Health Bill [HL]

I understand that. We have gone so far down this road, but I do not want to go any further, which is why I am arguing my case. I call in aid the comments made at the time. The Minister said in the House of Commons: ""The rules have been the subject of extensive comment both in Standing Committee and elsewhere. We have introduced a cap on the income that NHS foundation trusts can earn from private patients, so that NHS patients will always come first. We have also moved to ensure that the NHS in England will not become a two-tier service"." He then went on to say: ""Let me make it clear that under clause 15(2) the regulator must impose such a restriction on the amount of private business that an NHS foundation trust can undertake. There is no question at all about that: he must exercise that provision"." Further on, he said: ""I give my hon. Friend an absolute assurance that the regulator must impose a cap on the volume of private patient activity that an NHS foundation trust is to undertake".—[Official Report, 8/7/03; col. 943-44.]" My colleagues asked about the threshold to make sure that hospitals would not go further down this route, and undertakings were given. When we came to ping-pong between the Houses, a further assurance was given by Dr Reid, who was then Secretary of State, to try to make sure that we did not have problems in the Division Lobbies in the House of Commons. In other words, this structure was based on those undertakings. This amendment challenges those undertakings. It may well be that there is an uneven playing field, but that is what Parliament decided at that time. It was on that basis that it went through. Members of Parliament must have known at that time, on the basis of the 2002 assessments, that individual trusts must have had different levels of private patient care in operation. It would have been known to them when they voted. They knew they were voting for an uneven playing field. It was on that basis that a large number of Members of Parliament abstained and many voted against it in one of the biggest rebellions in the House of Commons in the previous Parliament. It was not a full turn-out; the Lobbies were down, because many Members abstained. I have gone to my old friends in Unison, who have very strong views on these matters. They are part of the story. The noble Baroness knows their involvement in all this. I now turn to what they have said to me and what they would like me to say to the Committee, just to remind the Committee of where we are. In the event that this amendment was passed, it would simply replace the cap with a vague public interest test, which would be highly subjective and impossible to administer. Such a fundamental change would clearly run contrary to the Government’s position when they set up foundation trusts. Many foundation trusts would obviously like to increase their income from private patients, and this amendment would mean that there was no limit on the amount of money that they could take in from cash-paying private patients. The logical outcome of this amendment is a two-tier system, which normal National Health Service patients—