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

I understand why the hon. Gentleman tabled those amendments and I understand his concerns. Opposition Members have consistently argued that the Bill threatens to pit doctor against doctor and service against service when they should be working together in the best interests of patients. Our view is that a far better approach than seeking to amend the Bill would be to delete part 3, because it is a fundamentally wrong way to treat our NHS. A few small changes to Monitor's duties would not alter what the Bill seeks to do, and that is why amendment 10 proposes deletion of part 3. The Bill will guarantee that the NHS will be treated as a full market, and the providers of services will, for the first time, be treated as undertakings for the purpose of competition law. The Secretary of State said that the Bill would not increase the applicability of competition law, but the Minister of State confirmed it when he told the Committee:"““UK and EU competition laws will increasingly become applicable…in a future where the majority of providers are likely to be classed as undertakings for the purposes of EU competition law, that law…will apply.””––[Official Report, Health and Social Care Public Bill Committee, 15 March 2011; c. 718.]" If the Government wish to claim that that would not be the effect of the Bill, they should publish any legal advice they have taken. Again, we have two different stories. The Minister of State says that the Government have taken legal advice, but in answers to parliamentary questions we hear that the Government have not taken legal advice. Members deserve to know what the advice is about the implications of this Bill. NHS staff, patient groups and members of the public have very real fears about the consequences of the Government's proposals and the full market that is envisaged in the Bill. The previous Government saw that giving patients more choice and a greater say in their treatment, and bringing different providers into the system—including from the private and voluntary sectors—can bring real benefits, including improving outcomes and efficiency, especially in elective care. But we always did that using clear national standards that this Government are abolishing and with the ability to manage the consequences that choice and competition bring. One of the problems with this part of the Bill is that it does not recognise what some hon. Members have talked about—the interdependency of services. If we remove one service from a hospital, it has a knock-on effect on others. The ability to get the benefits of diversity and competition without destabilising services is a tricky balance, but the Bill does not acknowledge that balance. I am not just talking about the clauses we are discussing now. The Government are also abolishing key organisations, including primary care trusts and, in particular, strategic health authorities, which have an important role in managing the consequences of choice and competition in the system. The two biggest challenges facing the NHS are to specialise and centralise some services in specialist hospitals and to shift other services from district general hospitals out into the community. These changes will have consequences for hospitals. The Bill will make the changes harder to make, and the clauses that we are discussing will prevent the kind of close working and involvement of patients, the public and elected representatives that we need in order to make these changes happen. The clauses also have consequences and implications for taxpayers. We come to the issue of Monitor's costs. Chris Ham, the head of the King's Fund, the well-respected health think tank, wrote in a British Medical Journal article in February that"““the government's proposals run the risk of replacing the bureaucracy of performance management with the red tape of economic regulation. Monitor will need to employ large numbers of economists, ""lawyers, accountants, and managers to deal with competition issues, providers who fail, price setting, licensing providers, and other work.””" That is not just a risk; it is a reality. The Minister of State kept changing his position in Committee. Initially he told us that the costs of Monitor would rise from £21 million a year at present to £130 million a year, but he then revised that figure down to £80 million. Of course, however, because the Government have not bothered to publish their impact assessment for the Bill, we have no idea what the costs of setting up this huge new regulatory body will be. It is not just Monitor that will end up having to employ lawyers, accountants and managers; clinical commissioning groups in hospitals will probably need to do it too. They could even be forced to take out expensive insurance in case they are fined, taken to court or even sued because they have fallen foul of competition law. It is for all those reasons that we are so concerned about the Bill: because we do not think that the NHS should be remodelled along the same lines as the privatised utilities; because we think that competition is not the panacea that the Government think; and because we think that there are very real risks that the legislation will stop hospitals working together and developing their own community services because it could be seen as anti-competitive behaviour. I turn to Government new clauses 2 and 6 and the series of Government amendments on their new failure regime. It is important that we are clear from the start about the purpose of these amendments, even though we have had only a very brief time to look at them—none of the professional bodies, health experts or managers have had a chance to scrutinise them properly. The Government claim that they are about securing continued access to services for NHS patients. That is an admirable attempt to spin what this is about. In fact, it is a fundamental part of the Government's plan to create a market in which more services will be likely to fail because that it is a way of getting new people into the system. That is the reality of what is happening. The future of local services and whether they will be allowed to fail will be determined not by local clinicians, not by local patients and the public and not by locally elected representatives—I shall explain to the Secretary of State in a moment why his own policies will not do that—but by the new economic regulator, Monitor. I do not believe that this is what people want for their NHS, and it is not supported by Labour Members. We have heard a lot from some Government Members about how bail-outs and bungs to NHS services have to end. I would just say that many services have received money because we want those services to continue. In my own constituency, Leicester hospitals are facing challenges and problems, and it would be useful to know whether, if their current £11 million deficit was covered by money found within the local health economy, it would be considered a bail-out or bung that would not be allowed under this system. I would be interested to hear from the Secretary of State whether that would be the case. Some Members will have an entire hospital in their constituency at risk of failing financially. We know this because Sir David Nicholson, the chief executive of the NHS, told the Public Accounts Committee on 25 January that there were 20 failing trusts—trusts that cannot become foundation trusts. I have asked the Minister repeatedly for a list of these trusts so that hon. Members who have patients who use those hospitals will know which ones they are and what the Government's plans for them are. Once again, however, the Government have failed to be open about that, which is a mistake because difficult changes can be made only if the Government genuinely engage with patients, the public and Members of the House on the decisions being taken. The Bill also proposes removing the ability for foundation trusts to revert to NHS status and the ability to transfer assets and staff from the NHS, including to the private sector. Far from ending cherry-picking, as Government Members claim, it allows Monitor to vary prices for NHS services, including to private providers. That is what these new amendments state. The Government have made much of their claims to the Future Forum that cherry-picking will be ended. We did not get to discuss the cherry-picking amendments, and the new amendments now allow Monitor to do just that, which is a matter of great concern. These issues have not been scrutinised by doctors, nurses, managers, other NHS staff or local councils—and not even by the economic regulator, Monitor, which is running the process, or the Future Forum. It will therefore fall to Members of the other place to ensure that they hear the views and concerns of those bodies when they are scrutinising the Bill. The situation is even more concerning because of the Government's poor track record—that is a polite way of putting it—on this issue. They got it badly wrong the first time round with their proposals for Monitor to designate which services are essential for patients and which would be allowed to fail. In the first Bill Committee, we argued against designation because it failed to ensure proper local democratic accountability; because it failed to understand that allowing one NHS service to fail would have a knock-on effect; because it failed to recognise the in-depth local knowledge required to make these decisions; and because it was a cumbersome and bureaucratic process. Above all, we argued that the process was wrong because it should be driven not by the economic regulator, Monitor, which is unelected and unaccountable, but by local people, patients and staff. The Government refused to listen, denying that any of our concerns were valid. I am glad that when the Future Forum made the same arguments as Labour Members, the Government put aside political prejudice and agreed to delete their designation clauses. However, they are making the same mistakes again. The new failure regime will be driven not by clinicians but by the economic regulator, Monitor. It will not give patients and the public a strong voice and it will not ensure effective local democratic accountability. In reality, Monitor will take the lead in deciding which services are essential for local people and therefore whether they should continue in any form; whether and how it should intervene to try to prevent services from failing; and, if a service cannot improve and needs to close, what will be put in its place. The NHS Confederation says in its briefing for this debate:"““under these proposals Monitor will make fundamental decisions affecting the sustainability and future of individual services…the pattern of local NHS provision and we are concerned that it is unclear how Monitor will take decisions and how it will be held accountable.””"