My Lords, we have had a long debate and I know that the House will want to come to a decision very soon.
I agree with the last comment of the noble Earl, Lord Howe. These are very important regulations, although there is disagreement about what they mean when it comes to practice in the field. The essential test of the regulations is whether they accord with the assurances given by Ministers during a difficult time in getting the Bill through your Lordships’ House and the other place as to whether clinicians would be free to commission services in the way that they considered best.
The noble Earl, Lord Howe, is always reassuring and was so tonight on the content of the regulations. If you read them and the comments of your Lordships’ Scrutiny Committee, you will see that that simple statement—that clinicians will be free to commission services in the way that they wish to—has been hedged in by the product of many statutory rules contained in the regulations. When it comes to Regulation 5, there is a division of opinion between the Government and the Opposition, and between lawyers, as to what the single capable provider test means. It is arguable that the health service will be confused as to whether it can define a local service as one that can be provided only by one provider, or whether, in many parts of the country, similar services will provided by different organisations within the facility of the CCG. There will be considerable doubt whether the CCG will be able to go ahead and award a contract without some competitive tender process. That is at the heart of some of this argument.
I do not accept the idea that Monitor’s involvement will somehow prevent legal action from ending up in the courts. The general confusion about these regulations will inevitably lead to cases coming before the courts. The advice that will be given to many CCGs by their legal advisers is to act defensively and to go out to more competitive tendering than the noble Earl has suggested.
The noble Baroness, Lady Williams, and the noble Lord, Lord Walton, are of course strong supporters of the National Health Service. I say to them that every day, up and down the country, a market is unfolding in the NHS. People in the NHS believe that that is happening. They are seeing contracts already being won by the private sector. They see themselves being undercut, and they worry about the fragmentation of services and about the overall intent of the Government.
Of course the NHS is not perfect but, my goodness, it enjoys tremendous public support. I have worked with the noble Baroness, Lady Cumberlege, over many years. She referred to international comparisons. I end by referring her to the US Commonwealth Fund, which produces an evaluation of the most developed health care systems in the world. Its latest evaluation placed the UK as No. 2 overall. It placed the US, where the system of markets and competition is most to the fore, as No. 7. When people look at the NHS internationally, they see a lot of things that they wish to commend, not least of which is the integration of purpose and the support from the public. My concern is that at the end of the day I think the noble Earl is right: these regulations are vital. The problem is that they hold open the door to a competitive, marketised service in which I am afraid that, despite the wording that has been used tonight, the interests of patients will be not first but last. I wish to test the opinion of the House.