Health and Care Bill (Tenth sitting)
Tuesday 21st September 2021
(3 years, 2 months ago)
Public Bill CommitteesHealth and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 September 2021 - (21 Sep 2021)
The Committee divided: - Ayes: 5 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 8 / Noes: 5 - Question accordingly agreed to.
The Minister for Health (Edward Argar)
As I said this morning to Mrs Murray, and I will repeat this afternoon for your benefit, Mr McCabe, it is a pleasure, particularly following the reshuffle, to still be serving under your chairmanship.
Clauses 34 and 35 would allow the Secretary of State to confer the exercise of his public health functions on NHS England or integrated care boards, and would allow those functions to be further delegated or subject to other collaborative arrangements, as defined elsewhere in the Bill.
Clause 34 substitutes proposed new section 7A for the existing section 7A in the National Health Service Act 2006, originally created as part of the 2012 health and care reforms, and amending the 2006 Act. To date, section 7A has been used to support the commissioning of key national NHS public health programmes, including our world-leading screening and immunisation programmes. The Government’s intention is that it should continue to do so. These public health services are embedded within, or have a clear affinity with, local NHS delivery mechanisms—a clear example being the delivery of childhood vaccinations by general practitioners.
Proposed new section 7A fulfils the same purpose as the original, in that it enables the Secretary of State to delegate the practical exercise of his public health functions to other bodies, but it is updated to keep pace with the thrust of the Bill and enable a wider range of delegation and collaboration arrangements. Not to do so would risk leaving public health programmes behind, with unnecessary restrictions on, for example, the range of bodies that could enter collaborative arrangements. The clause also consolidates amendments to section 7A made previously by the Cities and Local Government Devolution Act 2016 in respect of inclusion of combined authorities as bodies to which the exercise of public health functions may be delegated.
In addition, to ensure that the delegation or joint exercise of functions does not lead to reduced accountability for delivering services, we have proposed appropriate safeguards that make further provision on joint working and delegation arrangements. For example, the Secretary of State will be able to set out in regulations which functions can and cannot be delegated, impose conditions in relation to the delegation or joint exercise of functions, and specify the extent of such arrangements. Furthermore, the parties will be able to agree terms regarding the scope of the delegation arrangement. NHS England will also have the ability to issue statutory guidance in relation to functions that are being delegated or jointly exercised under those provisions. Subject to those safeguards, the clause supports the aims of greater health and care integration and a focus on improving population health outcomes.
Clause 35 introduces a new power for the Secretary of State, by direction, to confer the exercise of any of his public health functions on NHS England or ICBs. The clause, again, goes with the grain of the Bill more generally in resetting the relationship between the Secretary of State, as rightly accountable to Parliament, and an enlarged NHS England with an expanded set of responsibilities, which include direct commissioning and oversight of some health services.
The Bill is moving away from a focus purely on competition, and is instead re-emphasising the value alongside it of integration and collaboration. That includes being very clear on the role that the Government have to play. To that end, there is a suite of proposals in the Bill that assert the Secretary of State’s ability to intervene, set direction and make decisions, not as a substitute for clinical expertise, but in setting that clear direction and being accountable. I suspect that, if not on these clauses, then on those we will debate in a moment, that will come to the fore in our discussions.
Clause 35 is, to an extent, illustrative of that and relates closely to, for example, clause 37’s power to direct NHS England. As the law stands, and indeed as it would stand with the changes proposed by clause 34 alone, the Secretary of State’s ability to delegate the exercise of his public health functions effectively depends on securing agreement with the body being delegated to. That arrangement has generally worked well since its inception as part of the 2012 reforms, and as far as possible the Government intend to continue to operate in that way. However, the power gives Minsters a backstop if agreement is not reached in a timely way or is unreasonably withheld. It also enables them to give clear instructions where needed or where it would be more efficient to provide a direction rather than set up a whole arrangement.
Delay and confusion can and do affect the health of those relying on public health services, so the backstop power reflects the proper relationship, as we see it, between the Secretary of State and the public health system. It also sits alongside other mechanisms, notably regulation-making powers, in relation to local government’s exercise of public health functions. However, it is important to emphasise that directions must be published as soon as practicable, and the power would, of course, have to be exercised within the normal bounds of ministerial decision making, accountability and transparency.
Furthermore, any decision to exercise the power will be premised and guided by general public law principles and in line with the Secretary of State’s general statutory duties. Those duties will of course form part of any Secretary of State’s reasoning on whether it would be appropriate to exercise the power. In particular, they would need to consider section 2A(1) of the NHS Act 2006. As such, the Government believe that clauses 34 and 35 embody a proportionate addition to the Secretary of State’s powers.
Alex Norris (Nottingham North) (Lab/Co-op)
As the Minister says, the clauses relate to public health. We might previously have anticipated that the hon. Member for Bury St Edmunds (Jo Churchill) would have fielded them, but obviously she has moved Departments. I want to take this opportunity to put on record my thanks to her for her service as Public Health Minister. We worked well together, particularly in the proceedings on the Medicines and Medical Devices Act 2021. We have disagreed over the course of our work, and that is good—disagreement is good in a democracy—but we always disagreed well. I wish her well in her new role, although I might highlight the irony that, after all the work she did in public health to reduce fizzy drinks consumption, the top of the order of business at the Department for Environment, Food and Rural Affairs at the moment is presumably trying to restore carbon dioxide supplies to get those fizzy drinks going again—I am sure she will seek for them to be sugar-free, if nothing else.
Today is also my first opportunity to formally congratulate and welcome the hon. Member for Erewash (Maggie Throup) to her new role as Public Health Minister. I have long thought that it is pretty much the best job in Government, and gives the Minister the chance to shape and improve the lives of millions, if done well. From my work with her as a near neighbour, I know that she will give the job her all. I look forward to working with her and scrutinising the work that she does.
Of course, the job of Public Health Minister has been made an awful lot harder by the preceding decade. The other day I spoke about the bill for a decade of austerity falling due, and that is manifest nowhere more than in the provision of public health services and the impact of cuts on those services. In his introduction to these clauses, the Minister characterised the legislation as protecting the status quo, but the status quo relative to where we were in 2012 is very different: public health funding for 2019-20 was down 15% on where it was prior to the changes in the 2012 Act. If we set that against a growing and ageing population and all the attendant extra spending challenges that go with that, the real-terms impact is much greater. That has meant significant cuts: a cut of nearly half for support for health at work, the place where many of us will fall sick; a cut of a quarter for NHS health checks, a core preventative tool; and a cut of a quarter for smoking cessation programmes, despite how effective they are. Of course, the areas with the greatest needs have suffered the most and experienced the greatest cuts. Those cuts do not even fall equally.
For all the talk that we hear from the Government about prevention—we see it in these proceedings, the White Paper and the Bill—the reality is that Government policy over the last decade has made things much harder for our health system by creating extra demand. That is devastating not only for those individuals who have missed out, but for the system too. There is much greater demand on our health system as a result of the decisions that we have taken, and that is sad.
We have talked a lot about the 2012 Act, and much of what we are doing in Committee is removing its provisions, because they were not very good. However, one area where there seems to be no disagreement—no suggestion from the Government or the Opposition that we might change the position—is the idea that public health should go back home to local government. That is still an area of consensus that we can build on—of course it is. It means that our excellent public health staff, spearheaded by our world-class directors, can influence not only traditional public health-type services, but the whole range of services that shape the public’s health: licensing, planning, leisure, social care and much more—all those important things our local authorities do. It is just a shame and a wasted opportunity that this period has been characterised by cuts, particularly to those with the greatest need, rather than by investment in our communities.
I shudder to think of two things. The first is the amount of time that those skilled staff have spent on what is euphemistically called “service redesign” but is actually cuts. What could that amount of wasted time have been better spent on? The second is the professionals in that field who have chosen to leave because they do not want to be part of that. That is a real shame, and has really hindered our approach to tackling public health.
The Opposition do not intend to divide the Committee on clauses 34 and 35; at the end of the day, we would much rather that public health funding was spent at a local level than at a national one. We think it will have greater impact, and frankly we can get better value from it by combining it with local services. However, I want to test the clauses a little, starting with clause 34.
What we have seen in proceedings so far—I think this is sitting 10—is that, in reality, this is not an integration Bill; it is an NHS reorganisation Bill under an integration banner. I heard the Prime Minister himself promising a further White Paper, and presumably a further Bill, on integration in the future. The Minister has said that this Bill paves the way, but this was never a paving Bill. I challenge anybody to find in the White Paper or any publication from the Government relating to this piece of legislation the word “paving”—that is, until the Minister introduced it after the Prime Minister’s rather unhelpful intervention.
We heard from the Minister himself, when explaining to the Committee why a councillor cannot chair an integrated care board, that NHS bodies do not permit councillors to do so. He is telling us that this is about NHS bodies, not about partnership bodies. These are NHS bodies; they are accountable to NHS England and they can be altered by NHS England.
It has been a settled point of public policy for the past decade that public health is delegated to local authorities, for all the good reasons I mentioned. This may well be just my understanding, but I do not want to let this clause go without testing it: proposed new subsection 7A(2) provides for the range of eligible bodies that the Secretary of State can delegate the powers to. The first is NHS England, which would make sense in the case of big, national programmes such as the ones the Minister talked about in terms of vaccination. Another is a local authority, which makes sense for all the reasons I have given.
Yet another is a combined authority, which I suspect was not a feature of the 2012 Act—I do not think, although I might be wrong, that combined authorities were yet a twinkle in a local government leader’s eye at that point. However, with a combined authority, any arrangement would surely be by the consent of its members, rather than by delegation to the combined authority itself. Combined authorities are generally skeleton structures that act as an agglomeration of interested parties, rather than significant entities in themselves, so surely a local authority would receive those powers first and then, by agreement, transfer them to combined authority level with its partners.
Finally, there is an integrated care board. What is the reason for that? If these things get delegated to local government, why would they be delegated to an NHS body? Is that not an attempt, rather than repealing the provisions in the 2012 Act that moved public health back to local authorities, to do it on a de facto basis without addressing the point? That might be an unintended consequence, so I hope the Minister will address that and say that that is not the case.
Last Thursday, we dealt with the counterpart conversation to this one. We have debated multiple times the provision for health functions of the Secretary of State or NHS England to be delegated to the integrated care boards. That is in the spirit of what this legislation is about— local decision making—but at no point was there ever a proposal for any of those functions to be delegated to a local authority or combined authority. That, again, gets to the root of the problem with this Bill, and the core reason why the Government’s frequent integration efforts stall, spin their wheels and do not go anywhere. Local authorities are not treated equally, whether that manifests in social care—a very visible inequality in our health system—or in public health, as in this case. They ought to be equal partners, but they are anything but. Again, I hope the Minister can address that issue.
Edward Argar
The shadow Minister has made a number of serious points—I am not sure how one spins the wheels when the car is stalled, but none the less I took his point. First, at the heart of this Bill is the fact that we seek to strike the appropriate balance between what is clearly a national health service, accountable to the Secretary of State and Parliament, and local flexibilities and local integration. The debate we will have for the next two hours or so will probably be about whether we have struck that balance appropriately, but that is the core of what we are seeking to do here.
The hon. Gentleman rightly talked about the importance of local authorities in this space. He and I share a common view on that, and he is right: one of the few things in the 2012 Act that I suspect he would have agreed with was the recognition of the public health function of local authorities. We are not seeking to do anything in the Bill to undermine that function in any way. It will not surprise the hon. Gentleman to know that I believe that the Bill provides for multiple layers of integration. Within a local NHS system, at an ICB level and then at an integrated care partnership level, there will be increased integration with local authorities and others, laying the foundations for the ambitious programme that the Prime Minister set out when he spoke earlier in this Session about the health and care levy.
The hon. Gentleman spoke about combined authorities. My recollection—I may be wrong—is that they date to about 2016, rather than 2012, and my understanding of the power is that it does not go against what he was saying, but provides for the continued evolution of the system and enables that delegation to take place. In practical terms, I would envisage that, where local authorities combine and work together, they would have their own arrangements, and we are not seeking to cut across those local working arrangements.
The hon. Gentleman also talked about the ICBs, saying that they are NHS bodies and asking whether this is a threat to local authority delegation of public health functions. My reading of that is that, as I mentioned in my opening remarks on these clauses, there are some public health functions that are NHS and delegated through CCGs, such as GPs participating in child immunisation programmes—hence the reference to ICBs, because they will be replacing CCGs in the new world.
Understandably, the hon. Gentleman talked about funding for public health. On his comments about the bigger picture on funding and spending levels more broadly, I simply remind him of the note left by a previous Chief Secretary to the Treasury:
“I’m afraid there is no money.”
We cannot get away from that context in this space, but more broadly he is right to highlight the importance of public health. The past 18 months have shone a light on public health; under Governments of all political complexions, public health has not always enjoyed that prominence in public debate, external media and other commentary. One thing that I hope will follow on from the terrible events we have endured over the past 18 months is a greater understanding and appreciation of public health and its measures, and for public health to enjoy the support it needs to do its job. I think all Members would agree that one of the few positives has been the recognition of the value of public health and prevention.
I think that those were the main points that the hon. Gentleman raised. I see these clauses as permitting a further evolution of the system and a recognition of the need, ideally, where we can, to further delegate powers from the Secretary of State to lower down within the system. On that basis, I hope the hon. Gentleman and his colleagues will feel able to support the clauses.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Clause 35 ordered to stand part of the Bill.
Clause 36
Power of direction: investigation functions
Justin Madders (Ellesmere Port and Neston) (Lab)
I beg to move amendment 108, in clause 36, page 42, line 33, at end insert—
“(10) Nothing in subsection (2) supersedes Part 4 of the Health and Care Act 2021.”
This amendment will ensure nothing in new section 7D of the NHS Act 2006 about the Secretary of State’s powers to direct HSSIB supersedes what is in part 4 of the Bill.
It is a pleasure to see you in the Chair, Mr McCabe, and to see the Minister back again. We heard about his increased workload this morning; I also saw him on the Treasury Bench during the urgent question. I wonder where he finds the time—he should speak to his trade union rep if he feels there are too many demands being placed on his time. We will do our best to ensure that this afternoon is as stress-free for him as possible; if he accepts our amendments, that will go some way towards enabling that.
I will not speak for long on amendment 108 because we will be talking extensively about the Healthcare Safety Investigation Branch later on in the Bill. Concerns have been expressed in briefings received by the Committee and in evidence about some of the relevant provisions in the Bill, particularly on access to information. Clause 36 looks at the proposed power over bodies that have investigatory powers, which include HSSIB. It is difficult for us to accept the clause as it stands without having gone through all the details on HSSIB, because we cannot possibly know whether our concerns will be resolved about how it will operate in practice. That is why we have put forward amendment 108.
The amendment would ensure that the powers in clause 36 do not in any way impede the important principle that HSSIB will be an independent body established by the Bill. In conjunction with further amendments, which we will no doubt get to in part 4, we can all be confident that HSSIB’s independence is sacrosanct. That is important for not just us as parliamentarians, but everyone within the NHS who may have reason to come across HSSIB. It is also important for patients, of course, because they will ultimately be the judges of whether HSSIB has been a success. It would be helpful to understand what the approach will be in relation to maternity investigations. HSSIB has a potentially important role in identifying how providers can sustainably and systematically improve the quality of such investigations and then provide appropriate support. However, ensuring proper accountability, clarity and independence remain important, and this amendment seeks to ensure that those matters are enshrined on the face of the Bill.
Edward Argar
I am grateful to the hon. Gentleman; I made it in rather slower time down to the Chamber to listen to the statement. After one of our sittings last week, I think the hon. Member for Nottingham North was on his feet asking a question in the Chamber before I had even made it out of this room, which shows a certain speed that I can only seek to emulate.
I appreciate that the amendment is linked to the independence of the Health Services Safety Investigation Body. The Government are clear that HSSIB will be independent, which is why it is being set up as a non-departmental public body, with a chief executive—to be known as the chief investigator—and executive and non-executive members. I hope I can reassure hon. Members that clause 36 is a temporary measure to ensure that the current Healthcare Safety Investigation Branch can continue to exist in the interim phase before the new body is established.
As I am sure hon. Members are aware, the merger of NHS England and NHS Improvement means that the NHS Trust Development Authority, of which the Healthcare Safety Investigation Branch is a part, will be abolished. We need the important investigation function that the Healthcare Safety Investigation Branch provides to continue until HSSIB is fully operational which, subject to parliamentary approval, is planned for spring 2023.
The power set out in clause 36 is designed to enable the Secretary of State to direct NHS England, or another public body, to carry out the investigation function in the interim period. I reassure hon. Members that the HSSIB will be independent. Clause 36 is not designed to infringe upon its independence and cannot be used to direct the new HSSIB in how it exercises its functions; it is there simply to ensure the continuity of current investigations until the 2023 start date. For those reasons, I ask the hon. Member for Ellesmere Port and Neston to consider not pressing the amendment to a vote.
Justin Madders
I am reassured to some extent by the Minister’s words, but we have seen over the past 18 months that temporary powers do have a habit of becoming rather more permanent than was originally intended. I think it would be perfectly possible for the Government to include some sort of sunset clause to ensure that the intentions set out by the Minister are adhered to, but we may come back to that. As things stand, we maintain our criticisms, and it would be remiss of us not to push this matter to a vote.
Question put, That the amendment be made.
Edward Argar
I will be brief, because I believe that in responding to the shadow Minister’s amendment I set out the intentions behind the clause and the reasons why it is drafted as it is. Notwithstanding his desire to push his amendment to vote, all I can say is that I will continue to reflect on the points he has made. I cannot promise the outcome, but I will reflect on what he said. Having made the case when I addressed the amendment, I commend the clause to the Committee.
Question put and agreed to.
Clause 36 accordingly ordered to stand part of the Bill.
Clause 37
General power to direct NHS England
Question proposed, That the clause stand part of the Bill.
Edward Argar
I suspect that, with this, we get to the main event of this afternoon’s proceedings.
I begin with clause 37, which introduces powers for the Secretary of State to give directions to the newly merged NHS England. This merger, which is widely welcomed, of three different bodies with different accountability arrangements into one has inevitably required us to look at the appropriate accountability arrangements for the future, and the extent to which the accountability arrangements have evolved and kept up with the evolution of the organisation. The powers in the clause will ensure the appropriate balance between democratic accountability to the Secretary of State and the NHS’s clinical and day-to-day operational independence.
Clause 37 will give the Secretary of State new powers over a newly merged and larger NHS England. It does not give the Secretary of State any new powers over other NHS bodies. It gives the Secretary of State precisely no new powers over clinical decisions. The clause is about ensuring appropriate accountability mechanisms between the democratically elected Government and one of the biggest arm’s length bodies, if not the biggest. That is a principle of democratic accountability in a publicly funded national healthcare service, and I am sure it is accepted not just by the leadership of NHS England, but by Opposition Members, even if they may not feel that the clause reflects their interpretation of it.
In practice, NHS England will continue, as now, to make the vast majority of its decisions without direction, consulting the Government and others as it needs to. The Government’s primary means of shaping the NHS agenda continues to be the mandate to NHS England, which has been an established means of providing direction to NHS England since 2013.
As we have learned in recent times, events can move fast, and the mandate may not be adaptable to all circumstances—and nor was it designed to be when it was conceived. The powers in the clause are designed to supplement the existing mechanisms, such as the mandate, to give the Secretary of State the ability, where he or she deems it appropriate and in the public interest, to provide direction and to intervene in relation to NHS England’s functions. Of course, the Department’s title is “Health and Social Care”, and while NHS England will rightly continue to be focused on the NHS, the Government must take a wider view—and this wider view may lead us, on occasion, to a different conclusion about the appropriate course of action from that held by NHS England colleagues.
There is already a strong and close working relationship between Ministers and NHS England. The clause helps to formalise that in a way that is more transparent for everyone to see, building in the normal expectations of ministerial decision making and accountability by requiring Ministers to issue directions in writing, and to ensure they are published and made in the public interest. Any decision to exercise this power will be premised and guided by general public law principles and broader statutory duties.
To ensure the NHS’s continued clinical and day-to-day operational independence, proposed new section 13ZD also sets out specific areas where the power of direction in section 13ZC cannot be used. The Secretary of State is unable to use this power to intervene in the appointment of individuals by NHS England, in individual clinical decisions or in relation to drugs or treatments that the National Institute for Health and Care Excellence has not recommended or issued guidance on.
We believe that clause 37 is crucial for ensuring that we have the right framework for national oversight and accountability of our health system, and of one of the largest arm’s length bodies, responsible for over £130 billion of public money. The clause ensures, in proposed new section 13ZE, that appropriate levers are in place—as there are for other arm’s length bodies—for Ministers to respond and take swift action if NHS England fails to carry out any of its functions. It also ensures, in proposed new section 13ZF, that Ministers have the levers they need to direct NHS England to provide information. Without it, we would be expanding the functions, responsibilities and powers of NHS England without ensuring that there are appropriate accountability arrangements in place for this large integrated body.
The changes that clause 37 introduced are proportionate, in our view. They reflect the evolution of NHS England in recent years, changes to the wider system and the appropriate expectations on Government to support, challenge and steer the system, while also leaving it free to determine operational matters.
Clause 62 amends the National Health Service Act 2006 by repealing the duty on the Secretary of State and NHS England to promote autonomy. The rationale for doing so comes is two parts. First, the response to the pandemic has further highlighted the importance of different parts of the health and care system working together in the best interests of public and patients. By repealing the duty to promote autonomy, the clause further enshrines integration and collaboration at the heart of the legislative framework underpinning the system.
The second reason for repealing that duty is to ensure compatibility with the duties elsewhere in the Bill on NHS organisations, including NHS England, to consider the effects of their decisions on the better health and wellbeing of everyone, equality of care for patients and the sustainable use of NHS resources. To avoid any conflict in duties, it is important to remove NHS England’s duty of autonomy, as these new duties require NHS England to co-operate and work closely with other partners, rather than autonomously. Repealing the duty of autonomy will also make it easier for NHS England to facilitate co-operation within the system—when commissioning services or issuing guidance, for example.
Neither the provisions in clause 37 nor those in clause 62, or indeed anywhere else in the Bill, do anything to change the nature of NHS England as an arm’s length body. I hope that I can reassure the hon. Member—I fear that I may not—that the removal of these duties does not mean that Ministers are about to start interfering in the NHS or in any other body exercising functions relating to the health service.
Integration is at the heart of the Bill. By creating integrated care boards and removing unnecessary bureaucracy that can get in the way of local organisations wanting to work together, we are putting more power and autonomy in the hands of local systems, and that is our intention here. We are seeking to strengthen local leadership and empower local organisations to make decisions about their populations. We believe that both clauses not only support that intention, but strengthen it, and I commend them to the Committee.
Alex Norris
The Minister rightly pointed out my mixed metaphor, so I will undertake to avoid metaphors in this contribution. It is hard not to feel like an undercard to the main event here—that is a simile, of course, rather than a metaphor, and I gave no such undertaking on similes.
I might surprise the Minister by agreeing with bits of what he said: we do not intend to divide the Committee on clause 37 and we do think that there is an important distinction between the powers in clauses 37 and 38, which I think will come out in the debate. However, if we went out to Parliament Square now and straw-polled people walking by, asking them who they thought was responsible for the NHS in England at a national level, I think we would wait a very long time before anyone gave any answer other than the Government and, by extension, the Secretary of State.
Alex Norris
And of course the Minister, through appropriate delegation, and we are all the better for it. The Minister can quote me on that—but not on a political leaflet, as that would be very challenging for me.
Covid has shown that the public think that the politicians they elect are accountable for the decisions taken in the interests of their health, however they might manifest in ordinary life, so I think the repeal of the duty to promote autonomy, set out in clause 62, probably follows inevitably from that. We want an expert-run health service that works together and follows the best available evidence and science, not one that is unaccountable and diverges from the interests and expectations of the public at large.
That leads me nicely to clause 37. It is possibly a tautology to say that if someone is held responsible for something, they ought to have responsibility for it, as the clause set outs. To put that bluntly, with more than £100 billion of spending—40% of the Government’s revenue budget—going into that area, people will expect political accountability. If NHS England is not seen to be acting in the public interest at the highest possible levels, there ought to be a mechanism, by exception, to correct that. It is the exceptional part that is really important.
That is defined negatively in the clause by what the Secretary of State may not do—for example, hiring or firing an individual, which I think is right, or directing the healthcare of a specific person. I do not think the Secretary of State would want to be in that position with important cases of individuals who are in the public sphere, or have the ability to act outside NICE guidelines on drugs or treatment, as happens in such cases. I do not think that is a good system, hard though it may be when prominent cases come to our attention.
That gives us a common-sense reading of what these clauses provide for the Secretary of State. Yes, the buck stops with the Secretary of State and his political colleagues as a collective if there are major failings in the health service or major failings of Government and of leadership, but the clause does not give Ministers carte blanche to pick and choose—undoubtedly with political pressures in mind—whether to involve themselves in the detailed running of the service. I think that will be covered in clause 38.
A concern raised by the Nuffield Trust in evidence was that there should be a stronger mechanism by which such decisions can be scrutinised. Will the Minister address that? I heard what he said about publication of information about the Secretary of State’s decisions, but why not provide for a parliamentary mechanism by which decisions could be scrutinised? That would ensure public confidence that there is no Executive overreach or direction at a low level of how our healthcare service operates, which I do not think would be at all desirable. I hope that the Minister will address that in his remarks.
Karin Smyth (Bristol South) (Lab)
I would like the Committee to take a moment to mourn the loss of the principle of autonomy as a guiding driver of the health service over some 20-plus years. That principle is part not just of the Lansley reforms, but of previous Labour reforms, and indeed of reforms by the Government before that. The idea was that the system would become more efficient and responsive with more autonomous units, rather than a great mass of health authorities, hospitals and systems that are rarely understood by local people, and that the competition of autonomous units would drive financial and service efficiency, for example. This is quite a moment, and I do not think we should just let it pass.
When I was a member of a primary care trust, which I may have shared earlier, our local region had “earned autonomy.” That meant that if we did certain things particularly well—bringing waiting times and waiting lists down, or fulfilling financial balance requirements, for example—the local team, board and chief executive would earn more autonomy to do more. In modern parlance, things became more permissive, and they were trusted to do something.
Justin Madders
I am a little confused, because my hon. Friend is talking about the end of autonomy, but everything we have heard from the Government is about how permissive the Bill is and how it will leave people free to make their own decisions. I must be missing the point somewhere, mustn’t I?
Karin Smyth
I am grateful to my hon. Friend for making that point, which we will come on to when we discuss the following clauses. If there is no autonomy, but we are trying to be permissive, we come back to the vexed issue that the Minister alluded to earlier: where the balance lies between national and local accountability. We will come to that in further clauses.
I will not long mourn the loss of autonomy—I am not sure it really worked—but it is a principle for people to locally manage the units. As I said in relation to financial management in a previous session, if it is very clear that a chief executive or a finance director has responsibility for their bottom line, that drives a certain amount of focus and responsibility. I find it a little extraordinary for the Conservative party to be promoting the lack of autonomy. I hope hon. Members will take a moment to reflect on the seismic change we now have in the direction of our public services and the next era of the NHS.
Edward Argar
There are a few points that I will seek to address. I am grateful to the hon. Member for Nottingham North for highlighting the accountability of the Secretary of State—he also highlighted me. I remind colleagues that in my ministerial capacity, as a junior Minister, I am in legal terms but an extension of my Secretary of State; all the powers are vested in him and I am but a legal extension of him. Colleagues may dwell on that as they wish, but possibly not too much.
The hon. Member for Nottingham North set it out well. If we went out into Parliament Square and asked three dozen people who they believe is accountable for the NHS and the delivery of health services in this country, they would say it was the Government, or possibly the Secretary of State or the Prime Minister. I think that is right, and that is why we must ensure that the accountability is reflected in the responsibility and the ability to exercise that responsibility and accountability over how the NHS operates.
On the promotion of autonomy, as the hon. Member for Nottingham North alluded to and as I set out, if we are seeking to promote integration and co-operation, as the Bill does, that therefore sits slightly ill with a duty to promote autonomy, and this is about how we reconcile those two matters in legislative language. He talked about a parliamentary mechanism in this context. I emphasise the need for the directions to be published in writing and to be in the public interest.
As we know, such documents are always able to be debated in the House. Were something to be done that he thought inappropriate, I can bet my bottom dollar that I would be standing at the Dispatch Box answering an urgent question from him 24 or 48 hours later. There are mechanisms in this House by which Ministers can be held to account for decisions they make. That is why I believe that this move aids transparency. Rather than informal conversations and discussions, as happen in any organisation, the clause will require that, where a disagreement occurs, there is a clear direction for it to be published transparently, for shadow Ministers and others in this House to question and challenge it, or to raise, within or outwith the House, their concerns in front of the public.
The hon. Member for Bristol South quite rightly alluded to how PCTs operated. Like her, I sat as a non-executive member of a PCT board. I remember those days. If I remember correctly, not only did she sit on a board; she also has extensive experience in running healthcare services as a senior leadership figure within the local NHS, so she knows of what she speaks.
I do not think that what we are seeing here is quite as the hon. Lady characterises—a huge change in the direction of our party’s policy or the direction of travel. We are putting in place a pragmatic and sensible measure, to reflect the focus now on a duty to co-operate, which a duty of autonomy sits slightly ill with, as I say, and to make sure that we have clear accountabilities. We recognise in theory and in legislation what is already deemed by the public to be there in reality, which is the accountability of the Secretary of State and the Government.
Question put and agreed to.
Clause 37 accordingly ordered to stand part of the Bill.
Clause 38
Reconfiguration of services: intervention powers
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Amendment 102, in schedule 6, page 180, line 12, at end insert—
“relevant Health Overview & Scrutiny Committee” means any Health Overview and Scrutiny Committee in an area to which the proposal for a reconfiguration of NHS services relates.”.
This amendment is consequential on Amendment 103.
Amendment 103, in schedule 6, page 180, line 41, at end insert—
“(3A) Before taking a decision under sub-paragraph (2)(a), the Secretary of State must—
(a) consult all relevant Health Overview & Scrutiny Committees, and
(b) have regard to, and publish, clinical advice from the Integrated Care Board’s Medical Director.”.
This amendment would require the Secretary of State to consult any relevant Health Overview and Scrutiny Committee (as defined by Amendment 102), and to have regard to and publish clinical advice from the ICB Medical Director, before intervening in local service reconfiguration.
Amendment 104, in schedule 6, page 180, line 43, at end insert—
“(aa) publish a statement demonstrating that the decision is in the public interest,”.
This amendment would require the Secretary of State to publish a statement demonstrating that any decision they have made on a reconfiguration proposal is in the public interest.
That schedule 6 be the Sixth schedule to the Bill.
Edward Argar
If I may, I will turn to the amendments first and then the substantive clause. I am grateful to hon. Members for tabling the amendments. I said that the previous clause was coming to the main business of the afternoon, but I now suspect that was but an hors d’oeuvre to the discussion we may have on this clause and this set of amendments.
Amendments 102 and 103 would require the Secretary of State to consult all relevant health overview and scrutiny committees before making a decision on a reconfiguration. Amendment 103 would also require the Secretary of State to have regard to, and publish, clinical advice from the ICB’s medical director. It is of course vital that local views are represented in any reconfiguration. However, although I understand the rationale behind these amendments, I do not think they are strictly necessary. The new power will not replace the important role that local scrutiny and engagement plays in service change decisions; we expect the vast majority of reconfiguration decisions to continue to be managed by the local system, and system players will be encouraged to resolve matters locally where possible.
The Secretary of State will continue to be advised by the Independent Reconfiguration Panel, which is being retained. The focus of the IRP is and will continue to be the patient and quality of care in the context of safe, sustainable and accessible services for local people. It has also provided the system with advice based on its experience to date around critical success factors.
If I may go down a slight rabbit hole here, I would like to put on the record my appreciation for the work of the IRP. Certainly during my tenure in this post, I have consulted it and seen its advice on a number of occasions, and I am grateful for the work its staff do, the speed with which they do it and the benefit I have gained from that advice in making decisions or advising the Secretary of State on particular decisions.
In practice, the Secretary of State will always need to seek appropriate advice from clinicians, local leaders or other experts before making any decision, and all decisions made using the powers inserted by clause 38 and schedule 6 must be published. This will ensure transparency and allow for proper scrutiny of the way the power is being used.
Schedule 6 also includes the requirement for NHS commissioning bodies, including integrated care boards, to give the Secretary of State any information or other assistance required to carry out any functions under the schedule. It is envisioned that the Secretary of State will obtain information from NHS commissioning bodies when making reconfiguration decisions. This will include any representations that an HOSC, stakeholder, patient group or any other interested party have made, if applicable.
All decision making on reconfigurations, at both local and ministerial level, will continue to be guided by the four tests laid out in existing guidance that reconfiguration should be assured against: strong public and patient engagement; consistency with current and prospective need for patient choice; a clear clinical evidence base; and support for proposals from clinical commissioners.
As such, we believe that clause 38 and the guidance that the Secretary of State is required to produce under the powers in schedule 6 will provide sufficient safeguards to ensure that the Secretary of State receives appropriate advice before using the powers in this clause. As a result of not accepting amendment 103, we will also resist amendment 102, which is consequential on amendment 103.
Amendment 104 would require the Secretary of State to publish, alongside any decision they have made under this provision, a statement demonstrating that the decision is in the public interest. The Secretary of State is accountable to Parliament for all his or her decisions. Ministers are expected, as a core principle of the constitution, to act in the public interest, and this is reflected in the ministerial code. In addition, the Secretary of State’s scrutiny and direction-making process on this and any other matter must already take into account the public law decision-making principles, all relevant information and their legal duties, including the public sector equality duty, that adhere to such decisions.
The Secretary of State is also under a number of duties set out in the National Health Service Act 2006, including a duty to promote a comprehensive health service, to secure continuous improvement in quality of services, and to have regard to the NHS constitution. As I have already set out, the Secretary of State will continue to be advised by the IRP, and will seek appropriate advice from clinicians, local leaders or other experts.
As for paragraph 4 of schedule 6, the Secretary of State already has a duty to publish any decision they make on a reconfiguration and to notify the NHS commissioning body of the decision. For those reasons, I urge the hon. Member for Nottingham North to withdraw his amendment—I suspect that I will be unsuccessful in that plea, but I make it none the less.
I will now address clause 38 and schedule 6. The clause inserts proposed new section 68A and proposed new schedule 10A into the National Health Service Act 2006. It also introduces schedule 6, which includes a new intervention power to allow the Secretary of State to call in a reconfiguration of NHS services at any stage of the process, without the need for a referral from a local authority. A reconfiguration of NHS services is a change in service provision that has an impact on the manner in which a service is delivered at the point at which the service is received by the user, or the range of health services available to individuals. That could be, for example, a change in where a mental health in-patient unit is based, building a new stroke unit, or restructuring a whole hospital trust.
The new intervention power will enable the Secretary of State to act as a scrutineer and decision maker for reconfigurations, to intervene where, for example, they can see a critical benefit or cost to taking one or other course of action, or to take action where there is significant cause for public concern. We do not expect or intend to use the power with any regularity, and where it is used, it will be done so transparently. As I have emphasised, the Secretary of State must publish any decisions made about reconfigurations.
Schedule 6 sets out the scope of the reconfiguration powers as they pertain to NHS commissioning bodies, NHS services, NHS trusts and foundation trusts. It introduces a new duty for the relevant NHS bodies to notify the Secretary of State of any proposed or likely reconfiguration. The Secretary of State will be able to take any decision that could have been taken by the NHS commissioning body. That includes the ability for the Secretary of State to decide whether a proposal should proceed, the results the NHS commissioning body should achieve, and the procedural steps that should be taken. As I set out earlier, decision making will continue to be guided by the four reconfigurations tests. The new power will not replace the important role that local scrutiny and engagement play in service change decisions.
As the shadow Minister set out, the public expect Ministers to be accountable for the health service, which includes reconfigurations of it. The clause ensures that decisions made in the NHS that affect all our constituents are subject to democratic oversight. Without it, the Secretary of State’s ability to intervene and take decisions will remain limited, often coming at the end of a long local process. As now, he would not be alerted to a potential change in services until the change became an issue and he would remain powerless to intervene without a formal referral by a local authority.
I am conscious that that existing arrangement satisfies few in Parliament, including Opposition Members, on the occasions when they make representations about the process. However, it will be for this debate to see whether Members feel that the proposed new arrangement satisfies them—I will not prejudge that for a minute, looking at the faces of the Opposition Members. I therefore commend clause 38 and schedule 6 to the Committee.
Justin Madders
I congratulate the Minister on his valiant attempts to defend the powers that he wishes the clause and schedule 6 to give his boss.
The Opposition are pretty realistic and do not think that the clause will survive the parliamentary process in its current form. It would save a lot of time if the Minister was to indicate now that he had taken note of the many concerns expressed and that things will change. However, as the clause remains on the face of the Bill, we will have to go through the long and important reasons why it will not be able to stand in its existing form. The Minister will continue to defend the indefensible until it no longer needs to be defended.
We have heard evidence as to why the powers in the clause are not needed and, indeed, why the Secretary of State would not want such powers. Again, we are trying to help the Minister and his Department out by pointing out some of the pitfalls. The clause really is the total antithesis of everything this Bill is supposed to be. The Minister has told us many times that he wants to take a permissive approach, but the truth, as exposed by this clause, is that being permissive is okay until it is not, and then we have the power grab, the micromanagement and the sound of bedpans dropping all the way up to the Secretary of State’s desk. That is the logical conclusion of the clause.
Chris Skidmore (Kingswood) (Con)
I want to speak generally to the clause and the schedule, rather than in support of any amendments. I thank the Minister for setting out the continued role of the IRP and the four tests that have been put in place. I am sure that all of us on the Committee have at some stage in our local communities faced a healthcare service reorganisation. They are very painful processes, as the hon. Member for Bristol South will recognise. We had a reconfiguration across both trusts in Bristol that began, I think, in around 2004 and has yet to be properly completed. They are incredibly painful processes that can leave local communities feeling disaffected and disempowered, whoever is taking the final decision.
We need to think carefully about the potential unintended consequences of the schedule as it stands. I have not tabled any amendments; I just want to raise potential concerns about the detail. In Bristol and south Gloucestershire, Cossham Hospital was provided to the local community by Handel Cossham, who was the Member of Parliament at the time for the east and south Bristol region. He was the only Member of Parliament who, I think, technically died in the Palace; he collapsed in the House of Commons Library and died of a heart attack. I think in those days they could not even claim that he had somehow survived.
Handel Cossham donated in his will land to the people of Kingswood, on which they built Cossham Hospital, named after him. Even before the NHS came into creation, therefore, Cossham Hospital was there, having been built in 1905. The local people of Kingswood, even though it sits in the Bristol East constituency now, felt very passionately that this was their hospital; it was not the NHS hospital. Yet there was a proposal to close Cossham Hospital, which was then reversed. In consequence, the decision was taken to close Frenchay Hospital in favour of a new hospital in Southmead. Frenchay Hospital was meant to become a community hospital, but a U-turn was taken by the healthcare authorities at the time—the clinical care commissioning groups and North Bristol Trust, which squabbled over who was in control because the land had been handed over from North Bristol to the CCG.
I benefited, when I was elected in 2010, from the “Save Cossham Hospital” campaign, which saw the very good Labour MP lose his seat. I faced battles when there were promises to put a minor injuries unit into Cossham Hospital and then there was another U-turn. Ultimately, no one has been held properly accountable, but the IRP published a report that demonstrated that North Bristol Trust had neglected its duty to communicate effectively with the public.
It is that element of communication with the public that I want to talk about in relation to schedule 6, because I have concerns. I agree with the Minister about removing the control of the health overview and scrutiny committees, because they became toxic platforms for councillors, who suddenly had to take decisions as local authority members. They did not know anything about them; all they knew was that their seats were at risk, so the committees were becoming highly politicised forums. People were turning up to the councils and demanding that councillors referred things to the IRP.
Perhaps the Minister can comment a bit more about the nature of who is doing the referral and who is contacting the Secretary of State, because the Secretary of State will not necessarily be aware of all the reconfiguration decisions. Who is the active agent who is making the referral to the Secretary of State? Will it be a councillor, a member of the public or a Member of Parliament? My worry is that when we get to election time, the Secretary of State becomes a lightning conductor, and this will electrify decisions. For new colleagues in marginal seats in the red wall, this could be one of the decisions that creates the dynamic by which the general election is fought on various reconfigurations. The Opposition will claim that it is the Secretary of State’s responsibility to deal with the matter and that he has let down local communities. That is the dynamic and toxic discussions that we have to avoid, if the provision comes into play.
I agree that the Secretary of State needs to have more information to hand and the ability to make decisions, but I am concerned about the definition in schedule 6, which states that
“‘reconfiguration of NHS services’ means a change in the arrangements made by an NHS commissioning body…that…has an impact on—
(a) the manner in which a service is delivered to individuals (at the point when the service is received by users), or
(b) the range of health services available to individuals.”
That is so broad that it could include the tiniest change. Mr Jones, a constituent of mine, might say, “Actually, this has impacted on my local provision of healthcare services for me. I want you to start a petition to the Secretary of State to change this.” I wonder whether there could be some conditionality placed within the definition that might touch on an overwhelming community interest, or something that might touch on the detriment of patient outcomes.
I believe that when we make reconfigurations, they are not necessarily done for financial reasons. They are done to deliver better patient outcomes, so we have to find a way for all political parties to demonstrate that when we put trust in professionals to take decisions, they are doing so because they recognise that there are ways in which reconfigurations can lead to better patient outcomes. We have to be able to move people in that journey. It is not just about the money when it comes to reconfigurations, and I understand that. As political leaders, it is worth supporting clinical decisions when they are the right ones for the benefit of patient outcomes, even if they are difficult decisions for us to take. Some reflection of that in the definition of “reconfiguration of NHS services” would be welcome.
Ultimately, it will come down to guidance, which is why the section on guidance is important. The Minister has mentioned guidance being published. Currently, paragraph 8 of schedule 6 only says:
“The Secretary of State must publish guidance for NHS commissioning bodies, NHS trusts and NHS foundation trusts.”
I think we would all really welcome that guidance being extended to the local authority’s health overview and scrutiny committee, so that it can understand what role it is playing within this fiery dynamic.
What we really need to do with the clause is ensure that members of the general public understand what the duties and responsibilities of the Secretary of State are to any reconfiguration, and that they are set out very clearly to start with. Once we start going down the journey of a petition being collected, it gathers steam and therefore becomes a campaign. Suddenly, rather than having the Department of Health and Social Care, we have a new Department called the Department of Health and Reconfiguration Services, which is what we need to avoid. For the sake of the public and the community, we have to be able to demonstrate that reconfigurations will happen—that is the nature of the NHS. Decisions need to be taken when the facts change and the clinical outcomes change, and I recognise that fact. However, we have seen flip-flopping in Bristol eroding public trust. We need to ensure that, from the outset, people understand why the Secretary of State has these powers and the conditions under which he can take decisions, working with the IRP. We would welcome guidance, potentially for Members of Parliament and local authority members, so they are able to have advance conversations when constituents come to them saying, “I want you now to refer this to the Secretary of State” or “I’ve got a petition of 10 people who want to refer this to the Secretary of State.” They will then know exactly the context in which they can consult the Departments.
Those are the only points I want to make. I am not here to support any of the amendments, although I support the clause. I wanted to reflect on things that might be added in order to break down the granularity of detail, provide wider community context and make sure the public understand where the Secretary of State sits in this potential conversation around reconfiguration.
Karin Smyth
It is a pleasure to follow the right hon. Member for Kingswood. I feel the need for us to write a book or a pamphlet about the planned reconfiguration of health services in Bristol from my time on the board. I agree with a lot of what he said about the Kingswood-Frenchay area, but I hold the reconfiguration up as a good example of wider consultation, clinical leadership and patient and public involvement.
Some of the messiness we got into reflected healthy discussion of the issues. As he said, we are still going through the process, but at the end of those long days we managed to build two very good, specialised hospitals, particularly around A&E services, and therefore close an A&E service. Although not a clinician, I had lots of work in the Frenchay area at the time and it was a terrible place to work and deliver clinical services, having been built as temporary wartime provision, although it was much loved by local people. That is something we might reflect on at another time. The process continues. We have just closed the consultation on stroke services, and other good services, including primary community care services, have come about as a result of the reconfiguration. Reducing a hospital base from three to two is a major exercise, but it did happen.
The points made by the right hon. Gentleman were well made, as were those made by my hon. Friend the Member for Ellesmere Port and Neston. We could play good cop, bad cop, because I am disappointed that the Minister is not taking the very helpful hands that I have offered to find more ways around this, rather than saying that we just want to see the whole lot come out. It will come out eventually—I think we all know that—but along the way let us put some helpful things in place.
My amendments deal with health overview and scrutiny committees and clinical advice. I will not press them to a vote, but I would like the Minister to address them. I think they might appear in similar form in other places, at other times, so what we say is important.
The Government need to account for where and how they are going to get their clinical advice. Reconfigurations, both large and small, are important to local people, as hon. Members have said. The Cossham example is a good one. Some of those buildings do not belong to the NHS. They belong to local communities and pre-date the NHS. People love buildings and their associations. As we embrace technology, we can see that people like buildings because they are something they can grab hold of and understand.
Clinicians—and clinical advice about change—are crucial in allowing and facilitating change. As with politicians, if there are three clinicians in the room then often there will not be one single answer. The issues about what we should be moving towards are often not black and white. The whole vexed issue around the tests and where clinical advice comes from is problematic for the Government and the Secretary of State.
As my hon. Friends have said, the national clinical advisory team did independent reviews, and then that disappeared. We have looked at clinical senates. The Lansley test, which has been alluded to, wanted clarity about a clinical evidence base. In order to provide such clarity, a lot of clinicians need to come together, across specialities and across primary and secondary care, to agree and to then go and talk to the public, to make people understand why and when they are putting forward their propositions.
The timing is interesting, because the test assumed the support of GP commissioners. In this new world, there is no clinical leadership of these new bodies; they are managerially led. Some of the managers might be clinicians, but when the tests were established—this was also true of primary care trusts—the previous bodies in their previous incarnations were largely clinically led. We may dispute whether that was in actuality, whether those people were acting as clinicians, what sort of clinicians they were, whether they were clinicians in the field of the service reconfiguration we were talking about and so on, but that is an important point in terms of trust with the general public.
The new bodies are not clinically led. In my amendment, I suggest the ICB medical director, but that will be a pretty tall order for the ICB medical director even in my amendments. They are also supposed genuinely to promote patient choice. We talked earlier about the removal of autonomy, and what we are seeking to do in many of our amendments to the Bill is to put back the voice of the patient somewhere in this permissive integration world.
The other test was generally to enjoy public, patient and local authority support. While poor old Lord Lansley is not getting much praise in these meetings, some sort of provision for tests with the public, local authorities and clinicians, recognising the complexity that has been outlined particularly well by the right hon. Member for Kingswood, still living through some of this, is well made.
I do not think the Secretary of State for Health and Social Care wants all this on his desk. In my time in this place I have watched with great interest, as I am sure we all have, as hon. Members across Cornwall, Devon, Dorset, Gloucestershire and all across the south-west have all risen at various times to bring up the issue of their community hospital, their A&E and various other services in their part of the country. Those issues are keenly felt and will all need consideration. Somebody—largely clinicians, and then other managerial people in those bodies—will have to sift out those processes.
What is alarming people, as we heard in evidence from our excellent witnesses—my hon. Friend the Member for Ellesmere Port and Neston outlined the key arguments—is that there is a gap. Who is filling it? How is it being filled? That is not just about process; it is about serious clinical engagement. That is why the Minister would be wise to pick up some of the helpful amendments that have been tabled, to alter this; otherwise it disappears completely. I think it was Nigel Edwards from the Nuffield Trust who said it is working pretty well at the moment.
We will all have our points in time where we disagree with things, and we will all want to bring in something else. That is partly our role as elected representatives, and I know the NHS does not like politics and politicians getting involved in these things sometimes, but it is the job of local representatives, whether local councillors or local Members of Parliament, to articulate on behalf of their constituents, to understand the debates and issues, to mediate them and certainly to challenge clinicians and managers of all types on the veracity of the proposals they put through.
The other thing I have said publicly is that sometimes the evidence put forward is not as robust as it should be. That external local scrutiny is well served by those of us who take a strong interest and ensure that the veracity of that information is solid. I have been able to go back to constituents—it is a brave politician who goes back to a constituent to say, “No, actually, I think we need to close that A&E,” but frankly, as we have seen from various reconfigurations across the country, at times that saves lives and is the right thing to do. Giving people locally the support to articulate that is also important.
Edward Argar
I fear we may not have consensus in Committee at this point, but none the less I will endeavour to answer some of the points raised. I am always grateful to the shadow Minister for his kind offers of help and assistance, and he will know that I always reflect carefully on the evidence we have heard and on the opinions of hon. Members on both sides of the House. I welcome his welcoming of the publication of the impact assessment in time for him to be able to quote it back at me. Finally, I thank him for his heartfelt and kindly offer of alternative approaches, given his concern for my workload were these proposals to be approved. I am touched on a number of levels by that, and equally by his suggestion that I and others have been engaged in the dark arts of spin—heaven forbid.
In the context of clause 38 and these amendments, right hon. and hon. Members, including my right hon. Friend the Member for Kingswood, have raised a number of important points that bear further reflection. As we have said throughout this process, the challenge with this Bill is striking the right balance between being permissive and ensuring accountability at a national level, and we believe this clause plays a key part in doing so. I disagree with the shadow Minister’s view—although I respect it—that the clause does not strike the right balance, and I do not believe that the powers set out in it are disproportionate, as he has suggested. He has highlighted the role of the IRP. I mentioned my gratitude for its work in my opening remarks, and I was very clear that that work will continue. The IRP will continue to give the valuable advice it has given thus far.
I do not believe that the notification requirements will prove unduly onerous: a notification can be a very simple process. To the shadow Minister’s point about timeliness, process and definitions, we are working very closely with the NHS and other partners to produce guidance that will set out clear expectations about how and when the powers will be used, and how they will be exercised. In his remarks, he touched on a concern that Ministers might be beset by lobbying from the public and others. I would argue that such lobbying would clearly point to greater public engagement with such matters and increased transparency, which are things that we might welcome. For fear of upsetting my hon. Friend the Whip, the Member for St Austell and Newquay, I will pass over the invitation that the shadow Minister and others have extended to my colleagues on the Government Benches to break the Whip. I saw the expression on my hon. Friend’s face when that was suggested, so I strongly discourage any of my right hon. or hon. Friends from contemplating that course of action. Even though a reshuffle has only just happened, there is always another one at some point.
The shadow Minister mentioned the Health Service Journal, which I enjoy reading. All I would say is that we continue to engage with a wide range of stakeholders, as we have done throughout the process. Indeed, I think that in her evidence, Dame Gill Morgan highlighted the collaborative nature of the genesis of this Bill. I intend to continue with an open and transparent approach, discussing with colleagues and engaging with them and others, because we know that we can always learn by listening.
Justin Madders
I am finding the Minister’s response very entertaining, but he really does need to tell us exactly what is wrong with the current system that this Bill is going to fix.
Edward Argar
I will come to the shadow Minister’s point, but I just want to get through the points he made earlier in his preamble. He mentioned the quote in the Health Service Journal article from a spokesperson for the Department of Health and Social Care, and I think that quote accurately reflects the nature of this Bill. I am grateful to those officials from the Department who ensured that the Health Service Journal got its quote.
I now turn to the substance of the shadow Minister’s argument and some of the gritter points that he, the hon. Member for Bristol South and others have alluded to. Fundamentally, he asked what challenge this Bill seeks to resolve. He asked a few other questions as well, which I will try to answer.
We believe that the Secretary of State should be able to intervene in reconfigurations for which they are ultimately accountable, and that this proposal will increase accountability to Parliament and the community by enabling intervention at an earlier stage. Too often, controversial proposals are referred at the very end of the process after a huge amount of work, effort and expenditure, rather than at an earlier stage when there is already a divergence of opinion in the local community. The Bill gives the Secretary of State an opportunity to take a view—based on advice and on the IRP’s four tests, which will continue to be the basis of that—and to get earlier intervention, where appropriate. That is one of the key reasons.
I will carry on, and the shadow Minister will nod if I am missing anything. He touched on local authority engagement, who can refer, whether there is a diminution in power—I think the hon. Member for Bristol South might have mentioned that—and what qualifies the Secretary of State to make those decisions. He also referred to local knowledge.
Karin Smyth
We could spend a lot of time on this, but I think the Minister is saying that this could happen if there is a dispute within the public at any stage—perhaps at the outline business case, perhaps at the initial raising at the ICB or perhaps at the floating of the idea. That is clearly nonsense, if I may say so. Will the guidance define what “any stage” means?
Edward Argar
We anticipate the guidance setting out what is proportionate, the criteria and the appropriate point at which an intervention can be considered. I come back to the point that too often, under the current arrangement, proposals come forward right at the end of the process, after huge amounts of expenditure, effort and time, only to be overturned—potentially at the very last moment—on the basis of the referral. Having a measured and proportionate intervention power at an earlier stage is the right approach to save a lot of angst and possibly money, although we do not anticipate that the power will need to be used on many occasions, because the vast majority of reconfigurations are broadly consensual, or reach a local consensus.
The shadow Minister alluded to local authority referrals, and the hon. Member for Bristol South has highlighted the importance of local authorities and local accountability in a number of previous speeches and interventions. The new call-in power will not replace the important role that local scrutiny and engagement play in service change decisions. Decision making on all reconfigurations, as I said, will continue to be bound by the four tests against which reconfiguration should be assured: strong public and patient engagement; consistency with current and prospective need for patient choice; a clear clinical evidence base; and support for proposals from clinical commissioners.
The IRP will continue to provide the independent clinical advice to inform the Secretary of State’s decision making. His scrutiny and direction-making process must take into account the public law decision-making principles, all relevant information and all legal duties, including the public sector equality duty.
In that context, the Secretary of State will also continue to be bound by his duty on quality of service. That includes promoting the comprehensive health service and securing continuous improvement in the quality of services provided. The new call-in power for reconfiguration will allow the Secretary of State to support effective change and to be more responsive to the concerns of the public—and of Members of Parliament as their representatives—at an earlier stage.
Justin Madders
Reflecting on the Minister’s comments about why the provision is needed, my understanding is that the power to give the Secretary of State the opportunity to intervene at an earlier stage means that, in effect, local health systems will not spend an awful lot of time and effort coming to decisions that will ultimately be overturned. I wonder whether the Minister can give us any more detail or any thoughts about why, in a system that was generally thought to be working well, a decision could go all the way through that process and, at the end of it, be deemed to be wrong.
Edward Argar
One particular example comes to mind, but given that it is a live one, I will not use it. However, if I semi-anonymise it, there are decisions that are made locally and followed through, and only at that last moment is the process challenged—for example, whether a consultation was done properly—so it triggers a potential referral to the IRP, which could see that process overturned. An earlier power to intervene and an earlier opportunity to engage could in many cases avoid that problem and lead to a smoother process.
Let me make a final point. I would expect most reconfiguration decisions to be managed by the local system, and system players will be encouraged to resolve matters locally where possible and not to require any referral to the Secretary of State. Where cases are highly contentious and require ministerial input, our proposals will allow the Secretary of State to intervene. He is accountable in Parliament for reconfigurations. The shadow Minister made the broader point that if we ask who is responsible for the NHS, people will say the Secretary of State, or potentially the Prime Minister. That is already there in people’s minds. It is right that we have commensurate powers in the Bill to enable the Secretary of State to properly discharge that function and accountability.
I remain touched by the hon. Gentleman’s kind concern about the volume of work I may end up having to do as a result of the measure. I do not quite share his concerns, but I am none the less touched by the thought.
I urge the hon. Member for Bristol South, perhaps in vain, not to press her amendment to a Division, and colleagues on the Committee to support the clause.
Question put, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clauses 40 and 41 stand part.
That schedule 7 be the Seventh schedule to the Bill.
Clause 42 stand part.
Clauses 44 to 50 stand part.
Edward Argar
With your indulgence, Mr McCabe, and that of the Committee, I will start with clause 39, followed by clauses 40 and 41 and schedule 7, and then go through the remaining clauses in the group.
Clause 39 amends the Health and Social Care Act 2012 by repealing section 179, which abolishes NHS trusts in England. It is an uncommenced provision. The policy intention at the time was that all NHS trusts would become foundation trusts. However, since then the provider landscape has settled at around one third NHS trusts and two thirds NHS foundation trusts, and, as far as I am aware, no applications for change to a foundation trust are currently in flight. There is no intention to alter this landscape significantly and, as such, section 179 of the 2012 Act should be repealed. Doing so provides absolute legal clarity that the Secretary of State can create new NHS trusts under section 25 of the National Health Service Act 2006.
Given the ongoing pandemic, and with the NHS having to deal with the broader challenge of treating an ageing population with ever more complex needs, we seek to ensure flexibility by allowing the Secretary of State to set up new trusts for any purpose, to ensure alignment within an integrated system. The ability to create new trusts, where they are requested by a local area, enables the NHS to be structured to deliver the best outcomes for population health and to respond to emerging priorities. Our aim is to ensure that the system is flexible and adaptable in the future, and wherever possible to avoid the need for complex workarounds to deliver system priorities. Although section 179 was never commenced, we want to remove any potential legal uncertainty over the Secretary of State’s ability to create new NHS trusts. Clause 39 removes the lack of clarity around the Secretary of State’s ability to do so.
Clause 40 repeals paragraph 10 of schedule 4 to the 2006 Act. This paragraph allows the Secretary of State to appoint trustees for an NHS trust to hold property on trust. The clause removes the Secretary of State’s powers to appoint such trustees. In practice, these powers have only ever been used to appoint trustees to NHS charities. Historically, NHS charities were charities regulated under charity law provisions but were also linked to NHS bodies and bound by NHS legislation. This means that they were charitable trusts established under the 2006 Act and had as their trustee an NHS body, such as an NHS trust or foundation trust. The 2006 Act also allowed the Secretary of State to appoint trustees to NHS foundation trusts and NHS trusts, and to transfer property.
Since the publication of the Government’s response to the review of regulation and governance of NHS charities in 2014, it has been our policy for all NHS charities to move to independent status. Since then, all NHS charities have moved to independent status, including the 21 larger charities that had trustees appointed by the Secretary of State. Therefore, there are no NHS charities with trustees appointed by the Secretary of State, and all NHS charities are solely regulated by the Charity Commission. In light of the above, and as there is no further need for the Secretary of State for Health and Social Care to appoint trustees, clause 40 will remove such powers.
Clause 41 introduces schedule 7, which makes minor and consequential amendments relating to clauses 39 and 40 of the Bill. Clause 39 repeals section 179 of the Health and Social Care Act 2012, and clause 40 repeals paragraph 10 of schedule 4 to the National Health Service Act 2006 and removes the Secretary of State’s powers to appoint trustees. In order to implement the changes as a result of these clauses, schedule 7 makes consequential amendments to various other pieces of legislation, such as the Local Audit and Accountability Act 2014 and the NHS (Charitable Trusts Etc) Act 2016. This ensures that the changes made by the Bill in relation to clauses 39 and 40 are consistently represented throughout other pieces of legislation. These minor and consequential amendments are necessary to clarify the Secretary of State’s ability to create new NHS trusts and to remove the Secretary of State’s powers to appoint NHS trustees.
Clause 42 makes changes to the licensing regime for NHS trusts. The clause removes the exemption in the licensing regime for NHS trusts, meaning that all NHS trusts will require a licence from NHS England to operate. This reflects the intention that NHS England should manage both NHS trusts and foundation trusts, which already have to have licences, in similar ways. This has been NHS Improvement’s de facto practice for some time, and this amendment brings trusts within the scope of NHS England’s licensing and regulatory powers.
NHS England intends to use this as a means to manage all NHS providers more effectively and coherently, to ensure they are fulfilling their statutory duties and delivering high-quality, financially sustainable healthcare.
Alex Norris
It is a pleasure to follow the Minister’s admirably comprehensive coverage of the clauses, which I will try to meet in similar terms.
We recognise that the clauses address a number of technical changes to the status of NHS trusts and NHS foundation trusts in this country. We do not oppose them as we think they are consistent with the broader aims of the Bill: moving us from a world of competition to one of collaboration. I recognise that there is a great deal of transposition in the clauses, so very little will be different in substance, and that is why I will probe the Minister, who may well have pulled his punches with them. Why did he not go further?
In reality, the clauses, which are a significant part of the Bill, tidy up previous Acts but do not change enough of their substance. Nothing in the clauses—as with far too much in the Bill—will make anybody better, shorten waiting times, ensure safer staffing levels, address crumbling facilities, or do anything about the other myriad issues faced by the health service and Ministers. The Bill is in danger of creating the illusion of acting without really acting, like repainting a building and pretending it is a new hospital.
On clause 39, I listened carefully to what the Minister said about there being no plans to unsettle or change the provider landscape, meaning it is necessary to end the assumption that all NHS trusts will become foundation trusts. I agree with that basic principle because the debate has moved on significantly from that. It is less about a competition-based system and more about a system of collaboration. Indeed, as the Minister said, notably, there is a greater focus on the ICS as the unit of understanding in the community rather than the acute hospital.
As a result of that, however—this is not in the Bill —we will have two tiers, or two different sets of trusts, littering the landscape. We will entrench a system of trusts that are simultaneously autonomous and not, competitive and not, responsible for their own bottom lines and not, and free to spend their accumulated capital and not. That is a mess. If we tried to explain to a dispassionate observer why different trusts could do different things, we would not be able to. Were we designing a system from scratch, we would never design it like that. I would argue that the Bill is the closest we will come to designing a system from scratch, so I am surprised that that two-tier system has not been addressed in a more meaningful way. That would send a strong signal that NHS trusts and NHS foundation trusts are fully part—not semi-detached parts—of the NHS. They are public bodies and we expect them to act like public bodies.
On clause 40, I do not think I had anything to ask the Minister beyond the points that he made. Clause 41 deals with consequential amendments.
On clause 42, and at the risk of asking a daft question, although I do not think it is, but we will find out, what is the point of licensing trusts? Is this not just creating a bogus sense of distance from the centre, when actually the rest of the Bill is designed to consolidate NHS England as the regulator, the funder and the powerful operator? Why create this licensed distance between NHS England and its providers, other than the fact that it has been custom and practice for the past 10 to 20 years to do so? Is the licence really going to be worth the bother of printing out, or is it not just a legacy of a model of independence and composition that successive Acts have featured, but from which there is now a universal keenness to move on?
Edward Argar
I am grateful to the shadow Minister for his indication of broad support for our proposals. He is right: there is a significant degree of transposition and replication of what was there before, while recognising the new landscape. He asked why we did not go further; when we debated clause 38, he accused me of going too far. I suspect, from his perspective, that the question of balance has yet to be achieved, but I think we have struck the appropriate balance.
In his opening remarks, the shadow Minister said that while this is all useful and neat, it does not address some of the underlying challenges. I would argue that the Government have set out a very clear strategy for that in the NHS Funding Act 2020—I think I stood across from the shadow Minister for that one, which was a rather shorter piece of legislation—and, of course, the recent announcement by the Prime Minister, setting out the record additional funding going into the NHS.
On the specifics, I do not believe that foundation trusts mean a two-tier NHS. There are different models, and we are not proposing to stop the formation of foundation trusts—the hon. Member for Ellesmere Port and Neston has already enjoyed asking me a polite but pointed question in that regard. However, we are not going to compel it; we are not saying that that is the direction, and therefore we do not see the need for section 179. We are not saying that everyone must move in that direction. However, we will retain the ability for them to do so, should they wish.
The hon. Member for Nottingham North raised the issue of intervention, support and similar matters. There are different definitions of those concepts. For example, on the purpose of a default order, when one of those is issued, chairholders must immediately vacate their office. The order must
“provide for the appointment…of new members of the body and…contain such provisions as seem to the Secretary of State expedient for authorising any person to act in the place of the body pending the appointment.”
An intervention order may provide for the suspension or
“removal from office of all the members”
of the board,
“or those specified in the order, and for their replacement”.
An intervention is essentially quite a strong power. I would suggest that support takes a less prescriptive form and refers—as we would all understand the term—to support, advice or guidance. There is a difference in the level and severity of the interventions required.
On equivalent treatment in respect of foundation trusts and NHS trusts, one intention behind the merger of NHS England and NHS Improvement is to bring together the way we support providers, trusts and foundations so that there is a single model of support and one licensing approach. NHS England will—I suspect through guidance—clarify further how that will work in practice.
I take the points made by the shadow Minister. He perhaps sees these provisions as an opportunity to go further and address other issues that he perceives to be challenges for the system. We have deliberately sought to make this a transposition. It is technical, but we think these technical changes are important to ensure that NHS England retains the powers it needs to support, intervene and make sure that the system works. Although I will, as always, continue to reflect on the points he makes, I commend the clauses to the Committee.
Question put and agreed to.
Clause 39 accordingly ordered to stand part of the Bill.
Clauses 40 and 41 ordered to stand part of the Bill.
Schedule 7 agreed to.
Clause 42 ordered to stand part of the Bill.
Clause 43
NHS trusts: wider effect of decisions
Question proposed, That the clause stand part of the Bill.
Edward Argar
I hope I can reassure you, Mr McCabe, and the Committee that I do not intend to speak for anywhere near as long as I did on the previous group.
Edward Argar
I hear the cries of disappointment from the Opposition.
Clause 43 places a new duty on English NHS trusts, and clause 57 places a new duty on NHS foundation trusts, to have regard to the wider effects of their decisions. The duty, which was described in the NHS long-term plan as the triple aim, is mirrored for NHS England and the proposed integrated care boards. NHS England will be able to produce guidance on the duty that all bodies to which it applies must have regard. That duty is also given effect by clauses 4 and 19 in relation to other bodies, which we debated earlier.
As is indicated by the name, the duty has three limbs. First, NHS trusts and foundation trusts must consider the impact of decisions on the health, including mental health, and wellbeing of the people of England. Secondly, they must consider the impact on the quality of services provided or arranged by relevant NHS organisations, including their own. Thirdly, they must consider the sustainable use of NHS resources, including their own resources.
Decisions about particular individuals are excluded. It would not be practical or appropriate to apply the duty to decisions concerning services to be provided to any particular individual—for example, treatment decisions made by clinicians. The existing duties on those bodies encourage a focus on the interests of their own organisation and those who directly use their services. Although delivery of high-quality services remains critical, the new duty will complement other changes in the Bill to facilitate co-operative working and integration. It will encourage NHS organisations to continue to look at their communities beyond the people they directly provide services to and to consider collaborative, system-wide goals.
Following the merger of NHS England and NHS Improvement, NHS England will be responsible for setting and modifying the conditions contained in the licences of NHS providers. Clause 65 adds a new purpose for which NHS England may set or modify licence conditions: namely, that of ensuring that decisions relating to the provision of healthcare services for the NHS are made having regard to all their likely effects in relation to the three limbs of the triple aim.
Given that I have just discussed the triple aim in relation to clauses 43 and 57, I will not repeat the same arguments. As a consequence of this clause, NHS England will be able to set licence conditions aimed at ensuring that NHS trusts and foundation trusts comply with the new triple aim duty. Conditions relating to the triple aim in licences will ensure that the objectives of the new duty are considered alongside providers’ other duties and licence obligations. That in turn will encourage trusts and foundation trusts to consider the wider effects of their decisions and work on collaborative goals to the benefit of the whole system.
These clauses are essential in encouraging the components of our healthcare system to work together co-operatively and considerately, with an awareness of the wider effects of their decisions. I therefore commend them to the Committee.
Alex Norris
I, similarly, will not go on at great length. The clauses are consistent with the stated aim to move from competition to a culture of collaboration. It is therefore right that under clause 43, NHS trusts will have regard to the impacts of the decisions that they make on their neighbours, with particular reference to promoting the triple aim.
I want to press the point about what is meant by “relevant bodies” in proposed new subsection (4). The Bill states that it means NHS England, the integrated care board, NHS trusts and NHS foundation trusts. All of those, of course, make abundant sense. However, we are missing an opportunity to extend it more broadly to the health and social care family, within which the Bill is meant to promote integration. The obvious exclusion is local authorities.
In previous proceedings, the Minister chided me for jumping about in respect of whether he was going too far or not far enough. I am going to take the cheese on that. There is no inconsistency between saying that in one provision—for example, the powers of the Secretary of State—the Government are going too far, and in another—for example, the status of NHS trusts—they are not going far enough. Provided that those two things are not interdependent, of course the Government might be going too far on one thing and not far enough on another. I reserve the right to say that as I see it.
I might just go back to the Minister at this point on jumping around, because the Bill started as an integration Bill. It was going to be the great integration of health and social care, and what a moment this was going to be in British healthcare history—probably second only to 1948. Obviously, that fell apart straight away because there is not much about social care in the Bill—only two clauses out of 135. Then the Prime Minister said, “Don’t worry, we are going to come back with an integration White Paper in due course.” Presumably legislation would follow that. At that point, the Minister said that this was a paving Bill.
Alex Norris
Foundation is even lower than paving, so I am not sure that that is a recommending analysis. Then earlier today, the Minister said that of course integration could take many forms. It could be integration of many bodies, and in this case many bodies within the NHS could be integrated. I gently say that, if we are wondering what exactly we are integrating, the title of the legislation is the Health and Care Bill, so I would start with health and care. I think we are missing that opportunity.
The reason for local authorities not being on this list may well be that we cannot bind the NHS to other non-NHS bodies, but that makes my case rather than argues against it. It is therefore not an integration Bill; it is just an NHS Bill. We will come back—that is the point. I keep saying this for a reason. We will have to come back to address that point, because the reason we are considering primary legislation is that systems have outstripped the status of legislation on the statute book. However, if we do not go far enough to catch up with them, we will have to do so in the future. There is an aspiration to do that sort of integration not just within the NHS, but within the broader health and care family. I really think that while it is not too late, we ought to consider what more we could do to put local authorities into this conversation.
As for clause 57, it is welcome that these duties also apply to foundation trusts, but it again highlights the fact that we are going to get to a point where the difference between a foundation trust and other trusts will be a distinction without a difference. We really ought to think about revisiting that, and I hope we will get the chance to do so yet.
Finally, of course it makes sense to amend licences, even if it perhaps does not make sense to have licences. I hope that the Minister can respond in particular to the point about local authorities.
Edward Argar
I have always been clear that the Bill adopts an evolutionary rather than revolutionary approach to driving forward greater integration, not only within the NHS in a locality but between the NHS and local authorities. On multiple levels, this is a Bill about integration and partnership working, and of course one on which the Prime Minister, ambitious as he always is for this country, wishes to build and go further.
The shadow Minister asked some specific questions about local authorities. The reality is that there is a different evolution and genesis in our local government system and the social care that sits with it, compared with the NHS. Up until 1948, effectively we saw that both were local and place-based. The National Health Service Act 1946 and the establishment of the NHS in 1948 set the NHS on a different path, which essentially looked upwards. It was a national system, albeit place-based, and it was national in its accountabilities, whereas local government continues to be based around different accountabilities at a local level.
Although it is important that we do exactly what we are doing, as the Prime Minister continues to, which is to drive forward greater partnership working and integration, we have to recognise those different developmental paths and the challenges they pose. In that context, local authorities do have, as the shadow Minister knows from his time in local government, their own distinct duties and accountabilities. The triple aim should lead NHS bodies to engage with local authorities—for example, in considering the health and wellbeing of the people in England or in their area. It pushes and nudges the NHS to think more widely about how it engages.
Equally, it is important to note that there are other measures in the Bill, such as the ICBs and the partnerships, that bring together those two bodies with their distinct DNA. We want to make it easier for them to work together in partnership and to integrate further, but we do recognise those different accountabilities and approaches —one directly accountable through local councillors to a local community, and the other part of a national system. These measures, we believe, will drive the NHS to go further in having heed to those local factors. That may not fully answer the shadow Minister’s point, but I hope it goes some way to doing so. With that, I commend the clauses to the Committee.
Question put and agreed to.
Clause 43 accordingly ordered to stand part of the Bill.
Clauses 44 to 50 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Steve Double.)