I am delighted to be able to follow the noble Lord, Lord Owen. He puts his finger on it. It is hard not to think that we are coming up against some rather polarised views lying behind this debate about how far we can go with the use of private providers in the NHS. On the one hand there are those who believe that private providers will drive up quality and efficiency by the competition that they introduce, and on the other those who see private providers in it for the profit that they will make from the NHS.
Clearly I cannot go into this tonight but I want to say two things. First, we have an NHS for which everyone pays through tax for the common good and which distributes resources to those who need it so that society as a whole can benefit. By opening up the NHS to private companies we are increasingly using that taxed income to provide for, among other things, their profits. When we go down that route we have to be sure that we are getting something that is worth while for society and that we have the balance right. Secondly, I have the feeling that instead of the welfare state, to which we are all signed up, being regarded for the common good, it seems to be increasingly regarded, in some quarters at least, as a cost to society and an onerous subordinate to economic policy. This is not a debate for today, although we need to have that sort of debate. It does, however, colour my views about this contentious set of regulations.
According to the wording of Regulation 5, as we have heard, commissioners are legally obliged to go out to tender unless they are satisfied that services can be provided only by a single provider. Despite the reassurances by the Minister and his colleagues, the wording here is so unambiguous that a number of distinguished lawyers tell us that there is no way out of having to tender for everything else. The fact that the Government’s lawyers are able to come up with a different conclusion, as I am sure the Minister will tell us, suggests at least that there is room for confusion and for something that would have to be tested in the court, and no doubt the courts will pray in aid the EU competition law.
I am most concerned about the problems that this tendering process will cause, as are the many organisations that have written to us. For example, if we look at where the most severe difficulties lie in the health service and try to think what tendering from a variety of providers might do to resolve them, we come up against a major barrier. It is in the care of the elderly, of those with long-term multiple illnesses and of those with mental illnesses that we are clearly failing in the NHS. Yet those are the services that private providers as well as insurers are least likely to want to take on. They are much more interested in aspects of care that come in neat packages—short-term items such as cold-planned surgery or investigation that are readily costed and charged for. But these are the sorts of care that by and large the NHS is pretty good at. It is here where the cherries lie and which private providers will try to pick, leaving longer-term care for the less glamorous, chronically ill elderly and the mentally ill to the NHS. It is not a future that many in the NHS are likely to welcome.
This says nothing about the administrative costs of this tendering and contracting, which will not be trivial. It says nothing about the barriers that it will throw up to the integration of care across several disciplines, which is already quite difficult to achieve. Will multiple providers make it easier or more difficult for integration? I cannot see it.
For these and the many other reasons that other noble Lords have raised, these regulations are a distraction designed to maximise private sector involvement and leave far too little room for commissioners to be sensible and flexible in their approach. They should be removed entirely, and if that is not possible they should be reworded to make absolutely clear to commissioners and everyone else that what Ministers are telling us is also written clearly on the tin.