred provider in certain situations, particularly where existing services are performing well through performance management, collaboration and professional motivation. It may be desirable for a commissioner to maintain continuity of emergency and critical care services that are not amenable to the open market and in order to do so it may need to manage the system of providers locally. We are learning the hard way from Southern Cross what happens when commissioners turn a blind eye to the governance and business models of providers of social care. We should not be afraid of saying that organisations with a social purpose should sometimes be promoted above those driven by narrow financial interests.

That is not about preserving the world the way it is, or perhaps once was. We think this clause could actively prevent policies that this side supports and which have been promoted in government, including the right for NHS staff to request to set up a mutual social enterprise—we will be discussing that in a later group of amendments—with support to do so and protections from well-financed bids from multinational companies. We understood that the parties opposite supported these aims as well, but in supporting this clause they may show to the third sector that they will have no more assistance in development from this Secretary of State.

It is worth noting that while the amendment was introduced following the Future Forum, Peers will have received a briefing from ACEVO whose chief executive chaired the choice and competition strand of the Future Forum exercise. Therefore, my final remarks are from that briefing. This is what ACEVO has said:

“We believe that the unintended consequences of the Government’s policy to ‘outlaw any policy to increase the market share of any particular sector or provider’ would be that people in the NHS Commissioning Board and NHS more widely would interpret the Health and Social Care Bill to mean that capacity building and other policies which support the development of voluntary and community organisations would become illegal”.

It goes on to say that this would have the unintended consequences of:

“Stymying various Government policies, from building the capacity of charities and community groups to supporting public sector staff to form new mutuals/social enterprises (the Department of Health previously said it wanted to ‘create the largest and most vibrant social enterprise sector in the world’ … Making it harder for charities and community groups to provide services and support that many (particularly those who are vulnerable and hard to reach) rely on”.

This is a very serious probing amendment. Between now and Report it is going to be very important that all those organisations and parties who think that they have solved the problem, consider that they may, in fact, have made the situation worse. I beg to move.

My Lords, I remain puzzled by these amendments from the Labour Benches because it seems quite clear that the purpose of the provision was to make sure that the commissioning groups and the board would not use their considerable influence and power to change, for dogmatic reasons, the balance between private and public sector provision. That must be right. It must be right that only quality and the response to patients’ needs should determine what that balance is. I very much welcome this provision. I thought it was an important safeguard against anybody seeing the Bill as having a particular dogmatic purpose. I was quite surprised that the Labour Front Bench took a different view and put down these amendments. It seems as if it was determined to find some flaw in this provision and it is a provision that is intended to show genuine commitment to a level playing field. It is perfectly proper for the Labour Front Bench to pursue questions about the provision but it is quite clear that it refuses to take the provision, even for a moment, at face value.

I have one or two questions. I know that the hour is late so I do not intend to keep the House for more than a moment or two, but there are some interesting questions to raise. One question was about the position with regard to the partnership that has been advocated by the Minister in other parts of this Bill and the deliberate attempt to reach partnerships between the private and public sector. For example, the private sector in its role of innovating and coming up with new ideas would be very properly in some cases partnered with a public sector body, such as a clinical commissioning group. How does the Minister see that as compatible with the wording of the Bill?

The wording of the Bill is pretty clear. It relates first to the board and then to Monitor and makes it plain that in both cases those boards should not use their particular powers to advance the cause of one side or the other. Therefore, I found it puzzling that this set of amendments should be tabled—in particular the attempt to decide that Clause 144 should not stand part of the Bill.

With those words, I wait for the Minister’s reply. I do not want to delay the Committee, but I have to say that I was genuinely puzzled by the Labour Front Bench’s decision to put down amendments of this kind and to question Clause 144.

I think that I explained to the noble Baroness earlier today that these are probing amendments. When we received the briefing from ACEVO, we were very concerned, and that is why we tabled the amendments. It is very important for those of us who have been promoting the voluntary sector all these years that we find out what the truth is. They are probing amendments; there is no intention at all to press them, and I said that from the outset. They are to explore the meaning and the effect of the provisions. Sometimes amendments can have unintended consequences. I hope that the noble Baroness will accept that this is not partisan; it is a genuine effort to get some explanation for how this part of the Bill might work.

My Lords, I hesitate to intervene in this debate, but I am prompted by the intervention from the noble Baroness, Lady Williams of Crosby. I speak as someone who is probably some way away from the Labour Front Bench on the subject of competition. I do not start from the same position as my noble friend, but like her I am extremely puzzled about what the Government are trying to do. We may be in the realm of unintended consequences.

We go back to July 2010, when the Government published a White Paper that said that the aim was to make the NHS the largest set of social enterprises in the world. That was the Government’s policy. It is quite difficult to achieve that, I would suggest, without some capacity building—and I was one of the Ministers involved in setting up the Social Enterprise Unit in the department, under the previous Government. The Minister will know about the case of the East Surrey nurses and their attempt to set themselves up as a social enterprise. It is very difficult for people to set up these new forms and organisations without some assistance and capacity building.

Looking at the data, you can see that the voluntary and community sector currently delivers only a tiny proportion of NHS services. The National Audit Office estimated that over 2007-08 PCTs spent less than 0.5 per cent of the NHS budget on commissioning services and support from the voluntary sector. So we are dealing with a minute proportion of the provider side of the NHS when we talk about social enterprises and voluntary organisations. Those sectors cannot grow bigger without some assistance; they have to be given some help; there has to be some investment of resources in capacity building so that they can compete for contracts and provide alternative ways of providing services outside hospital in a community setting. In many parts of the country, they are the big hope for actually producing a set of services which are not based on in-patient care of individuals. We are never going to get to that brave new world without some capacity building. As far as I can see, in their attempt to reassure their coalition partners on the subject of competition the Government may have shot themselves in the foot on this issue.

We need some clarity about what the Government are up to on the subject of the voluntary and social enterprise sectors. Forget the private sector; we need to know how they will grow those sectors, which seems to be their declared aim, without some capacity building and without altering the proportion of services that those sectors provide in the coming years. I would be glad to be reassured by the noble Earl but, as I and ACEVO understand it, the Bill as drafted freezes the proportion. We need to understand from the Minister whether the Government are going to amend it to clarify that position, because it is certainly exercising the outside world.

My Lords, I, too, am extremely concerned about the provisions within the Bill. How are the Government going to implement the policy as stated in it? Is there going to be a general expansion of the health service, so that they can change the proportions of the private and the voluntary sector? I am concerned that, even in the private sector, there is going to need to be innovation and change. Are the Government going to do that on a one-in, one-out basis? Are they going to say that there can be expansion only in those areas of the country where, at the moment, there is no private sector? Are they going to do the same regarding the voluntary sector?

If there is going to be the development of hospices, for example, we know that one key area of concern for the Government is the whole handling of end-of-life care. I think there is unanimity across this House that hospices, Macmillan nurses and so on are probably the best organisations to deal with end-of-life care. I say this through being involved with an NHS trust: the trust would not want to be taking over those areas of responsibility from hospices. Yet this provision may well mean that there can be no development of hospices in this country and that as we discover areas where there is paucity of provision there may not be the opportunity for development, because it may change the proportion. This seems madness.

My Lords, to put completely at rest the mind of the noble Baroness and, indeed, the minds of noble Lords, I assure her that she need have no anxiety. We are coming on to a group of amendments which deal specifically with social enterprise and the voluntary sector. I shall have more to say then, but I want to reassure her at this point.

My Lords, I might have more to say then too. However, we are dealing with what the Bill actually says and with what the Government said at the end of the pause. They said then that the Bill would “outlaw” Ministers arguing for an increase in the size of the three sector providers—public, private or third sector. That means that they want to preserve aspects of the third sector and of the private sector. However, it also means that it freezes in aspic what is there. I do not think that is in the interests of anyone.

I ask the Minister, so that he can perhaps come forward with replies to this in thinking about the next amendment: what is going to happen to the voluntary sector and social enterprise programme that the department currently runs? It was set up to maximise the extent to which third-sector organisations were able to achieve their full potential. There is also the social enterprise investment fund, which provides investment for social enterprises to start up, grow and develop in order to develop NHS services. There are real rumours that this is being finished and that it will not continue into the future.

Might the noble Baroness consider more closely the actual wording of Clause 144? It refers to the Minister not being able to choose a variation for the purpose of choosing that variation; it does not in any way rule out the possibility of choosing that variation for the purpose of providing better provision for patients. It distinguishes between a direct political purpose and the purpose of doing what we all want, which is to provide a better service to patients. A great deal of what has been said in this short debate about the effect on the voluntary sector would therefore not stand up to very close and careful investigation.

My Lords, that is precisely the sort of reassurance and clarity that we are seeking from the Minister. At the moment there is real anxiety out there about this; whether we like it or not, that is the reality, and it is our job to tease out exactly what Ministers mean because they have given different messages about this.

The third area that I ask the Minister to be clear about is the future of the Health and Social Care Volunteering Fund, which is important as a means of supporting volunteering in the National Health Service. All three of those aspects are currently in the Department of Health and I want to see them continue. I would like some reassurance from the Government that they will continue. That would reassure me and, I am sure, people outside that the Government will continue to see the role of the voluntary sector grow in areas where it is most appropriate for it so to do.

My Lords, the amendments take us to the fundamental issue of who should provide healthcare services. The Government are clear that there should continue to be a mixed economy in which the public, independent and voluntary sectors should all have opportunities to contribute in improving outcomes for patients. Our policy is therefore that services should be commissioned from those providers best able to meet the needs of patients and local communities. This is consistent with the previous Government’s policy as set out in principle 1 of the Principles and Rules for Co-operation and Competition, and we believe that it is commissioners who should be free to decide who can best meet patients’ needs and offer value for money for the taxpayer within a regulatory framework that ensures transparency and protects patients’ interests.

Although that has always been the Government’s position, the listening exercise earlier this year highlighted that some people had genuine fears about the Government’s long-term intentions for the NHS. The NHS Future Forum recommended that,

“the government should not seek to increase the role of the private sector as an end in itself”,

and that additional safeguards should be brought forward, so in another place we tabled amendments to the Bill that created the provisions in Clauses 20, 59 and 144. These prevent the NHS Commissioning Board, Monitor and, when he exercises certain functions, the Secretary of State from acting with the intention of varying the market share of any particular type of provider. Removing this provision from Clause 20 and deleting those at Clauses 59, 10 and 144 would leave it open to the NHS Commissioning Board, Monitor and the Secretary of State on exercising the relevant functions to distort the market in favour of, for example, private providers. We do not think that that would be in the best interests of patients or taxpayers. I hope that that has clarified matters.

I am really puzzled by that. What happens in a big swathe of the country if Monitor or the national Commissioning Board considers that there is a 100 per cent public sector monopoly that is actually slowing down the improvement in services? Does that mean that they cannot, as a matter of policy in order to benefit patients, break that 100 per cent monopoly in a certain part of the country that is public and bring in, say, the East Surrey nurses or whoever as a social enterprise to reduce that 100 per cent to, say, 95 per cent? That would change the proportion of services in a chunk of the country, and that is what I understand competition to mean.

My Lords, let me explain. Monitor cannot on its own do anything. It cannot drum up competition from thin air even if it wanted to. We will come to that in a later part of the Bill. The aim of these duties is to prevent national policies which aim explicitly to influence market share. The duty would apply in the same way as it does for secondary care—the noble Baroness, Lady Thornton, asked that question in the context of primary care. The board may take steps which have the effect of increasing market share in order to meet some other purpose—for example, filling a gap in provision—but the board cannot act with the aim or intention of increasing or decreasing the market share of a particular type of provider. That is the distinction. We are clear that there should be an absolute prohibition on Monitor and the board acting with the intention of varying the market share of a particular type of provider.

My noble friend is puzzled and I am too. How will they do that? What mechanism will be used to change the market share?

My point is that either for the board or Monitor to act with a specific view to change the market share for its own sake would run counter to these provisions. However, that does not mean that the market share of the NHS, the independent sector or the voluntary sector could not change. It depends entirely on what is seen to be in the interest of patients. In a particular area of the country, one might find that there was a considerable case for increasing the share of social enterprises in order to meet the needs of patients. That would not be illegal. What would be illegal would be the board setting out with the express intention of expanding a particular sector for the sake of it. That is the distinction here.

My Lords, could the Government never decide that it was important to increase the share of hospices as part of palliative and end-of-life care?

The board and clinical commissioning groups might well decide that it was important to have more hospices. The question would be: who would provide them? It might be that a charity would provide those hospices. That is fine, as long as the justification is that the expansion in market provision is there to meet the needs of patients and that it is not some covert way to boost artificially a particular sector of the market, unrelated to patient needs. That is the distinction.

The concerns that noble Lords have raised, that these clauses would make it illegal for the department to build capacity in the voluntary and social enterprise sectors, are unfounded. This is neither the intention behind these clauses, nor is it their effect. As I have said, we will debate the third sector in the next group of amendments, but I can reassure noble Lords that we will ensure that procurement practices do not unfairly restrict the opportunities for charities, voluntary organisations and social enterprises to offer health and care services. We continue to value and support the many contributions that the voluntary and community sectors play in improving health and well-being for our communities; and there are a number of ways in which we can do that in a tangible fashion. We are already doing this, and the noble Baroness listed a number of the levers that we have at our disposal. I hope that the distinction I have outlined makes sense and that it will therefore reassure noble Lords that the fears they have expressed are groundless.

Can I just be clear that I have understood this? If the national Commissioning Board or the Secretary of State, in pursuance of their duty under the Act to facilitate choice for patients, decided that one important way of expanding such choice was to increase the number of social enterprises and/or voluntary organisations in a particular service sector, would that be permitted under the Act?

It is highly unlikely that that scenario would arise. What could happen is that the board could identify certain services where it felt that competition would serve the interests of patients. Let us take the example of children’s wheelchair services. If that choice offer were created by the board and Monitor created a tariff for those services, it would be up to local commissioners to decide whether to take advantage of that choice offer. There may be instances where that would be a very good thing to do. On the other hand, in other local areas clinical commissioning groups might find that there was no need to create a local market because the services were already adequate. It might be helpful if I write with some detailed examples of how this is expected to work.

The point that I want to emphasise is that the board’s decisions about who will supply particular services could result in one type of provider having a larger market share. That is fine, as long as the intention is to deliver a service that meets the needs of patients in an area. As I say, what is not acceptable is for a conscious decision to be taken to increase the market share of a particular sector just for the sake of it, unrelated to patient need.

My Lords, this has been a useful discussion. This clause takes a bit of reading but its meaning is quite clear and it was explained very carefully by the Minister and my noble friend Lady Williams. However, there is one point that I want to raise. I have an old fashioned, perhaps rather simple, view of legislation. When you read it, you should be able to understand what it means. The bit of this clause that is not good in this respect is new paragraph (b). New paragraph (a) very clearly says that the Secretary of State and these bodies cannot discriminate for ideological, dogmatic or general policy reasons in favour of either the public sector or the private sector. That is clearly there because of the concerns that the whole purpose of this legislation is to discriminate in favour of the private sector, as the Minister has explained very carefully.

However, new paragraph (b), which refers to what the Minister described as charities, voluntary organisations and social enterprises, refers to,

“some other aspect of their status”.

That is not clear and understandable legislation. I suggest that the Minister thinks seriously about coming back at a later stage and replacing those words with a clear explanation of what the Bill is referring to, which appears to be charities, voluntary organisations and social enterprises. If nobody else does so, I shall table an amendment on Report to replace the current wording with those words. However, I would prefer the Government to put into legislation words that ordinary people—or even the sort of extraordinary people who might want to read this legislation when it has been passed—can read and understand, rather than vague words such as,

“some other aspect of their status”.

The Minister’s comments have been most helpful, so far as they have gone. Taking on board the comments made by the noble Lord, Lord Greaves, it will be helpful, when the Minister writes in response to this evening’s debate, to stipulate how the new arrangements will differ from what is currently available to commissioning by PCTs or by other groups. The voluntary sector works very well, by and large, with the current commissioning bodies and finds that it is viewed as good quality and value for money, by and large, though not all the time. The difference in the arrangements needs to be clarified in that letter so that people can really understand if there is a difference and where it is, and also to allay the fears which are quite widespread in the voluntary sector, as was stated so clearly by the noble Baroness, Lady Armstrong.

My Lords, we will come quite soon, I hope, to Part 3 of the Bill, which deals with competition more generally. Much will be revealed at that time, but I can say to my noble friend Lord Greaves that I would be happy, if it would help him, to wrap up the meaning of that particular phrase in the letter which I am going to send on these examples. They are—I ask him to believe me—well chosen words.

My Lords, I thank the Minister for his answer. I wish I could say that I now completely understand everything about these clauses, but I do not think that is true. I will read what the Minister has said and look forward to reading his letter. It may be that what we actually need is to have some discussion with the voluntary sector—with ACEVO, NCVO, the Social Enterprise Coalition—so that we, and they, can be completely clear that this is indeed a benign part of the Bill and is not going to affect their work or their future. If the noble Lord, Lord Greaves, thinks that this wording is a bit difficult, just wait until we get to Part 3. I beg leave to withdraw.

Amendment 136 withdrawn.

Amendment 137

Moved by

137: Clause 20, page 20, line 1, at end insert—

“( ) The Board may take specific action to support the development of the voluntary sector, social enterprises, co-operatives and mutuals as it considers appropriate.”

If the Minister’s words in the last debate mean anything at all, he will accept this amendment. It is as simple as that. It is his lifeboat. In fact, it is the lifeboat that—nothing personal to the Minister—will stop the team of Ministers becoming a laughing stock for the third sector, bearing in mind what was said last year, which we have heard a little bit about, and what is being done in this Bill. It will also stop them taking the Lib Dems for a ride. I heard some of the most profound words in our debates on the Bill uttered by the noble Baroness, Lady Williams of Crosby, at around 3.30 pm this afternoon, when she deeply questioned once again the motives of the endgame of this exercise. That is what she said; it is very profound and she has said it before. They are words that others have also used. What is the endgame of this process? To stop themselves being taken for a ride, the Lib Dems would do well to accept the amendment too. We have heard about creating opportunities and,

“the largest social enterprise sector in the world”.

Last year, the Secretary of State said there was,

“also opportunity because across government we are going to open up to new providers, and the voluntary sector is at the heart of that”.

That is what he actually said, before this Bill was drafted. I know you can get carried away on conference platforms, but as the Minister you are, at the end of the day, responsible. We have probably all done it, but the fact of the matter is that is what was said, and it could be held to be misleading. The amendment, which has come to me via Social Enterprise UK, is a lifeboat. It does not require anything, it says “may”, and it goes to the heart of what the Minister said about not trying to do it for ideological reasons. Clause 20, as drafted, may be used to prohibit any interventions that support the voluntary and social enterprise sectors. The fact that it can be used for that purpose is bad enough in itself and undermines the point which the noble Baroness, Lady Williams of Crosby, made earlier on. It would be a disaster. Therefore, the amendment, which has been looked at by those outside, would be of assistance.

Why do we want the amendment? In the previous debate, we heard the well rehearsed arguments for social enterprise and the voluntary sector providing a greater share of public services. They were the implications of the Secretary of State’s words at the conference last year. They are recognised and proven, and it is a trend that crosses all political parties. That point must be taken on board if the credibility of Ministers is to be maintained. Indeed, all parties in the House and next door support the passage of the Private Member’s Bill tabled by Chris White MP that would open up public service markets and require commissioners to consider how they might promote or improve the economic, social or environmental well-being of their local area through contracts. The parties are supporting that Bill in the other place. Are they kidding anyone or are they being genuine about support for a mixed economy, because this Bill, as drafted, could stop the mixed economy and stop any changes? I am not proposing my amendment for ideological reasons.

There are about 62,000 social enterprises in the UK. They contribute some £24 billion to the UK economy, and they need to be treated seriously, responsibly and as adults. Of these, a third operate in the healthcare sector. By the way, I am reliably informed that Circle is not one of them—whatever might have been put over as spin by the Department of Health. Add to that the vast number of voluntary and community organisations that are providing a huge range of health and social care, and you can see that knocking out their continued development—I repeat, continued development—would be a disaster for the market and most importantly for service users.

If there is to be a competitive market, and I do not argue against that, then it can operate only if there is a fully functioning market. We do not have a fully functioning market at present—it is embryonic. That is the difference and that is the point that did not come across in the Minister’s response to the earlier debate. Healthcare markets in England are, by any definition, in their infancy with regard to supply and demand sides. That must be the case as regards this Government, the previous Government and the one before that. Where both supply and demand sides are underdeveloped, I believe that open competition will result in high barriers to entry, limited choice and compromised quality and outcomes. We have seen a few examples of that in the past few years. A small number of large firms will dominate and there will not be the innovation or value that introducing competition is designed to bring about. There has to be another way of looking at this.

Knowledge barriers, capacity barriers and structural barriers put social enterprises, and voluntary and community groups, at a disadvantage. Knowledge and understanding of the social enterprise and voluntary sectors by the public sector has improved but remains particularly weak in the healthcare sector. Without understanding the sector, commissioning may be designed in such a way that precludes its involvement. It will be all right for the smart lawyers to argue about the way it was done, but the consequences are snuffed out before they start. That is the difficulty we are seeking to overcome.

On capacity, we know that a lot of community-based organisations could play, and currently do play, a huge role in improving healthcare through early intervention, community-level delivery, advocacy and behaviour change, but they lack the capacity to engage with competitive tendering, and alternative approaches specifically designed for them can make a huge difference. The Bill as currently drafted may—I repeat, may—prevent commissioners from feeling that they have the power to do this. That is the point. If we had a fully functioning market, the situation would be slightly different.

Structurally, we know from the central Surrey case—as has been repeated several times—and others that barriers to entry can be set structurally too high for many social enterprises. We are not on a level playing field. Not everyone is a big firm or a multinational. That is not the purpose of the exercise, which is to allow 1,000 flowers to bloom in the interests of the patients. That is what it is about. However, the fact is that the entry level can be set structurally too high for many social enterprises and voluntary organisations that lack the ability to raise the same levels of capital as private organisations but are often better placed when it comes to quality of care. That is the other side of the balance. They reinvest their profits into the organisations, which means that their balance sheets always appear less strong. It is an inevitable consequence but a strength when it comes to service delivery.

The Bill must make provision for the continued development of these groups and certain interventions need to be made; without this we will not see the realisation of a truly plural ambition for these reforms. As has already been said, where would we be without the hospice movement, community drug and alcohol projects, the range of mental health work and so on? The innovation and user-centred services will disappear to the detriment of all. The multinationals do not come with that ethos to start with and what is really wrong with Clause 20 is that it assumes an already existing level playing field where there is an established mixed market. I challenge that assumption which underlines this clause and, although I would not dream of questioning him personally, I challenge the Minister that if he is serious about what he said in answer to the last debate, he must be prepared to come back with something in the Bill which does not snuff out social enterprise in the way that this Bill, currently structured, will do. I beg to move.

My Lords, I speak in support of my noble friend Lord Rooker’s amendment. I pose a couple of questions and add a couple of facts for the Minister. I will not repeat what I said on the previous group of amendments. I speak from two perspectives; first, as a former chairman of a number of voluntary organisations competing for public service contracts; and, secondly, as the former Minister involved in the setting up of entities at the centre to facilitate the growth of social enterprises and voluntary organisations to participate in NHS service provision.

I want to mention some of the things which were set up at the centre because you could not rely on people at local level to actually provide this kind of help to the voluntary and social enterprise sector. Can the Minister say whether these initiatives will continue in this brave new world we are going into? The first one was the Department of Health voluntary sector and social enterprise programme, which was set up to maximise,

“the extent to which third sector organisations are able to achieve their full potential”.

That was a central unit aiming to help people to develop their capacity. There was the social enterprise investment fund, which provides investment to social enterprises to start up, grow and develop in order to deliver NHS services. The third I would mention is the health and social care volunteering fund—both the local and national programmes—which supports volunteering in health and social care.

Those are three areas where an initiative had to be taken well away from the local level to ensure there was some capacity building of social enterprises and voluntary organisations. If those are disbanded in the guise of leaving it up to clinical commissioning groups, it is very difficult to see how those sectors will be able to participate.

Now briefly, I turn to my experiences as a chairman of voluntary organisations. Voluntary organisations simply do not have the capacity to go at risk for entry into new markets without some guarantees. They often do not have the working capital or access to loan facilities because there is no guarantee of the revenue streams that would fund those loans. Unless they happen to have very large reserves, which many do not, they cannot easily enter that market without a big brother to help them over their first steps. I cannot see how we can move in this direction without an amendment of the kind that my noble friend has proposed, and which has backing it some capacity to help these sectors grow when the need arises rather than just leaving it all to clinical commissioning groups.

I hope that the Minister can give us some reassurances about how that capacity-building capability can continue to be preserved and developed because, if it is not, we will see a growing volume of partnerships between the private sector and the voluntary sector, because they have the capacity to borrow money and provide the working capital to help those organisations to play their role in developing services in the NHS.

My Lords, I, too, support the amendment. It is critical that the Government are clear as to how they will support and enable the voluntary and community sector to participate in ways that we know, from experience, are valuable to the National Health Service. In my previous intervention, I mentioned the three parts of the DH which the Minister referred to as levers. It is important that he is clear with the Committee that those parts of the Department of Health will remain, and that the financial contribution put into the fund will continue in order to support the capacity building and the ability of the voluntary sector to put in bids.

The problem is that the Government's rhetoric has not so far been followed through in action. I take, for example, the work programme, which came not from the Department of Health but from the Department for Work and Pensions. Serious commitment was given in the House that significant parts of the work programme would be contracted to the voluntary sector. This simply has not happened. In most of it, the voluntary sector was a very lowly partner. I must say that the organisation I am involved with in the north-east, which is now the largest voluntary organisation in the north-east, is a lowly partner with others in the work programme. We have not signed anything, because we cannot afford to go into it unless we get more than what is left after everyone else has taken their cut, because we are at the bottom, committed to work with only the most disadvantaged, who are therefore the most difficult to get into work. It is six months later, and we are not yet anywhere near agreeing to go in with the other groups. We have to cover our costs.

It is very important that the Government do not follow the same route in the health service. I know that that will be done locally, which the work programme was not, but it is very important. I also have experience through the voluntary organisation on negotiating on detox facilities and facilities for addicts. It has cost us an enormous amount to finally be allowed to provide the service. Because we are providing a unique service and no one else in the National Health Service in the region is following what is called the recovery method, rather than methadone and so on, we have decided that it is worth pursuing that. I must tell the Minister that, were we not such a large organisation, we would struggle. Were we not therefore so prepared to continue to work on it, it simply would not happen. It is vital that the Government give the voluntary sector much more reassurance than they have to date in these areas. Accepting my noble friend’s very good amendment would be one way to do that.

The noble Lord will know that the amendment moved by the noble Lord, Lord Rooker, has in it some very serious considerations about how to build up the voluntary sector and indeed build up the whole relationship of the community to the National Health Service. However, in all fairness, from the very beginning the Minister has talked a great deal about the role of the community and about the way in which the National Health Service can become more open to patients, or more open to those local community forces that can assist it in bringing out the best possible outcome for patients. With respect, it is a little unfair for the Opposition to talk as if that had not happened.

Indeed, if one looks closely at the motivation of the Bill—it is well known that I have considerable reservations about some aspects about it—one of the aspects that I like the most is the quite clear commitment to the idea of the National Health Service being in partnership with local authorities, health and well-being boards, and the healthwatch system and so forth. All of these organisations are new and all are about involving citizens, voluntary organisations and community organisations in the best possible delivery of healthcare. I have to say that the highly centralised control that was exercised in the early stages of the Labour Government, and indeed right up until 2007, really is quite strikingly different from the attempt to decentralise and create partnerships between local authorities, citizens’ groups and the National Health Service itself.

With great respect, the Minister would be quite fair in saying that he has tried to make the point, in almost all the debates that we have had on this issue, of the importance of the voluntary sector and of the community that can protect and help the National Health Service. Although I would readily agree that the noble Lord, Lord Rooker, has made some very important and germane points which should be addressed, I do not want to give the impression abroad that somehow the Government are less keen on the voluntary sector than the Labour Government were in their day.

My Lords, would the noble Baroness accept from me, as someone who was this great centraliser sitting in Richmond House, that we actually set up these capacity-building capabilities for social enterprise in the voluntary sector, in response to those sectors’ concerns about their inability to make headway locally and enter the market to provide services in those areas? That was not a centralising tendency on our part. It was actually a response to people saying to us that we needed more capacity-building capability at the centre because it was not being provided at the local level.

My Lords, I can give an example of where it has been provided. Today I have been talking to the operations director of Peninsula Health Care. That was the provider arm for the Cornwall PCT which was providing community hospitals and community services, and which is now a community interest company as of 1 October 2011. It has already brought across all the arrangements that it has with its local authority; Section 75 and so on, shared budgets for equipment, and all sorts of innovative work alongside.

The whole thrust of the amendment of the noble Lord, Lord Rooker, was part of our manifesto, it was part of the coalition agreement, and I feel quite comfortable about supporting it.

My Lords, I am very sympathetic to the amendment of the noble Lord, Lord Rooker, for very practical reasons. I am building a street at the moment in Tower Hamlets, and part of that street is not only a new school but a new health centre, which has been under development for five years. The health centre proposals were begun in the previous Government’s time in office. It is true that the Bromley-by-Bow Centre, when competing for that practice, was not on a level playing field. It is very difficult to compete with a multinational company that could undercut the price per patient to £75 per head, when I, having run an integrated health centre for 20-odd years, knew that the real costs were probably around £119 per patient and that the £75 per patient was not sustainable. It was very interesting going through the whole of that process, of proper competition and then losing the competition, to three years later, when I was approached by that company which admitted that the business plan did not work and asked whether we could help rescue the situation, which we have now done, and the multinational business has now withdrawn. I know that there is a problem here that we need to get our heads round, and I know and believe that the Government are serious about wanting the social enterprise sector and the voluntary sector to play their full role. It is a practical problem that needs to be got hold of.

The other thing that I know from experience is that bureaucracies like to talk to bureaucracies. I know that large government departments often find it easier to talk to large businesses. Indeed, we have seen this happen over many years. I am in favour of the private sector. We work a lot with the private sector, and I do not think that it is a case of one of the other. However, I have noticed how easily civil servants translate across into large companies, with the bureaucracy carrying on under other names, and organisations that are leaner and more innovative sometimes find it very difficult to break in. Therefore, if the Government are really serious about allowing some of us who do this work but are smaller in scale to break into this market and grow in capacity, then something will need to happen here to help that.

I also know from experience that one way in which we have grown in capacity is by forming relationships with one or two businesses. They have got to know what we are about and we have got to know what they are about, and we have formed partnerships and grown opportunities together. As I mentioned earlier, a £35 million LIFT company has now built 10 health centres. When we formed that relationship, which is a bit like a marriage, we got to know about each other’s worlds. We are now in a social enterprise with that business carrying out landscape work on 26 school sites. Therefore, there are things that government can do.

In my experience, some businesses are becoming more intelligent about this, although some businesses are not. The Government should be using their muscle to encourage businesses to form these local partnerships. If they do not do that, the danger will be that the profits made in poorer communities will be sucked out of the area, rather than there being virtuous circles around the areas creating more jobs and opportunities in local contexts. Therefore, I am sympathetic to the amendment. I would encourage the Government to look again at some of the practical issues and how they work in practice on the ground.

My Lords, for centuries what is now termed the voluntary or charitable sector was the main provider of health services in this country. It is a common view across your Lordships’ House that the sector must be encouraged to play a growing part in the provision of services, partly because it has a track record of innovation, is less inhibited by cumbersome regulations, and perhaps, as I have said on a previous occasion, is a little less risk averse than public bodies tend to be and obviously less motivated by the profit motive than the private sector necessarily has to be.

Surely it is common ground that we want to see a thriving voluntary sector, and I credit the Minister with sharing that aspiration. The trouble is that the Bill does not help him to do that. At best, this clause is neutral in its attitude towards the voluntary sector and, at worst, it will conceivably endanger the realisation of that aspiration. The noble Lord, Lord Greaves, pointed to the curious phrase in paragraph (b), seeking some elucidation, which we may get. However, as it stands, that paragraph could easily be interpreted as referring to the charitable and voluntary sector and as placing that sector at a disadvantage because it would be brought within the scope of the provisions of the clause, which would prevent any positive discrimination—if I might put it in such terms—in favour of that sector. That may not be the intention but it would appear to be very likely to be deemed to be the outcome.

There are already significant inhibitions, as a number of your Lordships have pointed out. The noble Lord, Lord Rooker, referred to the central Surrey experience, where a £9 million performance bond was requested from a social enterprise which clearly was not able to provide it. Incidentally, I contrast that with the financial position of Circle, which had a £45 million pre-tax loss in the year prior to the award of a contract to it and apparently very little relevant experience in running a hospital facility. However, it was awarded a contract. It would be interesting to see what criteria would be applied in future cases of that kind, whether to social enterprises, enterprises purporting to be social enterprises, such as Circle, or other enterprises. Be that as it may, there are clearly considerable difficulties for the social enterprise sector. Social Enterprise UK in its briefing, which no doubt some of your Lordships will have had, points out that the clause could also prevent the continuation of policies such as the Social Enterprise Investment Fund, which helped to support social enterprises in their endeavours.

The noble Baroness, Lady Williams, bravely interposes herself between the raging Opposition and the beleaguered Minister—as he appears to deem himself—but for what purpose I really cannot quite understand. Nobody is doubting his bona fides; the question is whether the legislation reflects his intentions. The very best that can be said of the clause which the amendment of the noble Lord, Lord Rooker, seeks to improve is that it creates a neutral situation. However neutrality, like patriotism, is not enough in this context. If we want to support the sector then we have to recognise the disadvantages with which it starts and not go for a simple level playing field on the assumption that all parties on the field are equal. We have to prepare the ground to assist this particular sector. At the moment, I do not think that the Bill provides for that.

The amendment does not require the board to favour the sector. I might have gone along with it had it done so. It provides the option for the board to assist the sector in making its particular and distinctive contribution to the provision of health services and removes what would be a substantial obstacle to that happening. This clause reflects a positive attitude to a sector that needs that kind of support. I therefore hope that the noble Earl will accept the suggestion made by my noble friend Lady Thornton in the earlier debate and hold some kind of discussion with representative bodies such as ACEVO, which is clearly concerned. The chief executive of ACEVO was a member of the Future Forum and his views should be taken very seriously. There are other organisations, some of them already in the field providing services, which clearly have an interest in this. The hospice movement, which has been referred to, is a very good example. A meeting convened by the Minister would be very helpful in that respect.

Social enterprises are perhaps slightly different from traditional third sector organisations. They are essentially a new form of enterprise in this field and again they ought to be represented at such a discussion. At the very least, I cannot see what the Minister would have to lose by accepting the noble Lord’s amendment. It does not impose a positive requirement. It does not prevent other parties being involved in undertaking work or competing for the provision of services in this area, it merely provides for a third option. If that is consistent with the Minister’s approach I cannot see what the Government have to lose by accepting it. It certainly is no reflection on his intentions, as I am sure the noble Lord would confirm and as I have repeatedly said. I therefore hope that the Minister can respond positively—if not tonight by simply accepting the amendment, which would be the easiest and most preferred course for many of us, then at least by entering into discussion with a view to assessing the degree of difficulty that the sector fears would arise from this provision. We could then see on Report whether we might amend the clause something along the lines of—if not on the actual lines of—what the noble Lord, Lord Rooker, has proposed. That would meet the wishes of all Members of this House to see a thriving sector contributing in that mixed-economy provision to which we all subscribe.

My Lords, I would certainly be willing to help with this. It is one thing to talk to representative bodies: that is fine. However, the Government might find it helpful to talk to individuals who have dealt with the nitty-gritty, practical realities of the situation, and who may have practical insights that could help the Minister with some of these issues. I would be willing to suggest one or two people if that would be helpful.

My Lords, I have had a lot of helpful comments in the debate and very much welcome the chance to reiterate the Government's support for the work of the voluntary and community sectors. The noble Lord, Lord Rooker, is absolutely right; these organisations have a very important role to play both in the provision of support to patients and their families, carers and communities, and increasingly in the provision of services. It is right that the NHS Commissioning Board and clinical commissioning groups should be able to provide funding to support them in this work. The noble Lord suggested that the effect of the Bill would be to snuff out the third sector. I assure him that that is not so.

I will quickly clarify the effect of the duties relating to market share. We want the NHS to operate around the needs of patients. That is why patients’ interests are at the heart of the Bill. Healthcare services should be commissioned on that basis and not on the basis of who is providing the care. This will not prevent a range of work that may go on to support the voluntary sector where it does not directly provide healthcare services. I believe that the Bill goes further than any previous legislation to remove barriers standing in the way of a fair playing field. I do not and will not shy away from our commitment to see a vibrant third-sector market in the NHS.

I will provide a little detail and flesh on the bones. The Bill already provides the board and clinical commissioning groups with the power to make payments through loans and grants to voluntary organisations that provide or arrange for the provision of similar services to those that the board will be responsible for commissioning. This power mirrors the power that the Secretary of State has under Section 64 of the Health Services and Public Health Act 1968, currently exercised by strategic health authorities and primary care trusts. The power would not apply only to service provision. The board and clinical commissioning groups may also want to fund work that will assist in the effective commissioning of services. For instance, the board may provide funding to voluntary organisations with particular expertise in the provision of support to people with rare specialist conditions to guide its approach to commissioning those services. Grants and loans of this sort will support innovation and vibrancy in the health sector and we want to encourage this.

I reassure the noble Lord that we expect that the NHS Commissioning Board and clinical commissioning groups will also continue to uphold the principles set out in the compact. This remains a key agreement between the state and the voluntary sector. Local commissioners should make every effort to engage their voluntary and community partners in discussion on priorities and the allocation of resources, working in a way that is transparent and accountable to local communities. I know that that is already happening at the level of pathfinder CCGs.

The noble Baroness, Lady Armstrong, chided the Government by saying that their rhetoric had not been followed through into action. I say to her that voluntary sector grant schemes are still in place. These are the innovation, excellence and service delivery fund, the strategic partner programme, opportunities for volunteering and the health and social care volunteering fund, under the collective umbrella of the Third Sector Investment Programme. The total value of this for the current year is £25 million. It will continue in 2012-13, which will ensure the continued support of its member organisations to build their capacity and capability to make high-quality and responsive contributions to support health and well-being in our communities. A £1 million financial assistance fund opened on 20 December last for organisations that make a significant contribution to health, public health and social care, but which are most at financial risk. In addition, the department contributed to the Office for Civil Society’s transition fund.

As I say, the department greatly values the voluntary sector’s contribution and our ongoing support for the grant funding programmes through this year recognises the increased role of the sector in helping us renew our efforts to build strong, resilient communities and improve health and well-being outcomes. What I cannot precisely do at the moment is say how much money will be available next year. Decisions about budgets for 2012-13 will be made in due course and we will work within the principles of the compact in making those decisions.

I hope that what I have said has served to reassure the noble Lord, Lord Rooker, that we are serious about this and indeed I hope he will accept from me that nothing in the Bill interferes with our purpose to support this important sector. Our policy is that services should be commissioned from the providers best able to meet the needs of patients and local communities. That is the key. Unfortunately, the wording of his amendment, if taken literally, would run counter to that principle, which is why I am afraid I cannot accept it, but I hope he will find some comfort in what I have said.

Can the Minister say a word or two about the building up of capacity, which seemed a very important element in the amendment tabled by the noble Lord, Lord Rooker, and whether there will be any other method by which the capacity of the voluntary sector could be developed and increased?

I have already outlined a number of funds that are held centrally to enable that to happen. That is happening at the moment. I am pleased to say that we have had very encouraging take-up of those funds. The Social Enterprise Investment Fund has been in place for some time. What I cannot do at the moment is say how much money will be available next year. A lot of these funds will continue in the next year and we will be making announcements in due course. However, we are clear that there is a role for this type of lever to ensure that social enterprises and voluntary sector organisations can be supported in the way that the noble Lord, Lord Warner, indicated was important—and I agree with him.

My Lords, if this was in the Bill, no one would have to take any notice of it at all. That is the reality. I am very grateful to those who have supported my amendment. There will be plenty of people in the sector watching the debate, metaphorically and reading Hansard, who will wonder what on earth we are doing. I realise it suits the Government to have this embarrassing debate on the twilight shift because that is very inconvenient for them. To be honest, I did not hear anything from the Minister that showed that he took on board the central points I made. Notwithstanding his answer to the noble Baroness, Lady Williams, I will test the opinion of the House on this.

Division on Amendment 137 called. Tellers for the Contents were not appointed, so the Division could not proceed.

Amendment 137 disagreed.

Amendments 137A and 137B not moved.

House resumed.

House adjourned at 10.43 pm.