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"( ) For the purposes of this section a failure to perform a function properly includes a failure to perform it consistently with what the Secretary of State considers to be the interests of the health service in England or (as the case may be) with what otherwise appears to the Secretary of State to be the purpose for which it is conferred; and "the health service" has the same meaning as in the National Health Service Act 2006."
In section 67 of the Medicines Act 1968 (offences under Part 3), after subsection (2) insert-
"(2A) But it is a defence for a person charged with an offence under subsection (2) in respect of a contravention of section 64 to show that the person exercised all due diligence to avoid committing the offence.""
Lord Clement-Jones: My Lords, in moving Amendment 297, I shall speak also to Amendment 301. First, I declare an interest as chairman of the council of the School of Pharmacy, University of London. For the avoidance of doubt from the outset, I will not press these amendments.
In Committee, I moved an amendment to provide a due diligence defence to the currently strict liability criminal offence committed under Section 64 of the Medicines Act 1968. This has the potential to operate very harshly on those making single errors dispensing medicines, whether in retail or hospital pharmacies. The intent of the original amendment was to remove the injustice that pharmacists and some others among healthcare professionals face criminalisation through single dispensing errors.
It was also very importantly designed to increase patient safety by removing barriers to a learning culture within the pharmacy profession and to ensure that pharmacists who wish to declare a dispensing error in the interests of patient safety are not penalised. The formulation of a defence, which gains universal acceptance among the pharmacy profession, has however proved more difficult than originally anticipated. Although the regulator, the General Pharmaceutical Council, has been supportive of the proposed amendment, there is as yet no consensus with the pharmacy professional bodies as to the best way legally of formulating a defence that meets these objectives.
There is, however, a unanimous view among professional pharmacy bodies that it would be better not to amend the Act at this juncture in this way but to wait for the full review of offences under the Medicines
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In this context, it would extremely helpful for all concerned if the Minister could confirm the timetable for the scoping of the sanctions and penalties in medicines legislation review to be carried out by the MHRA and any other details of the review that he can give at the present time, such as the procedure, the timetable, and the involvement of the regulator-the GPhC-and professional bodies.
Although this is not directly within the gift of the Minister, it would be extremely helpful if he could also indicate that the department will engage with the DPP and the Crown Prosecution Service to encourage them in the mean time to engage with the profession and the regulator in reviewing the prosecution guidelines for offences under the Medicines Act. That would be extremely welcome to all those concerned in the profession. I beg to move.
Lord Hunt of Kings Heath: I must say that I am surprised that the noble Lord moved this amendment. He told me yesterday that he was not going to and did not have the courtesy to tell me that today he is. The amendment raises a very interesting question. No doubt we will be very interested to hear the response of the noble Earl, Lord Howe. He might perhaps add the membership of the review team to the details of the review.
Earl Howe: My Lords, I am very grateful to my noble friend, to whom I should like to pay a particular tribute for his work to bring interested parties together on this important issue to see whether a common view could be found on a practical way forward.
Both I and my ministerial colleagues are determined to ensure that we address the concerns of pharmacists and registered pharmacy technicians about the risk of prosecution for inadvertent as opposed to wilful or reckless dispensing errors. We and the profession want to see a learning culture that encourages the reporting of dispensing errors so that any helpful lessons can be learnt. Equally, we must make sure that any changes we introduce continue to give patients protection under the law and do not in any way compromise patient safety. It was therefore disappointing to me that, after a great deal of dialogue in recent months, there has not been a sufficient measure of agreement to proceed on a specific legislative change at this time. I have to accept the reality of that, despite everyone's best efforts.
I turn to the next steps in resolving this issue. The Medicines and Healthcare products Regulatory Agency intends to carry out a review of sanctions and penalties in medicines legislation. This will extend well beyond issues that have arisen in dispensing errors, but the review will look at the respective roles of medicines legislation and professional regulation in this area. It
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This will be a significant and wide-ranging review, and it is important to ensure that it covers the right ground. The MHRA would aim to scope the coverage, conduct and timetable of the review by September 2012. I will just say to the noble Lord, Lord Hunt, that membership of the review team will be established as part of the scoping work. As part of that scoping, we will look at the feasibility of including an independent element to the conduct of the review as it relates to the challenging task of achieving a suitable balance between the roles of medicines legislation and professional regulation.
In the mean time, we are encouraged by the guidance to government prosecutors in England and Wales issued by the Crown Prosecution Service in June 2010 and by more recent dialogue. It is clear from this that the CPS takes very seriously the issue of judging the question of whether there is a public interest in mounting a prosecution. I am sure, too, that the Director of Public Prosecutions will read tonight's debate and consider very carefully the comments that have been made. We will certainly look to encourage any opportunity for further constructive dialogue on the issue.
It is important to emphasise that all parties have their part to play in developing a solution and a culture that protects the public while encouraging and supporting pharmacists and pharmacy technicians to report, and learn from, mistakes-which in turn improves patient safety. In this regard, we see the role of the professional leadership bodies for pharmacists and pharmacy technicians as critical; and we would encourage pharmacists and pharmacy technicians to ensure that they are well placed to respond to the professional regulator in a manner that makes the public's interest central to any future discussion.
In conclusion, I reiterate my thanks to my noble friend for enabling this afternoon's debate on the issue. I hope he will be reassured by the undertakings I have given that, despite the current lack of consensus, we will continue to work with interested parties on a way forward.
Lord Clement-Jones: My Lords, I thank the Minister for that reply. First, let me say to the noble Lord, Lord Hunt, that no discourtesy at all was intended. We may have misunderstood each other. I never intended to press the amendment, but of course wished to raise the issue in order to get a response from the Minister about the way forward in the absence of this amendment being incorporated in the Bill. I apologise if I inadvertently misled the noble Lord.
We all have the same purpose, which is, as the Minister said, to encourage a learning culture within the profession so that it no longer has hanging over it a lack of a defence to the absolute liability in Section 64 of the Medicines Act; and, it may well be, other
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I thank the Minister for showing us the way forward with the MHRA review of the scoping that will be done by September 2012. I very much hope that, as he said, the DPP will consider this debate very carefully, and that he will respond favourably and engage in a review of the guidelines. I also reiterate the Minister's wish and hope that the profession will engage very closely with the MHRA in this review and in any review of the guidelines by the Crown Prosecution Service. In the mean time, I beg leave to withdraw the amendment.
"( ) the first regulations under section 84 (licensing requirement: exemption regulations);"
"( ) the first order under section 87 (approval by Secretary of State of licensing criteria);"
(A2) Before bringing forward any order to bring Part 3 of this Act into force the Secretary of State shall consult the NHS Commissioning Board, the Independent Regulator of Foundation Trusts, the Care Quality Commission, patients or their representatives, and staff delivering NHS services or their representatives, and shall report to Parliament on the outcomes of the consultation.
Baroness Thornton: My Lords, as we near the end of our deliberations on Report, I hope to set out the case for changing not the policy but the pace of implementation. We have discussed extensively the policy background and the legal and other implications of this Bill. We have agreed on some things and disagreed on others. The case for Amendments 300A and 300B is simply that we have learnt a great deal in the past 13 months since my noble friend Lady Wheeler and I asked 18 other noble Lords to join us in organising seminars about this Bill because we felt that the House needed to understand it better. I have to say that 13 months later I am not sure whether we do understand it any better. However, what is quite clear from those seminars and our discussions since the autumn is that there are risks involved in this Bill. There are credible claims that detrimental consequences brought about by the scale of change are already being felt. There are some extreme assertions, such as from regional risk registers, that patient care could be seriously impacted.
In these remarks I am really only going to assert what we know. We know what is in those risk registers, we know the risks that we have discussed and we know that this is the largest reorganisation that the NHS has ever undergone, including the one that set it up. The evidence that we collected in our seminars raised the scale of those risks. During our debates risks have been mentioned time and again-risks to children, to older people and to people with long-term conditions. The Health Select Committee and the Public Accounts Committee have both added weight to those expressing concerns about the scale and pace of change, and that is the point of these amendments.
We still do not know what the key risks are in the risk register, which is a grave disappointment, but that may actually add to our concerns. Our concerns should also be heightened by the poor track record of the Department of Health to oversee and manage change
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In adding to the risk inherent with the implementation of this Bill, we have put forward an amendment that is intended to ensure that part of the Bill is deferred and the major part of the Bill is proceeded with. That is what this amendment is about, and I think it has advantages. First, we have to allow time and bring about some stability for the Nicholson challenge, as it has been called, to deliver the savings. We know that economic regulation is not a key factor in delivering those savings, as evidence to the Health Select Committee demonstrated. Reforms in both commissioning and provision can continue as now in advance of economic regulation in the full market. That is the first reason. The Nicholson challenge and the savings need time to embed themselves and to work their way through the system.
Secondly, many in this House and outside have expressed concerns that the role of Monitor as the independent regulator of foundation trusts should not be weakened. To some extent that has already been acknowledged in the changes made to the Bill, but the addition of new rules and duties to Monitor is, we believe, in itself a risk. Under our amendment, Monitor would complete its role in authorising foundation trusts and be well on its way to moving to a light-touch regulation, so that the inevitable conflicts of interest, which many noble Lords have raised during the course of this Bill and outside the Chamber, would be lessened. The pipeline of expectant foundation trusts is still long and will not decrease any time soon. It seems that there is a job of work for Monitor to do in managing things such as mergers, takeovers, and franchising for laggards. That process, of itself, is enough, and we want to reduce the risks of failure in those processes.
It also seems that developing and building the capacity and capabilities required in a wholly new regulatory regime will and should take time. There is much to do, and we think that undue haste brings with it its own risks. The emerging clinical commissioning groups will be commissioning with billions of pounds of public money, yet they are young organisations with only light governance. They will need time to grow and to build capacity, capability and experience before they have the additional complexities of market regulation, and this amendment allows for that.
The most compelling reason for sequencing-a term that I openly acknowledge I first picked up from the noble Baroness, Lady Williams-is that it will give time to work with those who have to implement the changes, as opposed to forcing those changes upon them. Even those in the Government and on the Liberal Democrat Benches cannot really pretend that the widespread opposition to this Bill and the arguments for it to be reconsidered are all part of some Labour plot, as has been suggested. Would that it were that the Labour Party had such influence and strength. I do
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My final point is about the consequences of sequencing. At the outset, we heard claims that the NHS was in urgent need of competition to drive through reforms to improve outcomes, but evidence has been compiled to show that while our NHS is far from perfect-and indeed may need reform-it is still arguably up there with the best in the world. Where we lag behind, we are closing the gap, which is testimony to our support and investment in the NHS. We believe that there is no urgent reason for implementing Part 3 of this Bill, either for clinical or financial reasons. On the positive side, we are not suggesting any delay in developing other aspects that have wider support, such as clinically informed commissioning, health and well-being boards, HealthWatch and much else. These changes need not be delayed if our amendment were passed-indeed, they are pretty much going ahead anyway-but could proceed with less risk. By sequencing the changes, the risks posed to patients can be lessened and the prospects of delivering the Nicholson challenge increased.
While other parts of the Bill bed in and foundation trusts can be regulated and registered as far as possible, it seems to me that May 2016 is the right time to implement Part 3 of the Bill. At some point in this Bill, the Government had set that date for getting foundation trusts set up, as far as they could be. That will be when all the other work has been done and is bedded in, and has perhaps built up some support with less fear and hostility than it does at the moment. I beg to move.
Lord Owen: My Lords, the case has been made extremely well for accepting that one of the most vehement elements of criticism could be somewhat defused if this amendment was accepted by the Government. After all, some people have argued that the whole of Part 3 should be abolished. By accepting that the Government are going to go ahead but just asking that the relevant measures should be phased in seems to me a very rational and reasonable way of acknowledging that there is very deep-seated and justifiable criticism of this legislation.
Reference has been made to the primacy of the need to make the efficiency savings and the need to carry the people in the health service with regard to the provisions in the Bill. I do not want to weary the House by listing the royal colleges that are now opposed to this legislation but it is a staggering development. Nobody can deny the phenomenon that we are seeing; it is unprecedented. I would never have conceived it possible that there would be this degree of professional criticism of the Bill when I first started to look at it
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Lord Clement-Jones: My Lords, I am afraid that I cannot agree with the noble Lord, Lord Owen, as regards supporting the amendment. However, I appreciate that the noble Baroness, Lady Thornton, has adopted a much more emollient line on Amendment 300A, is not making a full frontal attack on the whole Bill and is looking simply at Part 3. There is certainly an argument to be explored in what she had to say but I cannot understand the logic of why, of all the parts of the Bill that she has talked about today, she is focusing on Part 3. I find it extraordinary that throughout the debates that have taken place on the Bill the Opposition have refused to accept that the National Health Service Act 2006 introduced price competition into the NHS. If Part 3 did nothing else but plug some of the competition problems in the 2006 Act, I would support it.
Baroness Thornton: Would the noble Lord care to tell me to which part of the 2006 Act he is referring because, according to my recollection of the Act, it does not mention the word "competition" anywhere?
Lord Clement-Jones: My Lords, that is precisely the point and that is precisely why the Labour Government were avoiding any argument because that is where the big loophole lies. Any competition lawyer will tell you that that was the point where EU competition law started to bite in the NHS. That is a fact which you cannot deny. The establishment of independent treatment centres constituted a major introduction of the private sector into the health service by the Labour Government. That process was far more unregulated than it will be in the future under this Bill. There were major flaws in the 2006 Act which have never been fully acknowledged by the Labour Party throughout these debates. The noble Baroness's speech could have been written three or four weeks ago. The Opposition refuse to accept the value and benefit of the amendments that have been made to Part 3 just in the past two weeks. I will not adumbrate them all. I refer the Opposition to the House of Commons paper that has just been written which sets out in great detail something like 2,000 amendments that have been made to the Bill since it started its passage through the House of Commons. We have had Future Forum, we have had 1,000 amendments tabled in this House alone and we have had changes to the Competition Commission's involvement.
Baroness Thornton: What is the noble Lord's answer to the question which I put? I was not attacking him and his party. I realise that he has to attack; that is his method of dealing with issues. That is a shame as I have from time to time tempted him not to do so. However, does he accept what the noble Lord, Lord Owen, said about the hundreds of thousands of people and professionals who are fearful of this Bill? Attacking me as much as he likes will not alter that fact.
Lord Clement-Jones: My Lords, I really enjoyed the noble Baroness's intervention. Today's news about the change in attitude of the Royal College of General Practitioners shows that we have reached a genuine watershed. It may not have changed its mind absolutely, although it appears that membership pressure is being applied to the leadership of the royal college, but this is a real watershed whereby the acceptance of the fact that the Bill is going through is changing hearts and minds-not just minds but hearts as well. I am far more optimistic than the noble Lord, Lord Owen, because I believe that the other royal colleges will follow suit. They are actually looking at the substance of the Bill, not at some of the alarmist propaganda being put out. They are considering how mergers between foundation trusts will be regulated, how Monitor will do its duty and the additional powers that Monitor will have following consideration by Future Forum and Members of this House. They are also considering the impact of EU competition law following the Pepper v Hart statement that was made the other day. They are looking at the substance, which is exactly the way to look at the Bill. I believe that Part 3 is one of the most valuable parts of the Bill. I did not believe that it was acceptable to start with. That is precisely why I put down amendments in Committee and on Report. I am very pleased to say that it is much improved. The Bill should not be held up because of Part 3. In fact, it should be celebrated because of Part 3.
Lord Newton of Braintree: My Lords, those who have been here will have realised by now that this is one of my "good boy" days. At the risk of seeming sycophantic, even beyond being a good boy, I support every word that my noble friend Lord Clement-Jones has just said. I will refer back in a moment to something the noble Baroness, Lady Thornton, said about former Ministers. This chunk of the Bill-Part 3-is largely about Monitor and includes a lot that the House has been pressing for in terms of increasing Monitor's power to intervene and do sensible things in a sensible way. It also includes all the stuff about pricing and tariffs, which in my view need to be addressed now, not in four years' time.
My main point concerns what the noble Baroness, Lady Thornton, said about former Ministers knowing about the problems caused by upheaval. We do. I became very much aware that the publication of a White Paper was the start of a process, not the end. Too often Ministers think that all they have to do is publish an edict and everybody on the ground will carry it out. These things take time, trouble and involve culture change. However-this is the point here-what is equally or even more damaging is year upon year of uncertainty, which is what this amendment seeks to bring about.
I have referred on a number of occasions to the merger/takeover proceedings in which I was involved last year with the health trust that I then chaired. That occurred partly against the background of Monitor and the competition matters that are being changed in this Bill for the better. The worst thing was the uncertainty for everybody involved-the way it was dragging on and nobody knew what the future was. Good people started to leave or think about whether they had a future with the organisation. It would be insane to go down this path and I strongly recommend that the House should not do so.
Baroness Williams of Crosby: My Lords, I fully understand the fervour and passion with which my noble friend Lord Clement-Jones spoke, because he feels very strongly that he, with the help of others, brought about a real change in Part 3. I make no pretence about the fact that I began by being totally opposed to Part 3. I was on public record as saying that I thought it was a very bad thing indeed, but very sweeping changes have been made to it, and on that I agree with the noble Lord, Lord Newton of Braintree.
However, I do not want to stop at that point. My noble friend said that we were at a watershed and I believe that we are. I pay tribute to the noble Baroness, Lady Thornton, and her colleague, the noble Lord, Lord Beecham, for tabling this important amendment, and I shall explain why. In this House, we have a great deal of trust in the Minister. Repeatedly and rightly, huge tribute has been paid to him throughout these debates for his understanding, his patience, his willingness to go a very long way to meet the needs and requirements of other people and, if I may say so, his permanent consciousness and awareness of why the British public love the NHS so much. More than virtually any other politician that I can think of, he has real empathy with what people want and expect from their health service and it is important to recognise that.
The noble Earl has punched-if I may say so politely-well above his weight. His weight is not, of course, that great but his punch is terrific. He has persuaded a great many of us-not, I suspect, only on this side of the House-with the elegant and generous way in which he has put forward compromises and concessions. Many of us have accepted these or, like the noble Baroness, Lady Greengross, decided to wait a little longer to see what might come out of what he said. That is an immense personal contribution.
We would be in a world of illusion if we did not recognise that outside this House and the other place, where my honourable friend Mr Burstow is doing his very best on the social care side, there is, as the noble Baroness, Lady Thornton, rightly said, massive distrust and disbelief in what we are trying to do. We have to address that or we can forget altogether about doing what the noble Lord, Lord Newton of Braintree, rightly said we need to do-to give the National Health Service some stability, some confidence and some sense that it has a future. This is the most labour-intensive public service. Our whole capacity for addressing the Nicholson challenge and the problems of an ageing and often chronically troubled society, and for delivering what most of us want and which is
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As Members of this House will remember, we owe a great deal to the noble and learned Lord, Lord Mackay of Clashfern, for the Conservative Party, we owe a great deal to the noble Baroness, Lady Thornton, and her team for the Labour Party, and we owe a very great deal to the Cross-Benchers for the steady support they have given to maintaining the stability and future of the National Health Service, which all of us recognise as probably the greatest single social achievement of this country since the Second World War.
What I like very much about the amendment is the second section, where the noble Baroness, Lady Thornton, and the noble Lord, Lord Beecham, point to the need for consultation before there is a move towards bringing Part 3 into full effect-I would go wider and say before bringing into full effect the Bill itself. It is vital that, when the Bill has completed its passage, the Government and the Department of Health in particular seek to hold a wider consensual discussion, bringing in the main bodies but also the main people who have been involved in the Bill, regardless of whether they stood for or against it, in order to give the National Health Service the foundation it needs to address the huge scale of the problems it faces.
I agree about sequencing. I suspect that it is really difficult to demand that the NHS seeks both to meet the Nicholson challenge right away and to deal with the effects of reorganisation. In so far as there can be some delay in the second of those-I have in mind, for example, whether strategic health authorities should be got rid of as quickly as the Bill currently proposes-there is clearly room for some meeting of minds about the best way to bring about the necessary changes without affecting the central issue of how that is done in the face of financial stringency.
I do not wish to hold up the House for long but I do want to say that we need, once again, to engage the royal colleges. I take the point of the noble Baroness, Lady Thornton, that they have, to a great extent, been alienated. It is crucial that we get across the changes that have been made. I will be among the first to say-because I paid the price for this-that many of the public do not know very much at all about the changes that this House has made. We have certainly been poor at communication. That is not entirely our fault because the Government, understandably, made their concessions at the very last moment of the procedures in this House-often, literally, just before we started debating. Understandable though that is, the drawback is that there is a total failure of communication, and the press-usually somewhat thinly represented in the Press Gallery of this House-is not terribly good at conveying what is happening as distinct from the scope and passion of contention, much of it totally beside the point.
In conclusion, it is now contingent upon us all, regardless of our party, to make a real effort to make this reformed Bill work. I do not like the Bill very much but I like it a great deal better now than I did when we began this long process. It has been a long and arduous process. I hope that we can turn our minds to the deep consultation with all those involved referred to in the middle part of the amendment, which I strongly applaud. That is the essential bridge across the watershed to which my noble friend Lord Clement-Jones and the noble Lord, Lord Owen referred. I hope that we can end on a note which will say how much this matters, and I hope that the Government will consider it very sensitively and carefully, because I think they will need it as much as the rest of us do.
Lord Crisp: My Lords, I had not intended to speak on the amendment, but I want to say a word or two in support of what the noble Baroness, Lady Williams, has just said. She and others have referred to the rift that has been created as the Bill has gone through Parliament and been discussed in the country. I am sure the Minister recognises that, but I know that he also recognises that now is the time to move towards healing that rift. Many people have, for whatever reason, been scared by what has been said and many people have also been scarred by what has been said. The noble Baroness is absolutely right to draw attention to the second part of the amendment and the opportunity that it gives to start to bring people together around the practicalities. We talk about the legislation but many people out there have to talk about the practicalities and how you make it happen-something with which many Members of your Lordships' House, including the noble Lord, Lord Newton, are very familiar.
This has also been about failing communication. I believe there is now more that unites people than divides them. There are many things that people agree on. There are still some very significant differences and, like the noble Baroness, Lady Williams, I am not a fan of the Bill. It has been a damaging process but now is the time for healing. It would be good to see some cross-party approaches to bringing people together in a positive fashion to deal with the practicalities, rather as is laid out in the second part of the amendment.
Earl Howe: My Lords, I think that it is important for me to begin by acknowledging fully the force of the wonderful speech by my noble friend Lady Williams, and indeed acknowledging the powerful points made by other noble Lords regarding the climate of opinion among the medical royal colleges and others in relation to the Bill. I cannot fail to be conscious of the suspicion and doubt expressed by many members of that community, although I have to say that opinions vary as to what the real views of some of the royal colleges are, bearing in mind that only a small percentage of their members were canvassed. However, I cast that aside because I am very aware of the validity of the points made by the noble Lord, Lord Owen. The Government are undoubtedly fighting a battle to convince the medical community of the merits of the Bill, a battle that we have so far not won. I can therefore very readily confirm to my noble friend that the first thing we would wish to do once the Bill reaches the statute
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I am grateful to all noble Lords who have spoken in this debate. In particular, I listened carefully to what the noble Baroness, Lady Thornton, had to say, as I always do. The question posed by her amendment is, on the face of it, "How can we improve Part 3?". The answer that she has given us is, "To postpone it". However, the subtext of her question is, "Why should we have Part 3 at all?". I am happy to set out once more exactly why it is essential that we have Part 3 -and not just have it, but have it without delay. We need it for two compelling reasons: to protect patients' interests, and to help the NHS meet the significant quality and productivity challenges it faces. They are benefits that I am afraid the amendment would stop in their tracks.
Part 3 sets out a clear, overriding purpose for regulating NHS services-to protect and promote patients' interests. That contrasts with Monitor's duty under the National Health Service Act 2006, which is merely,
functions. That 2006 duty is not adequate as it stands. It does not mention patients' interests and it is unclear. However, that duty is what would apply if Amendment 300A were accepted. The amendment would also discard the recommendations of the NHS Future Forum that Monitor should have additional duties: first, to involve patients and the public in carrying out its functions, as my noble friend Lady Cumberlege and the noble Lords, Lord Patel and Lord Warner, rightly emphasised; and, secondly, to enable integration.
It needs to be made clear that the provisions in the Bill interlock and are interdependent. Deferring Part 3 would not achieve the continuation of the status quo, but it would leave an NHS without strategic health authorities and primary care trusts and without a comprehensive and effective framework for sector regulation. There would be no organisation with the powers needed to support commissioners in developing more integrated services. That is something that the noble Baroness, Lady Finlay, and others have rightly demanded. There would be no organisation capable of enforcing requirements on providers regarding integration and co-operation. Neither would there be sector-specific regulation to address anticompetitive conduct that harmed patients' interests. The powers that currently exist to enforce advice of the Co-operation and Competition Panel would no longer be available. Instead, it would be reserved to the OFT to consider complaints under the Competition Act, rather than by a sector-specific healthcare regulator with a duty to protect patients' interests.
Earl Howe: My Lords, the proposal that we have made in the Bill is for the Co-operation and Competition Panel to be part of new Monitor. If the noble Baroness's amendment runs a coach and horses through those new arrangements, they are clearly very seriously destabilised.
Part 3 provides for a comprehensive system of regulation, covering all providers of NHS services and so protecting all patients whenever they use the NHS. The amendment would mean that patients using services supplied by the independent sector, social enterprises or charities would continue to be denied those protections. The protections would not, for example, apply to the 500,000 people in Hull and the East Riding of Yorkshire who receive NHS services from the City Health Care Partnership, a community interest company established under the previous Administration. The partnership offers a range of community-based treatments as well as early interventions to help minimise the need for acute care in hospital and promote healthy lifestyles. Monitor does not currently regulate the partnership, because it is a social enterprise.
Part 3 will extend equivalent safeguards to protect patients' interests, irrespective of who provides their treatment. That is a huge step forward. For the first time, there would be regulation to protect patients from the risk that poor management decisions may put essential NHS facilities and continuity of services at risk. By contrast, the amendment would perpetuate the situation whereby such protection exists only where patients receive essential services from foundation trusts. This would not recognise the nature of our NHS as a comprehensive service delivered by a diverse range of providers.
As well as providing for comprehensive regulation, Part 3 provides for effective regulation that will benefit patients by better enabling positive change. The noble Baroness mentioned the Nicholson challenge. Change in service delivery will play a vital role in achieving the Nicholson challenge of realising up to £20 billion of recurrent productivity improvements in the NHS, for example by providing older people and those with long-term conditions with more integrated care outside hospitals.
Part 3 will enable such change by empowering clinical commissioners to decide how best to improve services and when, where or, indeed, if to use competition as a means to that end. The amendment would leave no provision for sector-specific rules of this kind. Let me explain what that would mean. It would mean that clinical commissioners would face continuing risk of legal challenge whenever they decided to secure services without competition. It takes little imagination to see how that would stifle enthusiasm for clinical commissioning and potentially prevent the sort of innovative, integrated solutions needed to meet the demands of caring for an ageing population.
Part 3 would also enhance the NHS's ability to deliver positive change by improving the current pricing system. Improving the pricing system is important for three reasons: to strengthen incentives for improvement,
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These and other problems have been highlighted by the royal colleges and are well documented, including in the recent report by PricewaterhouseCoopers. However these are also complex issues that will take time to solve, and as the noble Baroness, Lady Thornton, herself has said, it has taken time and is likely to take time. Therefore time is of the essence. The NHS cannot afford further delays. For all of these reasons, there is a clear, compelling and urgent case for moving forward with Part 3 of the Bill. I hope that I have been able to able reassure noble Lords exactly why it is that we need it.
Let me return for a moment to the question that the noble Baroness is not asking us-how can Part 3 be improved? I should like to pay tribute to all noble Lords who have played such a constructive role in asking this particular question over the past six months: for example, my noble friend Lord Clement-Jones, who has helped us improve provisions relating to competition; the noble Baroness, Lady Murphy, who made proposals about the list of matters that Monitor must have regard to; my noble friends Lord Marks and Lady Williams for their focus on Monitor's accountability and the role of the Secretary of State; the noble Baroness, Lady Finlay, who has been a tireless advocate for greater provisions relating to integration; and the noble Lord, Lord Warner, with his improvements to the pre-failure regime. All of these amendments have improved the Bill, and it once again shows the range of expertise within your Lordships' House.
Given the scrutiny that Part 3 has had and the improvements that have been made, these amendments are not only unnecessary but, I would also submit, deeply damaging. They would harm patients' interests, denying them the benefits and protections that a comprehensive, purposeful and effective system of regulation will bring. Key providers of essential NHS services would not be subject to sufficient regulation. To sum up, pricing would not be reformed to address the flaws in the current system. The OFT and the Competition Commission would have sole jurisdiction over competition law. There would be no sector-specific legislation to give commissioners legal clarity on securing services without competition. This would mean there was no sector-specific regime for complaints and the only way to challenge decisions would be through the courts, creating a veritable lawyer's charter, something
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Baroness Thornton: I thank the noble Earl for his, as usual, extremely expert and very technical response, and I think that he completely missed the point. He did not address the risks that I mentioned all the way through the Bill, the risks that are contingent on implementing so much change so quickly and simultaneously. We will be back here very soon, I suspect, when we will be trying somehow to manage and mend.
I want to make just one or two remarks and will not keep the House very long on this matter. I would like to read to the House a Motion that Liberal Democrat MPs have tabled in the debate that is going on in the Commons right now. Both ends of this building are, as we speak, engaged with their concerns about the Bill. In seeking to amend the Labour amendment in the other place, colleagues of the noble Baroness, Lady Williams, and the noble Lord, Lord Clement-Jones, have said that they decline,
Baroness Thornton: It does not really matter. Five of his colleagues have put their names to it. The point I am making to the noble Lord is that I agree with them about the way forward. It echoes very much what the noble Baroness, Lady Williams, was saying about recognising the disquiet, hostility and fear that exists towards this Bill, particularly this part.
At the end of the day, the Royal College of General Practitioners and the other royal colleges, trade unions, nurses and doctors are the people who will save our NHS, whatever the Government have decided to do to it. They are the people who will actually deliver the healthcare. That is what the royal college of GPs is saying now. It did not say that it resiled from its position about this Bill; not at all. It is acknowledging that, along with the nurses and everybody else, it will deliver this Bill. It will put patients at the heart of the health system. I think that we should all pay tribute to that and be reassured by it.
The noble Lord, Lord Newton, said that mergers will still proceed. They will still proceed regardless of whether this amendment is agreed. However, he also said that good people leave when there is disruption in the health service. That is very true. They are leaving in their droves. We are losing hundreds if not thousands of good people from the National Health Service because of the past two years, the White Paper and the Bill.
I thank the noble Lord, Lord Crisp, for his remarks-I think he was very wise-and the noble Baroness, Lady Williams, for hers. She is quite right. I am flattered
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(a) for the duty of a clinical commissioning group under sub-paragraph (1) or (2) of that paragraph not to apply in relation to the whole or any part of the initial period (within the meaning of Schedule 6), and
(b) for the duty of the Board under paragraph 16 of Schedule A1 to that Act (inserted by Schedule 1) to have effect subject to such modifications specified in the order as the Secretary of State considers appropriate in consequence of the provision made under paragraph (a)."
Earl Howe: My Lords, I shall speak to the amendment very briefly. It is a minor and technical amendment that would clarify the Secretary of State's power to commence the provisions of the Bill relating to clinical commissioning groups. The amendment would apply when it was clear that one or more clinical commissioning groups established before 1 April 2013 would not receive any income nor incur or commit any expenditure directly during the period between their establishment and 31 March 2013. In that event the Secretary of State could when making the order commencing the provisions of the Bill about clinical commissioning groups disapply the accounting and audit requirements for that period. This avoids such CCGs having to create blank accounts for that period, which we do not think is a sensible approach. I beg to move.
Baroness Thornton: My Lords, we would not wish the CCGs to have blank accounts. I would merely like to congratulate the noble Earl on the 336 government amendments made to the Bill. When added to the 1,200 or so amendments made at the other end, they probably make for a very different Bill. I think that I might be able to say with confidence that it is probably a bit of a mess.
Earl Howe: That was a bit of a curate's egg of a response, but I take it in the spirit in which it was meant. I think that this House has played a very important part in making this a better Bill. I could not claim that this amendment is a particularly large part of those improvements, but I think that it will be a useful one.
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