Health Bill [HL]

My Lords, given the late hour, I have just put red lines through most of my speech, and will only give the edited highlights. The amendment tabled by the noble Earl, Lord Howe, seeks to maintain the existing rules governing the private patient income cap for NHS foundation trusts, but allows the Secretary of State to make regulations so that the foundation trust regulator, Monitor, can make exceptions to the general rule if it believes that it is in the interests of the NHS to do so. The regulations can specify conditions upon which such exemptions may be permitted. I start by making a technical comment, though I hesitate to do this to the noble Earl. The amendment amends part of Section 15 of the Health and Social Care Act 2003. This has been consolidated into the NHS Act 2006 as Section 44, and repealed. The amendment therefore has to be to Section 44 of the Act. It is not often I get the chance to say something like that to the noble Earl. He is so perfect in these matters. Noble Lords will know that there is a difference of opinion about the interpretation of the existing legislation—in particular, about what income is caught by the cap. This is the subject of judicial review proceedings and, in those circumstances, I do not propose to comment in detail on the interpretation of the current provisions. However, I stress that we understand the intention behind the amendment. During the debate in Committee, we examined the rationale behind the probing amendment laid by the noble Baroness, Lady Meacher. As noble Lords will recall, her amendment was introduced to initiate a debate about how best to reform the private patient cap. We understand the concerns that have been expressed regarding the cap. In Committee, I made clear the Government’s desire for a wider debate on the cap in the context of evolving health policies—particularly, for example, my noble friend’s next-stage review of the NHS with its emphasis on innovation, the development of intellectual property, and greater collaboration and partnership working. As a general rule, we consider that it is better to have a consistent set of rules set out in legislation which is applicable to all NHS foundation trusts, rather than a discretionary system of exemptions, which might well be perceived as unfair and could lead to uncertainty. As I outlined in Committee, the fact that the cap is reported to impact adversely on some NHS foundation trusts and patients is a concern to us. However, it is plainly evident from both amendments which have so far been tabled in this House on the subject that the cap is controversial and that reforming it is far from straightforward. We believe that a lasting solution to the question of restricting foundation trusts’ private patient income cannot be achieved by introducing amendments to the legislation without having a broader public debate about the longer-term direction. In general, we do not believe that the best way to reform the cap is by introducing a discretionary system of case-by-case exemptions to the present rule. That would not create a uniform system of rules for all NHS foundation trusts and could lead to perceptions of unfairness. However, we accept that this area needs attention and debate, and therefore I hope that the noble Earl will withdraw his amendment.