Health Bill [HL]

My Lords, I support the amendment, to which I have put my name. I declare two interests. I was the Minister who moved the offending clause in the 2003 Act in this House. As I said on Report, I repent my sins. I do so again. I will explain why I differ from my noble friend Lord Campbell-Savours. First, I must declare an interest as an adviser to the General Healthcare Group, which is a private hospital. It is in no way asking me to support this amendment; I have had no conversations with the General Healthcare Group about it. I am doing this because I think that the legislation, as framed, is wrong and detrimental to the NHS. Why do I think that? First, the world has moved on since we passed the legislation in 2003. There was a different set of circumstances then. We now know that foundation trusts are an important part of the NHS landscape. They have proved very successful. If you look at the Healthcare Commission’s ratings, foundation trusts are in many ways extremely successful because of the excellence of their services and their management of financial resources. There were, if we are honest, doubts about foundation trusts at the time that this legislation was passed. Some of those doubts were expressed in the issue of a private patient cap. That is no longer the context in which we are dealing with this. The cap itself has been arbitrary. It chooses a base year when people were in different positions in terms of their private incomes. The consequence of that definition has been that whether particular trusts are caught by the cap is almost random. I do not make a major claim about this, but it has in a few cases prevented an NHS trust getting foundation trust status because its business case depended—partly because of its international reputation—on growing private practice, usually from overseas earnings that would benefit the NHS. Legislation that is supposed to protect the NHS is, in my view, damaging it. We are moving into a financial climate where the NHS—if I may put it as gently as this—will need every penny that it can get to meet public expectations, which always continue to rise in our modern world, and some of the demographic challenges that it will face. It seems a bit of an own goal to restrict the ability of NHS trusts to marshal their activities, without detriment to NHS patients, so that they can generate some income from this. My noble friends have said that the case is now under judicial review at the High Court, so it is difficult to deal with this; we should wait for the judgments and then move the legislation that may need to be put in place. I have always found that the courts welcome clarity from the Executive about what their policy intents are. This is not to prejudge the case that is before the High Court, and which was, as I recall, taken apart by UNISON. However, it would be helpful for the Government to be absolutely clear about where they stand on this issue. The issue seems to be one of making it very clear that there is a public acceptance that the present cap is arbitrary and unfair; and that there is a willingness on the part of the Government, at an appropriate time, to make changes that will make it fairer and will not stop the NHS benefiting from raising income from private patients—without detriment to NHS patients—which could provide extra income to develop NHS services. I would like much more clarity on this issue because the worst of all worlds would be a judicial judgment which is more restrictive than what we have at the moment, and that cannot be beyond peradventure. We need to be clear about the Government’s position so that we do not end up with an even more restrictive cap and no legislative opportunity to change things back, even to where we thought they were in 2003. That is why I support the amendment. I hope that we will have some reassurance from the Government on this issue.