Health and Social Care Bill

My Lords, I hope I will not be spending too much time on the excellent argument that we have heard from the noble Lord, who is a lawyer. I agree with everything that he has said, except that I want to draw attention to the absence of detail that, if we do not move now, we will confront when we face regulations on competitive markets and on the whole question of a qualified person. Let me first say to the Minister that it should be very clear that there is no consensus whatever on this aspect of the Bill. You cannot be aware of the arguments among general practitioners, among surgeons and physicians and within the nursing and midwifery profession and still believe that there is consensus on this question of competition. There is very considerable concern. As to his assertion that all this was fundamental to the modernisation of the NHS, if this is not changed it will be fundamental to the destruction of the NHS. Let us start with the first issue. We have evidence— like evidence-based medicine—about what unbridled competition does to a national health service. It has been referred to earlier in the debate. I recommend noble Lords to look at the question raised in the article by Colin Pritchard in the Journal of the Royal Society of Medicine this year, comparing health service competition policies in the USA, the UK and 17 western countries between 1979 and 2005. The conclusion is: "““In cost-effective terms, i.e. economic input versus clinical output, the USA healthcare system was one of the least cost-effective in reducing mortality rates whereas the UK was one of the most cost-effective over the period””." This is not a health service that deserves to be turned upside down and it does not deserve to be exposed to the American healthcare system. I have had 17 years as a non-executive on the board of one of the biggest American healthcare companies, Abbott Laboratories. Many aspects of American medical scientific research are the finest in the world. Many aspects of medical and surgical care in certain specialised hospitals in the United States are undoubtedly the best in the world. There is considerable excellence, but if you look at the system overall there is a deplorable decay in quality of care in some parts of the United States, which would make a third world developed country ashamed. I am not prepared to be borne along by some vague talk of consensus on this Bill. The Bill is hated in many aspects, particularly this aspect, in the National Health Service. The BMA has said that it should be withdrawn and has calculated that it would be less disruptive to withdraw it now than for it to continue. Let me take up some other aspects. I shall speak to the Amendments 278AA, BB and BC in my name. Amendment 278BB would insert, "““shall not commission services through competitive markets through a competition-based mechanism””." ““Competitive markets”” is a term of art. It has meaning in the world of competition. The requirement to manage competitive markets arises from supra-national legislation, with a detailed regime that must be applied, specified in EU law and reflected in national law. That is an obligation to reflect the EU regime unless some clawback of sovereignty is made. That is the situation, and it applies right across the board. Mr David Bennett, who is to be the chairman of Monitor, wrote an article in the Times in February: "““We, in the UK, have done this in other sectors before. We did it in gas, we did it in power, we did it in telecoms … We’ve done it in rail, we’ve done it in water, so there’s actually 20 years of ""experience in taking monopolistic, monolithic markets and providers and exposing them to economic regulation””." First of all, I do not concede that the National Health Service is a monopolistic, monolithic market. It is a very interesting fact, which is frequently forgotten, that the GP is an independent contractor, and has been since 1948. Many of the debates in this Chamber focused on this issue. My father was a doctor before the National Health Service. He charged patients because he had to. He hated doing so. But he was adamant that he was not going to go into a National Health Service—which he wanted and which he voted for in 1945—if he had to give up his independent contractor basis. He may have been wrong or he may have been right, but it is a massive difference in how you describe the NHS when you think of these independent contractors who have been there from the start. There are many other aspects of the hospital basis of the National Health Service, which took on in 1948 the spirit and commitment of voluntary hospitals up and down the country. Their assets were frankly seized by the state, but fortunately a lot of their moral underpinnings and fundamental values were not. It has been one of the triumphs of the National Health Service that it has been able to take some of that voluntary spirit and keep it within the National Health Service. Why was it that for decades, hospital doctors, surgeons and physicians worked very long hours uncomplainingly? What absurdity it is that that has been taken away from them by EU regulations and we have successive Governments who all agree that it is ridiculous nonsense, but they can do nothing about it. We are about to do the same to the whole National Health Service on this EU point. This is not a minor point. The noble Earl knows that I respect him very greatly as a parliamentarian. He has shown it day after day in the patient way in which we has examined the debates in this House, many of which have not been controversial, but have been informative and intelligent and could make some addition to this Bill. But I am afraid that on the fundamentals he speaks for a department that shows at every serious part of examination of the Bill that it is not prepared to provide us with the true facts. We had this debate about risk assessment. Let me come to the issue about competition. In 2006, a Labour Government commissioned a major study on competition and the effects on the EU. It is a scandal that I have been trying for months through Freedom of Information to get hold of this document so that we would have it before this debate. I have been obstructed at every turn by the Department of Health. Do not tell me that it wants the facts out here so that we can discuss them and know about this issue. As the noble Lord states, as an experienced lawyer, this is an area of very great complexity and yet we are not allowed to see this study, which we have paid for. It is not the possession of the Government—it was not even commissioned by this Government—but we are not allowed to see it. What is the Freedom of Information Act about? Are you afraid of the facts? Is there something that we cannot be trusted with? We are about to legislate on a very important area, which does have an impact on the EU, and we are deprived of one of the existing studies. So, all of us have had to go around and try to get expertise in this area and it is not easy to do so. The judgment I get from lawyer after lawyer is that the term ““competitive markets”” has meaning and substance in the EU. Unless we provide what I call a ““French railway”” clause, we will be forced by EU legislation. I come back to my earlier quotation that we have done this before in the railway system. Well, the EU has done it on our railway system but it has not done it on the French railway system. The French railway system operates on the basis of a Government who have decided that they are going to be outside EU competition law. I do not know quite how they have done it. I have had a very considerable search through the statute law of the French railway system—it has tested my French language to breaking point—but, with advice from others far more expert than me, I have put together in Amendment 278BC what I call the equivalent of a ““French railway”” clause. It is not good enough, of that I am quite sure, but I want the Government to focus on this issue. My wording is, "““shall operate in such a way that NHS activities remain wholly within section 1.3b of the General Agreement on Trade and Services, and within the services covered by the Limitations to the Horizontal Commitments contained in the ‘Trade in Services Conditional Offer from the EC and its Member States’ issued from Brussels on 29 April 2003””." It is quite true that the NHS has not yet come under the full provisions of the European competition and procurement policy. Let us be clear about procurement policy; it is an extremely important aspect of this whole issue. The reason it has been done is that, despite what a lot of people seem to think, Brussels is not always endlessly trying to pick fights. It knows that we have a National Health Service which is hugely popular and much cherished by the British people and it has not, until recently, even contemplated coming in on the NHS. I have to admit to a story. During the 1975 referendum I was the Minister for Health and my overall boss was the Secretary of State for Health and Social Security, Barbara Castle. During the referendum she made a speech saying that the NHS was threatened by the Common Market. I walked into her room and said: ““Barbara, if you make another speech like that I will make a speech which will oppose every aspect of what you said and the press will say the Health department is totally divided. It will do neither us nor the NHS any good.”” She listened very patiently and carefully and never made another speech, but I have to admit I was clearly wrong. The way the EU has evolved in this regard is potentially a threat to the NHS—I must say I am very surprised—but only be if the Government decide to make it so. It will only be if we do not provide some form of ““French railway”” clause to ensure that this does not happen to the NHS. I do not believe that this is actually even a party political issue. We have heard many different voices about the National Health Service in the debates here and, although I disagree with some aspects of what people think is the right way for the NHS to go, I do not detect a great wish to challenge the fundamentals. It is very clear to me, however, that if we set this Bill in motion we will find that that will happen, not because people necessarily want it to happen but because it has to happen. This is why I do not think it is sufficiently understood what this Bill will do. ““Any willing provider”” or, as it is now, ““any qualified provider””, sounds like a sensible thing. Why was it that the then Secretary of State, Andy Burnham, in possession of the opinion about the EU and its threat to competition policy, changed ““any qualified provider”” to say that the National Health Service would be the main provider? I believe that if we put that into the Bill, that alone would be our ““French railway”” clause, as ““any qualified provider”” and competitive marketing go together. We should preferably deal with both. This is a fundamental question which we must not disregard. On studying the Bill, there is practically nothing in it about what the regulations are going to contain. We know that there will be regulations, and I do not dissent from the view that that might be a reasonable way of doing things. However, until this matter is resolved in the body of the Bill, we dare not let this issue go off to regulations. I hope that this House, on this issue at least, will be prepared to vote down the present wording. The Bill does not deserve to be submitted to the country and signed by the Queen with this provision unchanged and unchecked. I feel strongly about the question. I believe that there is a solution, but I think that it is very hard to even begin to find that solution if the Government persist in refusing to let us see the document. I have not seen it. It may be that the document will strengthen their arguments. It may be that it will expose some of our fears as unjustified. But I urge the Minister, whom we respect, to go back to his Secretary of State and say that this document must be published in early January. They may be forced to do so. Judging from the freedom of information documents coming back to me, there is a belief that they ought to ensure that this is published. At one stage, people did not even know which year it was. It was thought to be about 2007. Now we have at least established that the year was 2006, which is one of the reasons that I had to put in another submission. I do not think that the Government will be taken seriously when we go on to Report if we have not had that document published in time for us to examine it fully and to get other legal advice. Certainly I, for one, would consider it to be an utter disgrace if we go on to Report and vote on this whole issue of competition if the document has not been published.