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Health and Social Care Bill

Volume 733: debated on Tuesday 13 December 2011

Committee (12th Day) (Continued)

Clause 71 : Requirements as to procurement, patient choice and competition

Amendments 277D to 278BC not moved.

Clause 71 agreed.

Clause 72 : Requirements under section 71: investigations, declarations and directions

Amendment 278C not moved.

Debate on whether Clause 72 should stand part of the Bill.

My Lords, I wish to draw attention to Clause 72(1)(b), which refers to,

“a power to investigate on its own initiative whether the National Health Service Commissioning Board or a clinical commissioning group has failed to comply with a requirement imposed by virtue of section 71(1)(c)”—

which we discussed earlier, the provision to,

“not engage in anti-competitive behaviour which is against the interests of people who use such services”.

I had understood that the decision not to have competition as one of the main functions of Monitor was a considered political decision, but the more one looks at Clause 71(1)(c), and now at Clause 72(1)(b), the more one realises that this has been got round, effectively, by ensuring that anti-competitiveness becomes a prime responsibility of Monitor.

There are a number of objections to this. The noble Lord, Lord Whitty, put his finger on it, that a good regulator does not also become a policeman in an anti sense to the people he is trying to regulate. There is a deep question as to whether you really want a situation where Monitor can be set against the National Health Service Commissioning Board and the commissioning groups. I am very doubtful that this is a sensible power to give to Monitor.

I know it is regulating the whole group, but if you look at the way Monitor is approaching its tasks, time and again it is going to be reliant on good will and an atmosphere of trust between Monitor, the NHS Commissioning Board and the commissioning groups, and now there is this question of anti-competitiveness. It is not as if nobody else is going to be looking at anti-competitive behaviour of the National Health Service Commissioning Board. The private sector wants to go into this whole area and will be looking very carefully at whether or not it is being given an even playing field. It will be taking, and threatening to take, the Commissioning Board to law—I am not even raising the issue of EU legislation, but just under British legislation.

I do not think it is fair to argue that there is unlimited freedom for the National Health Service Commissioning Board or the commissioning groups to operate in this area, particularly the board. You are really setting yourself up for a very difficult situation. Also, to do it “on its own initiative”—does that mean Monitor would not consult the board or a clinical commissioning group but just suddenly involve itself in an investigation? I would be grateful if the Minister could give some indication of how he sees this in practice.

Will some guidance be given not to develop an adversarial relationship? It is very easy for animosities to start coming in to this area. As I say, it is not as if it is free from legal challenge. Their actions can be challenged. However, for another NHS body to be able to question the judgment of the Commissioning Board that in this particular case it is best not to put something out to competitive tender, or to make a judgment when it has been done because somebody feels that it is anti-competitive, is a really dangerous power. In the wrong circumstances, where Monitor might be chaired by somebody who is getting into a bad relationship with the NHS Commissioning Board chairman, something not totally unknown in these areas, this is a tool which could be used in a destructive and adversarial fashion.

It would be very helpful, for future occasions, to hear from the Minister as to how he thinks this would actually work out in real life.

The noble Lord, Lord Owen, has caught me napping, so to speak, because I was not expecting that intervention. I would be very happy to write to him to set it out, if he will allow.

Clause 72 agreed.

Clause 73 agreed.

Schedule 9 : Requirements under section 71: undertakings

Amendment 278D

Moved by

278D: Schedule 9, page 368, line 12, leave out from “contains” to the end of line 14 and insert “information which it is satisfied is—

(a) commercial information the disclosure of which would, or might, significantly harm the legitimate business interests of the person to whom it relates;(b) information relating to the private affairs of an individual the disclosure of which would, or might, significantly harm that person’s interests.”

Amendment 278D agreed.

Schedule 9, as amended, agreed.

Clause 74 : Guidance

Amendments 278E and 278F not moved.

Clause 74 agreed.

Clause 75 : Mergers involving NHS foundation trusts

Amendment 278G

Moved by

278G: Clause 75, page 98, line 25, at end insert—

“( ) The cases referred to in subsections (2) and (3) shall be (in so far they would not otherwise be) “relevant merger situations” for the purposes of Part 3 of the Enterprise Act 2002.”

My Lords, I shall speak also to Amendment 278H. This is somewhat of a continuation of the debate that we had at the very beginning of the day, and comes back again to the application of EU competition law. However, it also has merit as an amendment which has its own rationale quite apart from avoiding the full rigour of EU competition law.

Under Part 3 of the Enterprise Act, which Clause 75 of the Bill applies to NHS foundation trusts, mergers are normally looked at by the OFT and the Competition Commission. They consider whether the merger would result in anticompetitive outcomes, governed by Sections 35 and 36 of the Act. However, the Secretary of State can intervene under Section 42 of the Act, where he considers that there is one or more relevant public interest consideration specified under Section 58 of the Act. Such considerations are then taken into account in deciding whether the merger should go ahead, even if there are no anticompetitive outcomes.

At the moment, the specified public interest considerations are, broadly, national security; free and accurate news presentation; media plurality and other media issues, which of course have been quite a hot topic of late; and, finally, the stability of the UK financial system. Financial stability was added in 2008 as a result of the banking crisis. It was inserted to avoid competition being the sole relevant issue to prompt intervention in bank mergers.

Competition in the NHS takes place in the context of high complexity, high levels of need and very serious consequences for failure for patients dependent on services if greater turbulence or churn in service providers results. Therefore, it is appropriate to add an additional public interest consideration to reflect these special circumstances. If protection of the public’s money was deemed justification for additional public health intervention, protection of their health service warrants at least the same level of safeguard. This amendment seeks to ensure that competition is not the sole issue where health body mergers, including those involving NHS foundation trusts, are concerned, but that a new public interest consideration—the promotion of a comprehensive health service in England—can be taken into account by the Secretary of State when a merger is proposed.

Amendment 278G seeks to ensure that anticipated mergers, as well as completed mergers, involving NHS foundation trusts are subject to the provisions of Part 3 of the Enterprise Act 2002 in the same way as for other enterprises. Section 42 of the Act, “Intervention by Secretary of State in certain public interest cases”, will apply to such mergers.

I tabled these amendments as the lesser of two evils. They are intended to mitigate the effects of EU competition law. They are also designed to make sure that foundation trust mergers are not subject to the full rigour of domestic competition law. There was a debate in the other place, which I think we are now allowed to call the House of Commons, on what was then Clause 71, as to whether the OFT or the Competition Commission should have any jurisdiction over mergers of foundation trusts. My honourable friend Mr Burstow explained that the OFT would have discretion not to review mergers where patient benefits outweighed any adverse effects on competition. But that is not explicit.

My honourable friend went on to provide an explanation of the impact of the clause for mergers involving NHS foundation trusts. The clause means that we would have a single regime for merger control which would avoid duplication of resources between Monitor and the OFT. It would also address the current situation whereby the Co-operation and Competition Panel formally assesses all mergers involving acute or foundation trusts where the turnover of the combined entity is more than £70 million.

None of that seems to be enshrined in the Bill. I do not know whether guidance is provided but this seems to be something that requires a considerable act of faith on the part of those looking at these prospective merger proposals. I very much hope that the Minister can give greater clarity than was provided in the House of Commons on this matter. In due course, I hope that the advice that he receives or commissions will also deal with the question as to whether it is safe to have provisions such as this applying directly the provisions of the Enterprise Act are going to be safe for the purposes of EU competition law application. I beg to move.

My Lords, I gave notice that I would raise this matter under whether the clause should stand part of the Bill but it is easier and more convenient to do it on this occasion. It is extremely important that this amendment is given serious study by the Government. I hope that either they will produce their own amendment or that the noble Lord, Lord Clement-Jones, will push this on Report to a vote.

Not to have such a provision is ridiculous, particularly in view of what we heard earlier from the noble Lord, Lord Newton, about how long it is taking to conduct mergers between trust hospitals in other areas. It is an ingenious way of doing it. I was trying to work out a way in which it could be done and rather failed. The wording that the noble Lord has come up with is very sensible and I hope that the Government will give it a fair wind. It is all part of the policy of trying to curb this uninhibited competition in every aspect of this Bill.

My Lords, I was recently privileged to be the lead commissioner for the Equality and Human Rights Commission on an inquiry, looking at the human rights of older people in their own homes in need of care and support. This inquiry was a very large one with a lot of evidence, involving 500,000 people in total in this country. We found that half of the people were very happy with the care they received. The other half—250,000 people—were rightly not happy with what had happened. There were awful instances of people being abandoned for 10 or 12 hours, having no social interaction or opportunity to talk or chat. They were left without care for many hours. These are very bad instances of poor care and I really believe that had the staff of the 250,000 people been trained properly in what the tool of human rights can achieve—and if their managers had understood that—a whole lot of these instances of very poor care would not have taken place.

My amendment is designed to ensure some clarity on the application of the Human Rights Act to domiciliary care services commissioned from private and third-sector organisations. This amendment would clarify that providing these services is a public function within the meaning of Section 6(3)(b) of the Human Rights Act 1998. It would bring domiciliary care in line with residential care; similarly, this amendment would confirm that health care services commissioned from private and third-sector organisations fall within the scope of the Human Rights Act. It would clarify the extent of the public sector equality duty because the definition of public function under the Human Rights Act also determines the definition of public function under Section 150(5) of the Equality Act 2010 for the purposes of the public sector equality duty. My amendment also uses wording which is consistent with Schedule 1 to the Health and Social Care Act 2008.

In 2008, Parliament introduced amendments to the Health and Social Care Bill—now the Act—to overturn previous case law and ensure that private and third-sector care homes were defined as carrying out a public function. We were delighted that that applied and that they therefore came under the scope of the Human Rights Act. This received cross-party support and was the result of a long campaign by the EHRC and also the Joint Committee on Human Rights. The campaign aimed to ensure that organisations receiving public money were subject to proper regulation.

We also know that a similar problem is likely to be the case in healthcare if the care is commissioned by the health service to private or third-sector organisations. It is very important to make this clear because the fact that private and third-sector providers operate at the moment outside the scope of the Human Rights Act undermines, or threatens to undermine, the pioneering work of the Department of Health itself in promoting its Dignity in Care campaign. Further, the Health Service Ombudsman has recently documented 10 investigations into NHS care. All of that demonstrates that we need clarity in order to get this right and make sure that people are protected. We must be certain that people are not subjected to breaches of human rights which no one can do much about in the present situation.

I have cut short what I was going to say because it is late, but I do want to say that support for this amendment will clarify beyond doubt the fact that a person commissioned to provide home-based social care or healthcare is, in providing that sort of service, performing a public function within the meaning of the Human Rights Act and the Equality Act. I hope that the Minister will find it possible to support the amendment.

My Lords, I have added my name to Amendment 295G, to which my noble friend Lady Greengross has just spoken, and I strongly support it. As she made clear, it would put an extremely important point beyond doubt. I want briefly to underline three key points.

First, it would remove a major ambiguity about the scope of human rights legislation in relation to health and social care, and with it persisting doubt about the rights of those in receipt of health and social care services. Despite the then Government’s intention that responsibility under the Human Rights Act should follow the outsourcing of state functions, it was generally understood—this was confirmed in the case of YL against Birmingham City Council—that the Human Rights Act covered only residential care provided by local authorities. Private and voluntary organisations that provided care home services under a contract with a local authority were not considered to be performing public functions under the Human Rights Act because there was only a contractual relationship between the parties, and so were not covered. This loophole, as my noble friend Lady Greengross has explained, was closed by Section 145 of the Health and Social Care Act 2008, but only for residential care services. It did not apply to contracted-out social care services provided in people’s homes. The purpose of the amendment is therefore to clarify that the Human Rights Act extends to services provided in people’s homes when provided under contract to a public authority and would remove all ambiguity as to whether the Human Rights Act applies to such services when commissioned from private and voluntary organisations.

As my noble friend has explained, a similar issue arises in relation to health services, especially given the significant increase in the commissioning of NHS services from private and voluntary providers envisaged by the present Bill. Amendment 295G would also place beyond doubt that private and voluntary providers of healthcare services fall within the scope of the Human Rights Act and the public sector equality duty, putting them on a similar footing to providers of residential social care. The amendment would therefore make it clear that those who receive publicly funded health and home care services provided by the private and voluntary sector are guaranteed the same levels of protection and rights to redress as those who receive services provided directly by the state, placing them on the same statutory footing as those who receive residential care services commissioned from the private and voluntary sector.

This is not just a matter of academic importance—the removal of a minor technical anomaly. Quite apart from the fact that it puts beyond doubt that a significant swathe of health and social care provision is within the scope of the Human Rights Act, local authority provision of home care services has been on a downward trend for the past couple of decades, with the result that the state now directly provides only 16 per cent of publicly funded services. This means that 84 per cent of such services are provided by the private and voluntary sector. This figure was less than 5 per cent in 1993. Indeed, the proportion of care delivered by the private and voluntary sector has gone up from 56 per cent to 84 per cent in the last 10 years. This means that the possibility that people in receipt of health and social care services may be deprived of the protection of the Human Rights Act has moved from being an issue at the margins of the field of health and social care to being one of central—indeed, dominating—importance.

A second reason why this is an issue of overriding importance is that we now know that significant numbers of people are the victims of human rights violations on a daily basis. A seemingly endless sequence of reports—from the Health Service Ombudsman, the Care Quality Commission, the Patients Association and the Equality and Human Rights Commission—shows that the rights of older and disabled people in health and social care settings are regularly ignored or wilfully abused. According to the British Institute of Human Rights, these reports reveal how some of the most vulnerable people in our society are treated in inhuman and degrading ways, with neglect and carelessness, and how they experience,

“Lack of privacy, dignity and confidentiality”,

are left without access to food and water, and are bullied and patronised. These incidents are not simply isolated or exceptional cases.

I welcome the statement in the Explanatory Notes to the Bill that contracted-out healthcare services are covered by the Human Rights Act, and the Minister’s assurances in this regard would be equally welcome. But these do not have the force of law. Moreover, the Equality and Human Rights Commission does not believe that case law supports this view. Nor should we have to rely on an elderly or disabled service user having to incur the hazard and expense of going to court to vindicate their rights for us to clarify the law. At all events, it is not the same as having it in black and white in the Bill, so I very much hope that the Minister will respond sympathetically to this important amendment.

My Lords, I strongly support the two very powerful and convincing speeches by the noble Baroness, Lady Greengross, and the noble Lord, Lord Low.

I add only a couple of points. First, it is extremely important for the integration of social care from local authorities with health service healthcare to have a similar regime of rules and standings applying to both. All of us in this House have said repeatedly how much we believe in the integration of these two attempts at providing proper care for older people, chronically ill people and disabled people. It is therefore important that we set a standard which is common between the two. That is the first reason why we should all strongly support the amendment that is before us.

The second reason, from my point of view, is that I very much like the phrases used in the amendment, which state in effect that this kind of service is a public service. It is, in a way, ennobled by the fact that it is a service to the public generally, regardless of whether it is provided by the voluntary, independent or NHS sector. That is also very important.

The third point I briefly make is that it has implications which we have to face up to. There is no time to discuss this tonight. But if we actually want there to be a huge improvement in the relationship between the staff of health service and local authority care organisations, whether voluntary, private or NHS, and the elderly and vulnerable people whom we are talking about—and we do want that—then, as this quite clearly implies, the staff themselves must be treated well. It is no good having profoundly exploited, overused, overcriticised staff and expecting them to live up to the great principles of the Human Rights Act. To my mind the importance of this amendment is not just that it passes. It has clear implications for the training, education, support and attitude towards NHS staff, who too often are heavily criticised for what is a difficult yet often extraordinarily well conducted job. In that spirit I strongly support the amendment of the noble Baroness, Lady Greengross, and the noble Lord, Lord Low.

My Lords, I also support the amendment of the noble Baroness, Lady Greengross. I do so from the perspective of someone who as a special adviser was involved in the framing of the Human Rights Act in 1998. At that time, much of the thinking in the devising of that Act was on the basis that publicly funded services were pretty much synonymous with public delivery of those services. Much of the language around public functions and public authorities was based on that assumption. In fact, that was already out of date at that particular time. Since then, we have never really put this point beyond doubt in legislation. It is timely to do so now, when so many of the services in people’s own homes are contracted out by public bodies to voluntary and private providers. It is a lacuna in the arrangements, despite some of the assurances given by Governments of both persuasions since the Human Rights Act 1998.

I also support Amendment 295G from the noble Baroness, Lady Greengross, replacing the similar amendment from the noble Baroness and the noble Lord, Lord Low, both of whom have argued the case strongly and convincingly on this matter.

The importance of addressing current loopholes in the application of the Human Rights Act to publicly funded healthcare and home care services is underlined by the scale of the legal anomaly that the amendment seeks to address. As we have heard, almost 500,000 older people receive essential care in their own homes provided by the local authority. Some 84 per cent of them lack the protection of the Human Rights Act because their care is provided by private or third sector organisations, or independently by 150,000 self-employed personal assistants who care for people in their homes through the application of personal care budgets or direct payments.

The noble Baroness’s own work in highlighting the inadequacy of at least 50 per cent of the home personal care received by older people as part of her recent inquiry underlined the prevalence of human rights abuses in home care settings. The report makes painful reading for all who want dignified and appropriate standards of care for older people in their homes. The stark reality is that, if their human rights are violated through inappropriate standards of care, they at present have no direct legal redress against their care providers.

Of course, we need to make the caveat that good practice is often exemplified by the private and voluntary sector. As a carer, the care provided by the private sector agency to the person I care for at home is of good quality and the care support workers are committed and dedicated professionals, despite long hours and low pay. Their care for the person that I care for is not covered by the Human Rights Act but would be if he were in residential care. That is a serious anomaly. I hope that the Minister will be able to reassure us that the Government recognise that this is a major problem and will take the opportunity presented in the Bill to address the matter. With an increasing number of people receiving home care from a private or voluntary sector organisation rather than directly from their local authority, there is a vital need for certainty around the application of the Human Rights Act to these care providers.

I was going to comment on four other amendments but none of them was spoken to so I will leave it at that.

My Lords, we have two diverse areas in this particular group. Clause 75 would consolidate the oversight of mergers involving NHS foundation trusts under the UK general merger control regime operated by the Office of Fair Trading’s Competition Commission. That is the area addressed by my noble friend Lord Clement-Jones. We argue that the approach that we are taking here would have a number of benefits.

First, it would eliminate the risk of double jeopardy for NHS foundation trusts. Uncertainty currently exists as to when and where the Enterprise Act 2002 would apply to mergers of activities involving foundation trusts. As a result, under the current arrangements for review of mergers involving foundation trusts by the Co-operation and Competition Panel, there is always potential risk of duplication or double jeopardy by both the OFT and the Co-operation and Competition Panel. The Bill proposes to consolidate oversight of foundation trust mergers under the OFT. It would already seem likely that most mergers between foundation trusts would meet the relevant thresholds, eliminating the uncertainty with the current approach. We therefore sympathise with my noble friend Lord Clement-Jones’s amendment but feel that it would not be required as foundation trusts would be captured.

Secondly, the OFT would provide effective, light-touch regulation regarding mergers. This gives confidence to providers that might be considering a merger and ensures that mergers go ahead where they are in patients’ best interests and that the process is not unduly delayed by bureaucratic approvals or the risk of political interference. The evidence demonstrates that this approach does not result in excessive intervention, as the Enterprise Act sets a high threshold for looking at the merging of activities.

Thirdly, the approach would avoid the duplication of specialist resources between the OFT and Monitor, ensuring better value for money. Mergers are a specialist area. It therefore seems a far better use of resources to maintain the responsibility and expertise within the OFT and the Competition Commission rather than resource a further sector-specific body. However, we appreciate and sympathise with the argument put forward that Monitor, as the dedicated health regulator, will have a valuable contribution to make in the review of foundation trust mergers.

As part of any merger investigation, the OFT and the Competition Commission would engage with Monitor as the sector regulator in order better to understand the services involved. They would obtain Monitor’s view on how a merger would affect services and whether it would bring benefits for patients. The OFT would need to consider whether the benefits of higher quality, a greater choice of goods or services and greater innovation outweighed the negative impacts of mergers. These views would then be considered in the analysis, along with other evidence. We want to work with noble Lords to see how we can ensure that Monitor’s role regarding mergers is adequately reflected in the Bill.

My noble friend Lord Clement-Jones was asking about thresholds. The thresholds for merger reviews are set out in the Enterprise Act. On this basis, the OFT would not generally review mergers involving a turnover of less than £70 million. This contrasts with the approach of the Co-operation and Competition Panel, which operates at significantly lower thresholds.

As my noble friend Lord Howe said in an earlier part of this debate, the operation or otherwise of EU competition law is something that he will take back and consider further in the light of what my noble friend Lord Clement-Jones said. At this stage, therefore, I will not go into that area further, but I refer the noble Lord, Lord Owen, to those discussions and the fruits of those discussions.

We move on to a separate area raised by the noble Baroness, Lady Greengross, and supported by the noble Lord, Lord Low. The issue raised by Amendments 280 and 295G is one in which I know the Equality and Human Rights Commission is keenly interested, and the Government have carefully considered it in the preparation of the Bill. The issue has been raised with us not only by the EHRC but by the Joint Committee on Human Rights. Noble Lords are right: these are extremely important issues.

The department has set out publicly and in detail the reasons for its firm view that private providers are now, and will be in future, exercising public functions when they provide NHS or public health services. The effect of this is that they are bound by the relevant duties in the Human Rights Act and the Equality Act when they provide those services. As the noble Lord, Lord Low, pointed out, these reasons can be found at paragraphs 1534 to 1537 of the Explanatory Notes and in our response to the letter from the Joint Committee on Human Rights to the Secretary of State, which is available on its website.

In summary, our view is based on the following arguments. NHS and public health services will continue to be commissioned by statutory bodies subject to the framework in the 2006 Act. The nature of the services provided will be determined by those commissioning bodies in the exercise of their statutory functions, and is not affected by the status of the provider. The services provided pursuant to those arrangements will be funded by the Secretary of State, the NHS body or the local authority concerned. There will be no contract between the patient and the provider other than where direct payments are concerned. The relevant provisions of the 2006 Act will continue to make no distinction between private and NHS providers.

However, the question is raised of why it is not explicit in the Bill that private providers are exercising public functions. There are three good reasons why not. First, as I explained, the Government consider that the existing legal position is sufficiently clear from the case law and that all providers are now, and will be in future, covered by the Human Rights Act and the Equality Act. This was a long-held public position of the last Government as well and we discussed this in relation to the Equality Act, which the noble Baroness, Lady Thornton, will no doubt remember. Our view is that recent court judgments further support that position.

Secondly, we believe that this position is applied, or presumed to apply, in the NHS at present, and we would not wish to create doubt about the current legal system by introducing a specific provision. Our view was set out in the judicial review proceedings in relation to the transfer of NHS community health services to a social enterprise company, and was the basis for the withdrawal of the claim in those proceedings. Thirdly, the department would not wish to cast doubt on other areas beyond health where public services are provided by private bodies by making express reference in this area. Each time the outcome of a legal test is specified in the legislation it weakens the general applicability of that test. The duties that fall automatically on private providers of NHS services can be and are intended to be supported by mandatory standard terms in NHS commissioning contracts. These terms will assist private providers to meet the obligations imposed on them by legislation.

The noble Baroness raised the issue of social care matters, and when something is funded out of public money, it seems to me that the Equality Act would bear upon that. However, I take very much what she said about exceptions to this. To clarify this further, I would like to write to noble Lords on those issues. In the light of that, perhaps noble Lords would be willing not to press their amendments.

My Lords, I thank the Minister for a totally convincing response. The trouble is that it was a response to an amendment that I did not put, although I could have. The amendment which was responded to would have eliminated the OFT from consideration of FT mergers. My amendment was about inserting an additional ground for consideration by the OFT or the Competition Commission, if it went as far as that, so that the public interest was taken into account, as it is in bank mergers nowadays.

I thought that the Minister’s arguments about why the OFT should be involved were wholly convincing—eliminating double jeopardy with the Co-operation and Competition Panel, providing confidence to providers and so on. Mergers are a specialist area. I am sure that the OFT is great at merger consideration. I deliberately did not put down an amendment about the OFT being eliminated from FT mergers—that was the House of Commons amendment to which I referred in the course of my speech.

The noble Baroness’s assertion that the OFT could ensure that patients’ best interests are looked after is precisely my concern. If ordinary merger principles are followed in terms of the OFT looking at the merging of two foundation trusts, I do not believe that it is in law able to take a very close view of what genuinely is in the public interest in terms of provision of a comprehensive National Health Service. I am delighted that the noble Lord, Lord Owen, thought that that was ingenious. Certainly, it seemed to be the logical way to try to get some sense into these foundation trust mergers. Therefore, I very much hope that—

I do not wish to interrupt my noble friend’s flow. If I have not covered all the areas that he wished to flag up, I will indeed write. However, I made the point that the OFT needed to consider the benefits and the negative sides of mergers in terms of how they would impact on patients. I hope that my noble friend was satisfied at least on that point, even if the leapfrogging and slipping of various amendments from the agenda this evening has tripped me up at this late hour.

My Lords, we could all be tripped up at this late hour, as, indeed, I was earlier. However, it is a question of what it is possible for the body that is judging the merits of a merger in competition terms to take into account. The reason for including the public interest considerations in the amendment was that the OFT would be extremely limited in the patient considerations that it would be able to take into account. The noble Baroness was pretty sanguine about that. There is still further work to be done in that respect and further consideration needs to be given to the matter. It seems to me that, if nothing else, the question of whether one’s local trust and local foundation hospital will survive as entities is of huge importance to local people and is something that needs to be judged properly with their benefit in mind when the time comes.

Unless I divine that my noble friend is going to give me further guidance or inspiration, I beg leave to withdraw the amendment.

Amendment 278G withdrawn.

Clause 75 agreed.

Amendment 278H not moved.

Clause 76 : Reviews by the Competition Commission

Amendments 278J and 278K not moved.

Clause 76 agreed.

Clause 77 agreed.

Clause 78 : Reviews under section 76: considerations relevant to publication

Amendment 278L

Moved by

278L: Clause 78, page 101, line 10, after “considers” insert “would or”

Amendment 278L agreed.

Clause 78, as amended, agreed.

Clause 79 agreed.

Clause 80 : Requirement for health service providers to be licensed

Amendment 279 had been withdrawn from the Marshalled List.

Amendment 279A not moved.

Clause 80 agreed.

Amendment 280 had been retabled as Amendment 295G.

Clause 81 agreed.

Clause 82 : Exemption regulations

Amendment 280A

Moved by

280A: Clause 82, page 102, line 16, leave out first “a” and insert “any”

Amendment 280A agreed.

Amendments 281and 281A not moved.

Amendment 281B

Moved by

281B: Clause 82, page 102, line 41, leave out subsection (8) and insert—

“( ) Where an exemption is granted the Secretary of State—

(a) if the exemption is granted to a prescribed person, must give notice of it to that person, and(b) must publish the exemption.”

Amendment 281B agreed.

Clause 82, as amended, agreed.

Clause 83 : Exemption regulations: supplementary

Amendment 282 not moved.

Clause 83 agreed.

Clause 84 agreed.

Clause 85 : Licensing criteria

Amendment 282ZA

Moved by

282ZA: Clause 85, page 104, line 11, at end insert—

“( ) Such criteria must include the requirement, at regular intervals, for all licensees to supply Monitor with financial information, in the interests of meeting standards of financial stability and probity.”

My Lords, I start by congratulating noble Lords on making it through this day of debate. We are ending the day with this large group on failure, and the smaller group on pre-failure, tabled by my noble friend, in a moment or so.

In the NHS of 20 years ago, the trusts that got into problems were helped, although the help may have been brutal, with chief executives removed or moved on and nasty phone calls to trust chairs. The system gave powers of intervention from the Secretary of State through local strategic bodies, as they became. Financial help was grudgingly provided, usually for a recovery plan, sometimes delivered and sometimes not. The relationships were not defined by legal contract, and NHS contracts could not be enforced in the courts, so there was a system of arbitration within the NHS.

Those days have gone, and we now have an NHS as a network of many sub-organisations, some with linkages through real contracts. With FTs came the idea of a real contract, although in reality, of course, disputes are still sorted out long before reaching a court. We know that services, and even whole organisations, can fail as the impact of demographic, technological and behavioural changes shape our NHS. In reality, we have to deal with trusts that get into severe difficulties and may be technically insolvent, at which point a real organisation may not be allowed to trade. Then we have to accept that a whole trust might need to be shut down. Indeed, how should that be done? How should the continuity of services be maintained, how should the staff be dealt with, and how should the assets, most of which are owned by the state, be dealt with?

We know that this is the tail end of a bigger and important issue of reconfiguration. So how do we ensure that we can adapt services that show poor quality or that need to be delivered in different ways in different settings? Maybe, as with an increasing array of subspecialities, we have to accept regionalisation. Maybe we need network solutions. Is the market the way to do this? In other markets, innovations lead to changes in demand, and the organisations that cannot adapt close down. Is that what we want for our NHS?

Those who might be so inclined might like to wander through the delicate prose of Simon Burns MP in Committee in the Commons. He loves failure. The idea that you have competition is inextricably linked to having failure. It facilitates the market, brings in the innovators and drives out the inefficient. He believes that failure is a measure of market success, not failure.

It is true that in government we introduced a failure regime as we came to realise that, even after all the support and changes of management team, there may be organisations that are simply not viable. However, it is not so much that they were not viable; it is what that means, that continuing to support them is not giving value for the NHS, however much we adjust that value to include non-financial aspects. Indeed, we also wanted to bring out into the light the murky transactions used within the NHS to support organisations, through means such as brokerage loans. The tendency was for bad performers to be bailed out by the good—the opposite of a reforming system. The way NHS accounts were done also had to be changed to make this kind of smoke-and-mirrors accounting more open.

Issues around failure are more likely to operate at service level than at a whole-organisation level. To take a recent example, a well known and respected financial trust is having issues around its 18-week performance. Its general quality is good but it has signalled that it needs help, and it is indeed getting it from a Department of Health team. The question that we need to ask is: would this kind of support be available in the new world? Presumably, it would not; and even if it were, might that help be deemed anticompetitive? Would that good trust be allowed to fail? The link here to reconfiguration is inescapable.

We know and even admit in our rational moments that reconfiguration on a grand scale is what the Nicholson challenge is really about. The need to move services into community settings and to reduce dependency on the district general hospital model is widely recognised. However, we also know that reconfiguration is beset with political problems. In the run-up to the election, about one-third of constituencies had some kind of campaign to keep open a hospital, a surgery or whatever. One felt sometimes that even if there was no threat, one was invented. We had Andrew Lansley and David Cameron claiming that they would prevent any closures. I think that the Government are learning the hard way that promises made in opposition, especially during election campaigns, may turn out to be millstones when the real burden of decision-making passes to them. The examples of broken promises will continue as reconfigurations gather apace.

This is the issue to which our suspicions should be addressed. Is it part of the rationale to put the blame for nasty politically damaging decisions on others? This abdication of responsibility is characterised by the way that Ministers are trying to give away the key roles of the Secretary of State. This is in part a failure of process but is also a failure of leadership. The leadership should be accountable for delivering answers and necessary changes within a reasonable timescale. If we get reconfiguration right, the failure regime would look less necessary. This is far better for patients than the trauma of seeing their local facilities under constant threat or even being closed down. There are examples of where this has been done, and done well—and we need more of them.

In Committee in the Commons, the Conservatives in particular appeared to believe that these unpopular local changes would be less likely under the Bill—if changes in organisations are branded as failures, then those MPs would be well clear of any responsibility. In fact, we have years of evidence because every reconfiguration has to go through a clinical and management review at an early stage—so we know what works and what does not. We could use that evidence, rely on a robust process and stop opportunist politics. However, we know that the market will not bring about these changes any time soon.

In our NHS, the best interests of patients are served by good information that allows early intervention to improve failing services. CQC inspections are also of value in raising the prospect that poor services will be detected early. If you rely on competition, how long does it take for the public to react to the information that a service is bad and for them to choose to go elsewhere, or for that to impact on the finances to the extent that the service is closed down? In our view, using choice and competition to detect and close poor services takes too long and the cost for patients is indeed too high. That is what this suite of amendments aims to tackle.

The amendment sets licensing criteria to ensure that private providers meet standards around financial stability and probity. We need to supply regular financial information for the good providers. This is, in other words, a sort of Southern Cross test. Amendment 249MBA brings into effect the remaining inactivated arrangements for trust special administration from the 2009 Act, as amendments to the 2006 Act. I remember those well. Amendment 353ZZA is a commencement provision for that. Amendment 295 states that health special administrators must exercise their functions to “protect the interests of patients”. As to the Questions that Clauses 125 to 130 stand part of the Bill, this would create a regime for private companies that provide services to the NHS to have special procedures that augment the normal company provisions under the Insolvency Act. It arguably implies that we need stronger protection from the risk of private provider failure. It should be for the commissioners to factor in the risk of using private providers and contract to ensure that arrangements are in place for contingencies. The licensing regime needs to be tough enough to prevent Southern Cross-type failure through active monitoring.

Risk pooling is what the NHS does. We do not need new risk pools, with the costs that they involve. That is why we think that the clauses should be deleted. Clauses 131 to 143 inclusive allow Monitor to set up the regime to provide special administration for both private and public providers to levy charges on providers and commissioners and to manage the finances of a risk pool.

We argue that none of that is required; it just adds extra complexity and cost. Clause 170 is about FTs and failure. The clause removes the ability to deauthorise a foundation trust. We argue that that power should be retained, along with the recognition that some NHS provider trusts may need to be directly managed under the powers of the Secretary of State.

The new clause in Amendment 303ZA makes clear that the initial effort, in the context of failure, should be remedial action rather than going straight for a failure regime. My noble friend has a similar idea behind his amendment. On Amendment 303ZB, the new clause is intended to reinforce and strengthen how reconfiguration is carried out. Under Amendment 303A to Section 65A of the 2006 Act, bodies to which trusts’ special administration regimes apply should remain, so that the special administration regime applies to FTs and NHS trusts.

Again, we are shortening the Bill and making it simpler and probably taking out quite a lot of cost. I beg to move.

My Lords, I have several amendments in this group. I shall start with Amendment 294N, which is a probing amendment. As far as I have understood it, social enterprise bodies which are NHS bodies in all but name are coming into existence. They have evolved from PCTs under the transforming community services programme. They will be subject to special health administration arrangements. I ask the Government to confirm whether the social enterprises that come under the health special administration arrangements are coming under arrangements based on insolvency law and that, as such, that allows assets to be transferred outside the NHS and the redundancy payments are not guaranteed.

Amendment 295CA is intended to ensure that clinical commissioning groups are consulted before the Secretary of State makes regulations that allow Monitor to impose charges on commissioners. The charge imposed can include a levy to fund Monitor’s functions that have to be invoked in the event of failures. Amendment 295CB is intended to ensure that when setting such a levy, Monitor takes into account the impact of the levy on the financial stability of the organisation, especially a financial trust that is already in distress or failing. Amendment 304A requires that the commissioners are considered when the services of a failed financial trust are considered by Monitor and should be involved in the decision as to which should be continued, and that such services must include some continuation of education and training, because in planning for the future workforce, if a whole lot of posts were suddenly lost, it would destabilise the workforce planning. That is in addition to considerations such as the service provision and issues of equity and access. That becomes particularly important because if you do not have the staff with the appropriate training, you cannot, in the long term, provide the service anyway.

Amendment 304B is intended to ensure that commissioners are involved in the board's role in agreeing arrangements to secure continued access to NHS services will be achieved. Will that include the board’s selecting which commissioner would become lead commissioner for the process during a failure?

My Lords, this has been an excellent short debate on a large number of amendments, but focusing on a critical issue, which is what should happen to providers when they get into significant difficulty. While the debate has focused on the role of Monitor, it is the Government’s firm view that commissioners should lead the process of ensuring there are services available to meet the needs of local communities.

The Government brought forward amendments in another place to improve our proposals for ensuring continuity of services. These included removing provisions to apply an insolvency-based approach to foundation trusts in the form of health special administration. If a provider of NHS services becomes unsustainable, there has to be a legal framework that provides effective safeguards to protect patients’ and taxpayers’ interests. We have therefore taken an evolutionary approach in developing proposals to ensure sustainable local services. The Bill sets out a clear framework to achieve this.

We will maintain the existing regime for foundation trusts but we will improve it significantly. First, we have removed the need to de-authorise a foundation trust. This is because the Government are committed to all NHS trusts becoming foundation trusts, so that all NHS providers have the freedom to innovate and drive sustainable improvements in quality and efficiency, and are accountable locally. I am aware that the noble Baroness, Lady Thornton, has tabled amendments which relate to the issue of de-authorisation and we will discuss those when we reach the appropriate clause.

Further, the Government will also ensure taxpayers’ interests would be protected by securing solutions that make best use of available NHS resources. We do not want patients to use, or taxpayers to subsidise, poor quality, inefficient services or providers. Instead we will ensure an end to the culture of hidden bailouts. That is why Clauses 131 to 143 set out provisions for a transparent financing mechanism to fund continuity of services during a period of administration. In addition, I reassure noble Lords that the existing regime for NHS trusts, as distinct from foundation trusts, set out in the 2009 Act, would remain in place. Through a separate health special administration regime, legislation for the first time will also extend equivalent protection to patients who use NHS services provided by a company. Provisions set out in Clauses 125 to 130 would achieve this.

I turn to Amendment 282ZA. The Bill gives Monitor broad powers to collect financial information for the purposes of monitoring providers’ financial stability. Monitor will be gathering a range of information, including financial, to enable it to undertake an ongoing assessment of risk. Monitor would also be able to intervene in order to support a provider to recover and to prevent failure where possible.

I understand that some noble Lords are concerned about the range of interventions available when a provider becomes distressed. Providers themselves can take a range of actions, including improving the management capability and expertise that they have. Commissioners are responsible for securing access to local services and they can use contractual levers to respond to poor performance and prevent provider failure. Monitor would intervene on a provider on the basis of a predefined distress test to prevent failure where possible. The CQC would monitor providers’ compliance against patient safety and quality requirements.

This locally led approach is especially appropriate where there is a pressing need for services to be reconfigured to ensure sustainability. I am sure that noble Lords will agree that a reconfiguration is more likely to succeed if it is based on close partnership working between commissioners, providers, local authorities and their local communities.

Turning to Amendment 303ZA, I strongly agree with the principle of taking proactive steps to address service configurations that may become unsustainable. Indeed, our proposals are specifically designed to strengthen incentives on commissioners and providers to do this. However, I would not support a centralised approach, as envisaged by this amendment, which would move decisions right away from local communities. Our vision is that any changes to services should begin and end with what patients and local communities need. The key to successful service change is ensuring engagement with local communities and stakeholders in order to secure as broad support as possible for what can obviously be difficult decisions. I believe that our proposals will provide an effective and efficient framework that will protect patients’ interests and place a clear responsibility on the provider to turn itself around, with access to support and regulatory interventions where they are needed most.

The noble Baroness, Lady Thornton, questioned the need for a risk pool. In our opinion, the risk pool is an important feature of the continuity of the NHS services framework. It provides a transparent funding mechanism for providers in administration in order to secure essential NHS services. The pool will be funded from risk-based levies on providers and charges on commissioners, and this mechanism will create important incentives on both providers and commissioners of NHS services. Providers of NHS services would be placed under financial incentives to take action to reduce the risk of becoming unsustainable. For example, providers could look to deliver their services in a more efficient configuration. Commissioners would be incentivised to commission services in a way that would reduce the impact on patients of a particular provider becoming unsustainable. This could be achieved, for example, by developing the market to ensure that there were alternative providers of NHS services where possible, and obviously where this would provide value for money.

In contrast, a centrally held fund would effectively be a tax on NHS allocations, and it would fail to strengthen incentives on providers and commissioners. Therefore, we believe that the benefits of a risk pool far outweigh any additional transaction costs.

It is also worth stating that Monitor would be required to run a public consultation on the methodology for the provider levy and publish an impact assessment. This would ensure that Monitor’s proposals were effective and proportionate.

I turn to the amendments of the noble Baroness, Lady Finlay, and shall deal first with Amendment 294N. I should like to clarify for her that health special administration will apply only to companies that are subject to certain licensing conditions. Separately, trust special administration applies to NHS trusts and NHS foundation trusts. Therefore, there are two regimes. When a provider becomes unsustainable, the first concern should be the protection of patients. The amendment risks creating a class of company outside the scope of health special administration which would also not be covered by the trust special administration regime.

The noble Baroness also spoke to Amendment 295CA, and I listened with attention to her. I can now give a commitment that the department will run a full public consultation on the regulations that will provide commissioner charges. This consultation will allow all interested parties the opportunity to contribute to the policy development.

Amendment 295CB is unnecessary, as the Bill already requires Monitor to have regard to the impact that the provider levy will have on providers’ financial sustainability through the duty on Monitor to undertake an impact assessment on anything that it proposes will be likely to have a significant impact on providers.

As regards Amendment 304A, I have already committed to considering education and training, and we will return on Report to clarify this issue.

Perhaps I may ask for clarification. The noble Earl refers to providers all the way through. Can we be completely clear that this means all providers —that is, private sector providers, NHS providers, social enterprises and charity providers of health services? Do all these levies and fines apply to them?

My Lords, when I refer to providers of NHS services, I am referring to NHS providers and non-NHS providers. It is to be determined who will contribute to the levy. That is being worked through and I am sure that the noble Baroness will have noticed from the document that we published the other day that this work is ongoing. We will make further announcements about that in due course.

On Amendment 304B, I say that the board should consult the relevant commissioners but it must make the decision itself, which is what the Bill provides for. The noble Baroness, Lady Finlay, asked whether social enterprises will be within the scope of the health special administration regime. Social enterprises are companies so they will be within the scope of health special administration. It is right that they are not treated as NHS bodies as when assets are transferred from PCTs robust rules apply, as I have set out in detail in previous debates. She asked whether the NHS Commissioning Board would nominate a lead commissioner if a provider becomes unsustainable. The answer is yes.

I hope that noble Lords will find that series of explanations helpful and I ask the noble Baroness, Lady Thornton, to withdraw the amendment.

Before we finish this set of amendments, I want to mention a particular group. I am grateful to the noble Baroness, Lady Thornton, for her intervention, as I want to refer to charitable sector providers who are finding fundraising particularly difficult now. They are beginning to be hit by the downturn in the economy and the downturn in giving, and there is a real risk that some of the charitable sector providers will find themselves in difficulty. If a levy is imposed on them as well, in terms of their registration with Monitor, that may tip them over. My request is that, in looking at all this, there will be separate consideration of the charitable sector providers from other providers.

I thank noble Lords. I will take only a moment, but we will need to return to this. First, this was not looked at properly in the Commons and I can see that that is the case. Secondly, I recall that the chief executive David Nicholson disagrees. He said that he advocates de-authorisation. I believe that the pooling and the levy are bureaucratic and expensive and that the noble Earl does not understand that reconfigurations will not be led locally. I do not think that the Bill adequately approaches how we will manage reconfigurations. To be kind one has to say that the work is ongoing; I am not quite saying that the department and the Bill team are making this up as they go along, but it is definitely an area to which we will need to return on Report. I beg leave to withdraw the amendment.

Amendment 282ZA withdrawn.

Amendments 282ZB and 282ZC not moved.

Clauses 85 agreed.

Clauses 86 and 87 agreed.

Clause 88 : Revocation of Licence

Amendment 282A not moved.

Clause 88 agreed.

Clauses 89 to 92 agreed.

Clause 93 : Standard conditions

Amendments 282B to 284 not moved.

Amendments 284A to 284C

Moved by

284A: Clause 93, page 107, line 13, leave out “National Health Service Commissioning Board” and insert “NHS Commissioning Board Authority”

284B: Clause 93, page 107, line 14, leave out “clinical commissioning group” and insert “Primary Care Trust”

284C: Clause 93, page 107, line 15, leave out “and its Healthwatch England committee”

Amendments 284A to 284C agreed.

Amendments 285 and 285ZA not moved.

Amendment 285A

Moved by

285A: Clause 93, page 107, line 22, at end insert—

“( ) If, at the time Monitor discharges the function under subsection (7), the day specified by the Secretary of State for the purposes of section 14A of the National Health Service Act 2006 has passed or section 6 or 178 has come into force—

(a) in the case of section 14A of the National Health Service Act 2006, the reference in subsection (8)(c) to every Primary Care Trust is to be read as a reference to every clinical commissioning group;(b) in the case of section 6, the reference in subsection (8)(b) to the NHS Commissioning Board Authority is to be read as a reference to the National Health Service Commissioning Board;(c) in the case of section 178, the reference in subsection (8)(d) to the Care Quality Commission is to be read as including a reference to its HealthWatch England committee.”

Amendment 285A agreed.

Clause 93, as amended, agreed.

Clause 94 : Special conditions

Amendment 286 not moved.

Clause 94 agreed.

Clause 95 : Limits on Monitor’s functions to set or modify licence conditions

Amendments 286ZA and 286A not moved.

Amendment 286B

Moved by

286B: Clause 95, page 108, line 21, at end insert “provided for the purposes of the NHS”

Amendment 286B agreed.

Amendments 287 to 287ZB not moved.

Clause 95, as amended, agreed.

Clause 96 : Conditions: supplementary

Amendments 287A to 287BA not moved.

Amendments 287C and 287D

Moved by

287C: Clause 96, page 109, line 38, after “NHS” insert “in order to ensure the continued provision of one or more of the health care services that the licence holder provides for those purposes”

287D: Clause 96, page 109, line 40, at end insert “in order to ensure the continued provision of one or more of the health care services that the licence holder provides for those purposes”

Amendments 287C and 287D agreed.

Amendments 287E to 287EB not moved.

Clause 96, as amended, agreed.

Clause 97 : Conditions relating to the continuation of the provision of services etc.

Amendment 287F not moved.

Clause 97 agreed.

Clause 98 : Modification of standard conditions

Amendments 288 to 288ZB not moved.

Clause 98 agreed.

Clause 99 agreed.

Schedule 10 : References by Monitor to the Competition Commission

Amendments 288A to 288C

Moved by

288A: Schedule 10, page 372, line 26, after “are” insert “not”

288B: Schedule 10, page 373, line 26, after “considers” insert “would or”

288C: Schedule 10, page 373, line 29, after “considers” insert “would or”

Amendments 288A to 288C agreed.

Schedule 10, as amended, agreed.

Clause 100 agreed.

Clause 101 : Standard condition as to transparency of certain criteria

Amendment 288D

Moved by

288D: Clause 101, page 115, line 10, at end insert “or the conditions of a particular licence”

Amendment 288D agreed.

Clause 101, as amended, agreed.

Clause 102 agreed.

Clause 103 : Discretionary requirements

Amendment 288DZA not moved.

Clause 103 agreed.

Clause 104 : Enforcement undertakings

Amendment 288DA not moved.

Clause 104 agreed.

Clause 105 agreed.

Schedule 11 : Further provision about enforcement powers

Amendment 288E

Moved by

288E: Schedule 11, page 378, line 35, leave out from “contains” to the end of line 37 and insert “information which it is satisfied is—

(a) commercial information the disclosure of which would, or might, significantly harm the legitimate business interests of the person to whom it relates;(b) information relating to the private affairs of an individual the disclosure of which would, or might, significantly harm that person’s interests.”

Amendment 288E agreed.

Schedule 11, as amended, agreed.

Clause 106 : Guidance as to use of enforcement powers

Amendment 288EA not moved.

Clause 106 agreed.

Clause 107 : Publication of enforcement action

Amendment 288F

Moved by

288F: Clause 107, page 118, line 5, leave out from “include” to the end of line 7 and insert “information which it is satisfied is—

(a) commercial information the disclosure of which would, or might, significantly harm the legitimate business interests of the person to whom it relates;(b) information relating to the private affairs of an individual the disclosure of which would, or might, significantly harm that person’s interests.”

Amendment 288F agreed.

Clause 107, as amended, agreed.

Clause 108 agreed.

Clause 109 : Imposition of licence conditions on NHS foundation trusts

Amendments 288G and 288GA not moved.

Clause 109 agreed.

Clauses 110 to 112 agreed.

Clause 113 : Price payable by commissioners for NHS services

Amendment 288H not moved.

Clause 113 agreed.

Clause 114 : The national tariff

Amendments 288J to 291C not moved.

Amendment 292 had been withdrawn from the Marshalled List.

Amendments 292ZA to 292A not moved.

Clause 114 agreed.

Clause 115 : The national tariff: further provision

Amendments 293 and 294 not moved.

Amendment 294A

Moved by

294A: Clause 115, page 124, line 14, leave out subsection (4)

Amendment 294A agreed.

Amendment 294AZA not moved.

Amendment 294AZB

Tabled by

294AZB: Clause 115, page 124, line 28, at end insert—

“(5A) Where the commissioner of a health service receives an offer from a service provider licenced under section 80 at a price below the price that is payable by virtue of this Chapter, the commissioner shall seek the agreement of Monitor before placing any order for this service.

(5B) Before acceding to a request from a commissioner in accordance with subsection (5A), Monitor shall satisfy itself that—

(a) the quality of the service to be provided will not be inferior to the same service provided by another supplier at the price payable by virtue of this Chapter, and(b) there will be no consequent unacceptable impact on the structure or capabilities of the NHS.(5C) Subject to the considerations under subsection (5B), Monitor shall not unreasonably withhold its consent.”

My Lords, I had intended to move this, and to take the opportunity to respond to one or two points that the Minister made on my proposal on competitive pricing, but in view of the lateness of the hour I will find another opportunity to pursue the argument with him.

Amendment 294AZB not moved.

Clause 115, as amended, agreed.

Clause 116 : Consultation on proposals for the national tariff

Amendment 294AA not moved.

Amendment 294B

Moved by

294B: Clause 116, page 125, line 26, leave out “guidance” and insert “such guidance as Monitor proposes to provide for in the national tariff”

Amendment 294B agreed.

Clause 116, as amended, agreed.

Clause 117 : Consultation: further provision

Amendment 294BZA not moved.

Clause 117 agreed.

Clause 118 : Responses to consultation

Amendments 294BA to 294BC not moved.

Clause 118 agreed.

Schedule 12 : Procedure on references under section 118

Amendments 294C to 294H

Moved by

294C: Schedule 12, page 380, line 5, leave out from “each” to end of line 6 and insert “objector”

294D: Schedule 12, page 380, line 7, at end insert—

“( ) In this Schedule, “objector” means—

(a) in relation to a reference made where the condition in section 118(2)(a) is not met, each clinical commissioning group who objected to the proposed method to which the reference relates, and(b) in relation to a reference made where the condition in section 118(2)(b) or (c) is not met, each licence holder who objected to that proposed method.”

294E: Schedule 12, page 382, line 8, at end insert—

“( ) The Competition Commission must give notice to each objector who has made representations in accordance with paragraph 2 of the time and place at which an oral hearing is to be held.”

294F: Schedule 12, page 382, line 22, leave out “entitled to give evidence at the hearing” and insert “present at the hearing and comes within sub-paragraph (5)”

294G: Schedule 12, page 382, line 24, leave out second “is not” and insert “cannot be”

294H: Schedule 12, page 382, line 26, leave out from “not” to “, and” in line 27 and insert “obliged to require the person to attend the hearing”

Amendments 294C to 294H agreed.

Schedule 12, as amended, agreed.

Clause 119 : Determination on reference under section 118

Amendments 294J and 294K

Moved by

294J: Clause 119, page 128, line 4, after “by” insert “clinical commissioning groups or”

294K: Clause 119, page 128, line 38, after “such” insert “clinical commissioning groups or”

Amendments 294J and 294K agreed.

Clause 119, as amended, agreed.

Clause 120 agreed.

Clause 121 : Power to veto changes proposed under section 120

Amendment 294L

Moved by

294L: Clause 121, page 129, line 28, after “are” insert “not”

Amendment 294L agreed.

Clause 121, as amended, agreed.

Clause 122 : Local modifications of prices: agreements

Amendments 294LA to 294M not moved.

Clause 122 agreed.

Clause 123 : Local modifications of prices: applications

Amendments 294MA and 294MB not moved.

Clause 123 agreed.

Clause 124 agreed.

Amendment 294MBA not moved.

Clause 125 : Health special administration orders

Amendments 294N and 295 not moved.

Clause 125 agreed.

Clause 126 agreed.

Clause 127 : Health special administration regulations

Amendment 295A

Moved by

295A: Clause 127, page 134, line 46, at end insert “or (b)”

Amendment 295A agreed.

Clause 127, as amended, agreed.

Clauses 128 to 130 agreed.

Amendment 295AA

Moved by

295AA: After Clause 130, insert the following new Clause—

“Prior actions to health special administration orders

(1) Monitor shall produce annually a report to the National Commissioning Board setting out those trusts and their associated health economies where it considers that, on the evidence available, trusts are at serious risk of Monitor seeking a health special administration order unless urgent action is taken to review existing services and agree reconfiguration of those services to ensure their clinical and financial sustainability and this report shall be made available promptly to the Secretary of State, Parliament and the relevant clinical commissioning groups and health and wellbeing boards.

(2) It shall be the responsibility of the National Commissioning Board, in consultation with the relevant clinical commissioning groups and health and wellbeing boards, to establish a mechanism for producing a response to Monitor within six months of the annual report’s publication on how the services in specified areas can be made clinically and financially sustainable and the extent to which these proposals are agreed by local organisations on behalf of the public.

(3) It shall be for Monitor to decide whether the Board’s response is adequate to secure clinical and financial sustainability in particular areas and, after informing the Secretary of State, to publish its decisions on proposed changes and should the Secretary of State decline to accept Monitor’s decision in a particular case he or she should inform Parliament with his or her reasons, together with his or her alternative proposals for securing clinical and financial sustainability in the particular health economy.

(4) It shall be open to Monitor, by agreement with the Secretary of State and the National Commissioning Board, to establish a panel of independent people with appropriate expertise to assist with securing local agreement on the reconfiguration of services required to secure clinical and financial sustainability.”

My Lords, I rise to a rapt audience to move Amendment 295AA, which will really test the concentration powers of your Lordships’ House. The amendment would insert a new clause on actions that could be taken to reconfigure services in the interests of sustainability before the Bill’s failure regime kicks in. It follows on from the previous group of amendments spoken to, in particular, by my noble friend Lady Thornton.

I had one go at this issue at an earlier stage in our discussions and did not get very far. I have now discussed this issue further with a range of opinion inside and outside your Lordships’ House. This amendment, which has the support of the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy, is the product of a continuing interest in this issue. There is now widespread recognition across the NHS that there has to be a major reconfiguration of services to make them more fit for purpose, more clinically sustainable and more financially sustainable, given the financial and demographic challenges faced by the NHS for the foreseeable future. In a nutshell, specialist services need to be reconfigured on fewer sites, and many district general hospitals have to be reshaped on their sites with a different kind of health and healthcare campus and more social care services alongside them. Far more services need to be delivered in a community, rather than in a hospital, setting.

As was borne out in the discussion on the last group of amendments, the Government seem to be placing a great—and, I would say, undue—faith in local commissioners facing up to this reality and delivering the necessary changes. Meanwhile, MPs, including Cabinet Ministers, continue to march with placards in front of their local hospitals, opposing change and trying to protect their parliamentary majorities. They fear being “Kidderminstered” as majorities and the number of seats shrink. It will only get worse as 2015 approaches.

Much sensible opinion in the NHS simply does not believe that local areas and commissioners can deliver the scale of change required on an unaided basis. It fears that people will stand on the burning platform until failure engulfs them or a cheque arrives. The Government have said that the cheque is not going to arrive, so they are going to stand on the burning platform, as I see it, until the failure regime kicks in. Monitor does not want to be placed in a position where it is endlessly using the failure regime. It will want to intervene when the warning signs are there, rather than waiting for the special administration system to be required. Despite the Secretary of State’s promises of robust decision-making on service reconfiguration, there is little experienced NHS opinion that believes that the elected political class will take the tough decisions fast enough and in sufficient numbers to produce a more orderly reconfiguration of NHS services.

I asked the Secretary of State following one of his robust public utterances at a conference whether he had actually told his Cabinet colleagues how robust he was going to be. The example of Chase Farm continues to affect NHS opinion and behaviour. People want a more reliable pre-failure regime that can be triggered in a timely way that does not totally rely on local commissioners to take action on their own and that imposes some discipline on the elected political class—if I may so describe them—to take decisions in a timely way. That is what Amendment 295AA attempts to do.

Subsection (1) requires Monitor to report annually to the national Commissioning Board those trusts and their associated health economies that are in real danger of clinical and financial unsustainability that will trigger the special administration regime. This report would put everybody from the Secretary of State to the local clinical commissioning groups on notice that action needs to be taken.

Under Subsection (2), it would then be for the national Commissioning Board to gather everybody together locally and agree a mechanism for producing a response within six months of service reconfigurations that would achieve financial and clinical sustainability.

Subsection (3) gives Monitor the decision on whether the solutions proposed are adequate, and if so, to inform the Secretary of State accordingly. The Secretary of State is not cut out of the loop. The Secretary of State could decline to accept Monitor’s decision, but in doing so he or she would have to inform Parliament of their reasons for rejecting it and publish alternative proposals to secure,

“clinical and financial sustainability in the particular health economy”

concerned. To aid this process, subsection (4) enables Monitor,

“by agreement with the Secretary of State and the National Commissioning Board to establish a panel of independent people with expertise”,

to help local area commissioning groups with the necessary reconfiguration of services.

No one under this amendment is cutting out the people at the local level and no one is cutting out the Secretary of State. We are just introducing a bit more discipline into this particular process, one in which it has proved very difficult to achieve change. I hope that the Minister will take this amendment in the spirit with which it is offered. It is there to respond to a widespread concern that we need a better and clearer pre-failure regime that can be used to bring about a more speedy reconfiguration of services in the interests of clinical and financial sustainability, but that also preserves local involvement with expert external facilitation and keeps the Secretary of State involved, albeit with disincentives to political deferment of decisions. The challenges that the NHS faces over the rest of this decade make this an issue that we should address urgently, and in my view we should have something on the face of the Bill to help the NHS engineer the reconfiguration of services that it will so badly need in the coming years. I beg to move.

My Lords, at this late hour I will keep the Committee only for a moment or two. I congratulate the noble Lord, Lord Warner, on a courageous, statesmanlike and important amendment. We all believe that there have to be huge changes in the NHS, those of us who support it very strongly just as much as those who are critical of it. The noble Lord has thoughtfully tried to produce a machinery of government that will enable some of these extremely difficult decisions to be made. Perhaps I may say without, I hope, offending anybody, that there are echoes here of what happened to the Governments of Greece and Italy—flatly refusing to look at the realities, refusing to change, and ending up with effectively a total loss of trust in the democratic system. I believe that this amendment is an attempt to try to get away from that and to begin to mobilise a much larger section of the public for the changes that have to be made. That can be done only through open debate and the willingness of politicians to get up and express the need for change and their support for it, not by hiding away and doing the popular thing when that is almost certain to bring about the destruction of the remaining health services in any effective way.

I congratulate the noble Lord and say that he is brave to have done this, and to point out rather harshly that we all have to learn that we cannot at one and the same time take part in Chase Farm demonstrations and Chase Farm decisions. What that means is that, inescapably, the Secretary of State has to be at the centre of this operation, unpleasant though it is, because—as most of those who have been in Government know—either you have to take unpleasant decisions or you have to resign. What you cannot do is dodge the issue by saying, “It is nothing to do with me”, because in the end that will not carry the public with you. It is the public we need to mobilise behind us.

My Lords, I have added my name to this amendment because it fills in the hole in this Bill that I am still worried about. Clauses 95 and 96 contain good ways of intervening early in individual failures on quality and the financial governance of providers that will enable Monitor to get in and do the business it needs to do with individuals, but what we have not got are the mechanisms that will allow Monitor to address at an early stage failures that can be seen coming up in a local health economy.

I have already experienced in the current regime how difficult it is for a regulator to get discussions going locally between trusts and local commissioners on how to address a local service failure. I well remember the whole of the Monitor board going down to the south-west—the trust will remain nameless—to address a failure of the local economy, to discuss it with the strategic health authority and to attempt to come to a conclusion and come up with a plan about how the local economy would solve the problem. The Minister has already mentioned bailouts. The solution was that the strategic health authority would give a bung, which it duly did and which sent the problem away. But in fact the problem did not go away because the local economy was still failing.

It is this early failure—where you can see that things are mounting up, that it is not going to work and that the sums are not going to add up—for which we need some mechanism. This is a clever scheme, but it may be too interventionist. It may be put into blocks which are too chunky to be inserted into the Bill as it is. But we need to address the problem of failure before it gets to the point of administration. As the noble Lord, Lord Warner, says, Monitor will not want to implement the failure regime and the administration regime until things have gone desperately awry. It should not implement the failure regime when the problem is an economy problem and not a trust problem. We need to have some reassurance that there will be some support for local people who are trying to tackle this in a meaningful way.

My Lords, I do not want to hold up the House for too long, but I feel that someone should respond to my noble friend Lord Warner’s amendment on behalf of what he rather dismissively described as the elected political class. I am proud to say that I was a member of that elected political class for 23 years, representing Grantham and Stamford. In the course of those 23 years I had to take action to save both Grantham hospital and Stamford Hospital, separately and at different times, when they were threatened with closure. I used all the methods which my noble friend is no doubt familiar with: meetings with Ministers, lining up local government support, petitions, threatening judicial reviews—even potentially funding a judicial review—and heading major marches. I remember leading over 9,000 people through the streets of Grantham and 5,000 through the streets of Stamford. We won in both cases. Grantham is still a very successful local district hospital and Stamford is a smaller hospital—what you might call a cottage hospital.

The point I wanted to make is this: I would have welcomed the sort of report from Monitor which my noble friend is suggesting. If one wants to save one’s local hospital, and one wants to make sure that the right decisions are made about the health of one’s constituents, one wants a warning as early as possible about the financial or clinical problems—or both—that may be arising. There are often all sorts of alternatives that one can find to closure. It is important for democratic confidence in the NHS that all the possibilities are thoroughly explored and everybody is content that the decision has not simply been taken behind closed doors and then announced to the public when there could have been some initiative that might have saved the day. On behalf of the—slightly dismissed—elected political class, I thoroughly support the amendment of my noble friend.

I have a very small piece of advice to give the Minister. I always think that it is best to give in and agree with my noble friend Lord Warner. I have almost always found that this is the best course of action. The noble Earl might recall that, when I was a Minister, on one of the occasions where I did not give in I certainly came a cropper. I urge the Minister to think very carefully and seriously about what my noble friend has had to say. It merits great attention and it merits being in the Bill.

My Lords, before that intervention I was about to say that I was very pleased that the noble Lord, Lord Warner, had returned us to this issue, which I, like he, regard as extremely important. It is a thoughtful amendment and will certainly prompt further thought on my part after this debate.

I do not think that there is any difference between the noble Lord and myself in this respect. I am certainly all in favour of ensuring that wherever possible there is early intervention and proactive monitoring of organisations well in advance of failure so that failure can be averted. The main difference between us, if there is one, is that we believe that this process should be locally led and not led from the centre, which is how I read his amendment. I probably read it wrongly. When the noble Lord spoke to it, he indicated that nothing in it was intended to run counter to that locally led process. I take that on board.

Why are we so keen on a locally led process? The overall aims that we set out are to put patients, carers and local communities at the heart of the NHS, shifting decision-making as close as possible to individual patients and devolving power to professionals and providers, liberating them from top-down control. This amendment would appear to do the opposite and could lead to an increasing level of decisions being centralised and moved away from local communities and their democratic representatives. The more that one does that, the less likely one is to get local buy-in. In a patient-led NHS, if it is to be worthy of the name, any changes to services have to begin and end with what patients and local communities need.

Does not the experience of the last few years—we can name the hospitals concerned—show exactly the opposite of what the noble Earl is now saying to us, that this has to be locally led? We have to find some mechanism which allows decisions to be taken that does not dismiss or ignore local feelings. Of course people have to be involved in those decisions but, at the end of the day, we know about Chase Farm and several hospitals I could name. In north London, we know that we have too many hospitals. They have not been closed down because it is politically too difficult to do so. If the decision remains at local level, in north London we will still have too many hospitals. I have lots of MP friends who have campaigned to keep those hospitals in place, particularly before the last general election. It seems that what the noble Earl is outlining now will not work.

Contrary to popular opinion, there have been cases of very successful and rapid reconfigurations of services. Of course, the ones that come to our attention are those that have taken a long time, such as Chase Farm. There is no better or worse example than that.

In reading this amendment, we should be cautious about any process that would significantly weaken both local commissioner autonomy and public engagement. We do not want to conflict with the statutory requirement for NHS bodies to ensure appropriate and proportionate involvement of patients and the public in service changes or reduce the ability for local authority scrutiny to bring effective democratic challenge to reconfiguration plans. I certainly do not think there is a case to reduce democratic accountability in this way.

I agree with the noble Lord that, where it is not possible to reach local agreement on a service change proposal, there should be mechanisms for independent review. We are retaining powers in the Bill for local authority scrutiny functions to be able to refer reconfiguration schemes. As part of the transition, we are also exploring how the NHS Commissioning Board and Monitor can work together to support commissioners and providers. As I have said, the key to successful service change is ensuring engagement with the local community and stakeholders so as to secure as broad support as possible in what can be very difficult decisions.

It might be asked, and I think that the noble Baroness implied this in her question, how reconfiguration will be triggered under the new system. As we envisage it, the trigger under the new system will be the same as under the current one. The trigger is often that commissioners and providers determine that the current configuration of services does not offer the highest quality care or that they do not meet with current and modern clinical practice. For example, it may be that part of the hospital estate is outdated. There may also be safety issues, especially if a trust has struggled to recruit particular clinical staff.

It is usually the dialogue between commissioners and providers that identifies that services are not currently optimal for patients and that a reconfiguration, rather than smaller-scale operational changes, is the most appropriate way to improve and modernise services. In those circumstances, commissioners will want to take an active lead in shaping how services are redesigned, working with their provider partners. I do not see that as necessarily a long drawn-out process or one that would happen at the last minute. Commissioners are in a very good place to assess these matters well in advance of stress becoming a significant problem. I believe that our proposals will enable local clinical commissioners to deliver sustainable services and allow intervention to prevent failure, where possible and with appropriate support and advice.

Mindful of the time, I hope that that is helpful. I undertake to engage with the noble Lord following this debate to see what more we might be able to do to reassure him. He presented a cogent case; I understand the arguments that he is putting and the reasons for them. I would like to end in the same place as him and provide the Committee with more certainty on these issues. I hope that with the assurance that my ear, as ever, is listening, he will be content for now to withdraw his amendment.

My Lords, I am grateful to everyone who has spoken in this debate for the support that the thrust of the amendment has received. I reassure the Minister that it is not the purpose of the amendment to exclude local commissioners or local people from involvement in reshaping their services. They would feature in the report to the national Commissioning Board mentioned in the amendment only if they were clearly not getting on with the job of making changes. If they were getting on with that job, fine—they would not feature in the report.

I think that we struggle with the situation that the noble Baroness, Lady Murphy, mentioned, that you cannot solve the problem of a particular hospital trust without looking at the problems around the much wider health economy. Often, the local clinical commissioning groups will struggle with the breadth of the economy that they have to consider.

I do not want to delay the House any further. I will certainly take up the Minister’s offer of discussions and I would welcome any contributions from other noble Lords. We need to make progress on this issue before we complete the Bill’s consideration in this House. Meanwhile, I beg leave to withdraw the amendment.

Amendment 295AA withdrawn.

Clause 131 : Duty to establish mechanisms for providing financial assistance

Amendment 295B

Moved by

295B: Clause 131, page 136, line 40, after “provider” insert “of health care services for the purposes of the NHS (referred to in this Chapter as “a provider”)”

Amendment 295B agreed.

Clause 131, as amended, agreed.

Clauses 132 to 134 agreed.

Clause 135 : Power to impose charges on commissioners

Amendment 295C

Moved by

295C: Clause 135, page 139, line 44, at end insert “(but for this not to affect any other method of recovery)”

Amendment 295C agreed.

Amendment 295CA not moved.

Clause 135, as amended, agreed.

Clause 136 : Imposition of levy

Amendment 295CB not moved.

Clause 136 agreed.

Clause 137 agreed.

Clause 138 : Consultation

Amendments 295D to 295EA

Moved by

295D: Clause 138, page 141, line 6, leave out second “that” and insert “the current financial year”

295DA: Clause 138, page 141, line 19, after “each” insert “potentially liable”

295E: Clause 138, page 141, line 25, leave out “the rate of levy” and insert “those factors”

295EA: Clause 138, page 141, line 34, at end insert—

“( ) In this section and section 139 a “potentially liable provider” means a provider on whom Monitor is proposing to impose the levy for the coming financial year (regardless of the amount (if any) that the provider would be liable to pay as a result of the proposal).”

Amendments 295D to 295EA agreed.

Clause 138, as amended, agreed.

Clause 139 : Responses to consultation

Amendments 295EB to 295EG

Moved by

295EB: Clause 139, page 141, line 36, after “more” insert “potentially liable”

295EC: Clause 139, page 141, line 42, after “more” insert “potentially liable”

295ED: Clause 139, page 142, line 5, after first “the” insert “potentially liable”

295EE: Clause 139, page 142, line 7, after first “the” insert “potentially liable”

295EF: Clause 139, page 142, line 35, after first “the” insert “potentially liable”

295EG: Clause 139, page 142, line 38, after first “the” insert “potentially liable”

Amendments 295EB to 295EG agreed.

Clause 139, as amended, agreed.

Clause 140 : Amount payable

Amendment 295F

Moved by

295F: Clause 140, page 143, line 38, at end insert “(but this does not affect any other method of recovery)”

Amendment 295F agreed.

Clause 140, as amended, agreed.

Clauses 141 to 147 agreed.

Amendment 295G not moved.

House resumed.