Health and Social Care Bill (Programme) (No. 3)

Perhaps the hon. Lady has not understood the point that I was making. Her own Government were responsible for the opening up that she talks about and fears, and most Labour Members voted for it. I did not vote for foundation trusts, nor did many of my party colleagues. Clearly Labour Members did, however, and we will return to that. It is a fair point to say that if we have Monitor, that does not take us out of the whole legal web, as it cannot stop other legal processes, or a disappointed provider going further. However, it dramatically lessens the impact, and dramatically reduces the probability of that happening. We can only escape this legal web effectively if we take Mr Roderick's advice and re-examine each and every element and characteristic of the NHS structure—or, to put it simply, if we reverse Blairism. Sadly, I have come to the conclusion that anyone who claims certainty in respect of this area of EU law is probably a fool. There are two reasons for that. First, as Mr Roderick advises me, the definition of ““undertaking”” in EU law is changing. Secondly, he thinks that schedule B services, which are of some concern to people who are interested in this sort of thing, are under review by the European Community. I was genuinely impressed by the hon. Member for Leicester West (Liz Kendall) when she summed up the Labour party's problem in this area in Committee. I circulated her words to my colleagues so that they could survey the argument as expressed in its strongest form. She said:"““I am not arguing, as Ministers have claimed the Opposition have, that the Bill extends the scope of competition law. My argument is that the Bill extends the applicability of competition law to the NHS. It is not just the clauses we are discussing today that will make that happen; so will other clauses, such as those that abolish the private patient cap on foundation trusts, and aspects of the Government's policy, particularly requiring commissioners to consider any qualified provider for all services””—" which is not in the legislation. She continued:"““All those things will guarantee that the NHS will be considered and treated as a full market, and that the providers of NHS services will for the first time be treated as undertakings for the purposes of competition law.”” ––[Official Report, Health and Social Care (Re-Committed) Public Bill Committee, 12 July 2012; c. 400.]" We simply do not know how the EU will define ““undertaking””—we do not have that level of certainty—and my view is that we do not currently know much about the applicability of EU law. I am not as pessimistic as Mr Roderick, the 38 Degrees adviser, about what we can do about the situation we are in, however. He claims that the Bill cannot limit the application of competition law:"““nothing in the Bill…can have the effect of preventing the application of competition law.””" So this may all be going to happen regardless of whether we accept this Bill. I accept that this is an extraordinarily difficult area that interests many health anoraks ad nauseam, but probably loses the general public. However, what makes it difficult is not the Bill per se, but all the changes in the NHS over previous years, on which those on the Treasury Benches and those on the Opposition Benches have usually been at one. However, my contention is that it is clearly better if Monitor takes on the role of carrying out whatever regulation or adjudication will be necessary. I want briefly to turn to amendments 1219 and 1220 in my name. The motivation for moving them stemmed from the Committee stage, which I am happy to say was a thoroughly congenial occasion that all Members thoroughly enjoyed. Through that process we were convinced—as I have tried to convince Members today—of the benefits of a sector regulator: Monitor. However, we then reached clause 71, where we discovered the strange anomaly that mergers of foundation trusts go to the OFT, which has no experience and little inclination, might be disposed to treating hospitals purely as businesses, and which, if it gets involved, will make reconfiguration a lot more complex and difficult. Given the appalling problems that we shall have in the acute sector over the next few months and years, I certainly would not want to see the OFT wading in and overruling decisions that are sensible rationalisations. In a sense this is slightly ludicrous. If one foundation trust is a public body and the other is also a public body, they are both essentially owned by ““UK plc””. Where, then, would we refer that decision? If Marks and Spencer owned those institutions, it would merge them and there would be no issue with which the OFT need detain itself. However, if we accept that such issues should go to a regulator, why this regulator? Why the OFT? Why not instead leave it, as most people supposed would happen, to Monitor? A variety of answers were given in Committee. One was that such a merger would have to go to the OFT because there could be a combined turnover of more than £70 million. However, then it became apparent that it was not just that revenue or budget threshold that determined whether such matters went to the OFT, because non-foundation trusts, regardless of size, would not go to the OFT. I therefore still ponder where we can go with this. I heard the Secretary of State say that the problem is that if, as my amendments propose, we take out the reference to foundation trust mergers going to the OFT—which would be a sane and sensible thing to do—we may still fall foul of other bits of legislation. We may also risk double jeopardy. I understand that that is a real problem, which we would want to avoid. The difficulty I have is that if, as the Secretary of State says, this is a very uncertain field legally, it is probably not wholly justifiable to put formally into the Bill the application of part 3 of the Enterprise Act 2002. It is probably better to get the legal situation a bit clearer, and I am fairly confident that that is the view that their Lordships will take when they examine this Bill.