Health and Care Bill

(Limited Text - Ministerial Extracts only)

Lords Hansard - Part 2 & Committee stage
Thursday 13th January 2022 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, I congratulate the four noble Lords who have produced this excellent suite of amendments across the Bill to ensure that ICBs procuring or commissioning goods and services on behalf of the NHS are firmly focused on their responsibility for NHS England’s commitment to reaching net zero by 2040. It has been an excellent and informed debate, and one with much enthusiasm to reassure the noble Baroness, Lady Hayman.

We fully support the amendments and have little to add from these Benches following the expert contributions of those proposing the amendments and the other noble Lords who have spoken. I am sorry my noble friend Lady Young, who put her name to the amendments, cannot be here. She was a key member of our team during the recent passage of the Environment Bill, and her expertise and wisdom always guides and reflects our approach. The House is clearly interested in this vital matter, as we saw this week in an important Oral Question on the Prime Minister’s promise for a new, overarching net-zero test for new policies. Assuming the Government fully support the key commitment from NHS England, I hope that, in his response, the Minister will accept the need for the amendments and will not argue that the proposed new clause is unnecessary as NHS England already has a commitment that will percolate down to ICBs.

As we have heard, the power of public sector procurement is a massive issue and there is no bigger part of the public sector than the NHS. The NHS has such an important impact on other environment issues, such as waste, pollution and resource consumption, especially for plastics, paper and water. We should ensure we are on the front foot in using that impact to deliver the net-zero commitment.

The NHS has made a start, but there is much more to do. These amendments would reinforce the importance of action in these areas for the new bodies and processes that the Bill creates. The NHS is a big player and, as noble Lords have stressed, it can play a big role in tackling all of these climate change and environmental challenges. Procurement is a strong lever that the NHS can utilise in key markets, particularly in those areas where it is the sole purchaser. The noble Lord, Lord Stevens, was very eloquent on this issue and I look forward to the Minister’s response in the light of his contribution.

Like other speakers today, my noble friend Lady Young wanted to stress that action so far is only the beginning. In the light of the importance of climate change and other environmental challenges, we strongly support such a duty being in place for all the public and private bodies with significant impacts when future legislation comes through Parliament. We did that when inserting a sustainable development duty into the remit of every possible public body from the late 1990s onwards, but this time it has to be not only enacted but managed, delivered, tracked and reported.

As the Minister, the noble Lord, Lord Callanan, told the House this week, every sector of government needs to do its bit, and we need to hold them to that. These amendments are vital, since every public body will have to take further action this decade if we are to restrain temperature rises to two degrees—far less, 1.5 degrees.

Finally, I too thank Peers for the Planet both for its work and, especially for me, its excellent briefing. As noble Lords have stressed, the NHS has committed to net zero and aims to be the world’s first net-zero national health service. It is responsible for around 5% of the UK’s carbon emissions. That is why the NHS’s role and contribution to net-zero targets should be fully integrated into the Bill. I look forward to the Minister’s response and his detailing of how the NHS is to achieve its ambitions. I hope that he will acknowledge that its commitment must be in the Bill. These amendments present a vital opportunity to enshrine in law a commitment that I think most, if not all, would want to see delivered.

[The Parliamentary Under Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

I thank the noble Lord, Lord Stevens, for the amendments and the noble Baroness, Lady Hayman, for her opening remarks. I also thank the noble Baroness for her suggestion yesterday that it might make my life a lot easier if I just accepted amendments. I understand that advice, having just gone through a two-hour debate on the previous group.

A number of noble Lords referred to how these amendments relate to our previous debate on inequalities. I point out that that is sometimes not quite in the way that we would expect. We might think there is a direct connection, but sometimes the green agenda can be seen to be for those who can afford it—as I explained before, for the white, middle-class, patronising people who tell immigrant working-class communities what to do and push up their costs. Anti-car policies push up costs for those in rural areas, and there are higher fuel costs as we replace gas boilers with potentially more expensive heat pumps. We have to be aware of those issues. In the long term, I am optimistic. I look forward to the day when we have solar power and wind power, with storage capacity, which will reduce costs.

[Baroness Northover (LD)]

Will the Minister look at this globally and recognise that the poorest are affected the worst? When he talks about those in poverty, he should think globally.

[Lord Kamall (Con)]

I accept that point, but I also accept that, sometimes, one can be patronised, and I do not accept being patronised as I was in the earlier debate. One day, there will be cheaper fuel, and we can look forward to it, but we have to make sure that the transition along the way is not seen to push up costs for working people, because we all feel passionately about this green agenda.

[Baroness Bennett of Manor Castle (GP)]

The Minister was talking about the impact of policies on the poor. Does he agree that many of the products—the fabrics, the chemicals—are manufactured in the poorest areas of the world, producing pollution that has disastrous impacts on some of the poorest people?

[Lord Kamall (Con)]

I was going to come to the noble Baroness’s points, and I am grateful to her for raising these issues directly with me previously.

Turning to the amendments, I thank the noble Baronesses, Lady Hayman and Lady Young of Old Scone, and the noble Lords, Lord Stevens and Lord Prior, for bringing this debate before the Committee. There is no doubt that the NHS has a significant carbon footprint. There is no doubt that a poor environment has direct and immediate consequence for our patients, the public and the NHS. There is no doubt that it has an impact on the health of the nation. As the noble Baroness, Lady Hayman, pointed out, the NHS accounts for around 4% to 5% of UK emissions. If we go further, as the noble Baroness, Lady Bennett, said, that is 40% of public service emissions. Noble Lords are right to highlight the critical role that the NHS has to play in achieving net zero.

To support that work, NHS England—thanks in part to work already started by the noble Lord, Lord Stevens, who I know has had conversations with my right honourable friend the Secretary of State for Health and Social Care—is leading the way through a dedicated programme of work, as many noble Lords acknowledged. This includes ambitious targets for achieving net zero for the NHS carbon footprint by 2045 and for its direct emissions by 2040. This is ahead of the target set by Section 1 of the Climate Change Act 2008; we welcome that ambition and will continue to support the NHS in that.

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[Lord Mawson (CB)]

I thank the Minister. Can I just give an illustration about the local on this issue? I am certainly not an expert on climate change, but I am a practical person who worries a lot about granularity and the gap between a lot of talk I have heard over many years on all sides of this Chamber—with very large amounts of money cited, et cetera—and the realities in this building.

I am trying to buy an electric car at the moment, as a responsible citizen. When I went to have a look at the multi-storey car park below this building—the local—and wondered where I am going to plug it in when it arrives here, I ended up talking to one of the facilities managers, who was a very nice man. I asked him how many plug-in points there were underneath this building—again, the local. He said, “I don’t know, Lord Mawson, but I will look into this”.

He was diligent and came back to me. We started to have a conversation about it, and he began to suggest that I need to carry a cable in my car with a three-pin plug. I pointed out that my office is across St Margaret Street, in Old Palace Yard, on the third floor, so maybe I should run it across there with a carpet over it and up to the third floor to plug it in there. We had this amusing conversation. I said, “Well, go on then, tell me: how many are there in this building, where all this chatter and talk is taking place?” His answer was that there are two. I suggest that the gap between reality and rhetoric is very large indeed. If we are really going to deal with these issues—as we must—we must now become intensely interested in the NHS and in all the systems of government about practicality and the procurement machinery, which I suggest is not working.

I talked to one of the facilities people yesterday about my office, which has a light switch with a notice over the top of it telling you how to use it. It is completely ludicrous. She told me that that system is going to be different to all the systems here in the Palace of Westminster; none of it is joined up.

I think the Minister is right. The clue is in the local, but all our systems and our civil servants must now become interested in practicality and the local if we are really going to get serious about these matters. It is absolutely crucial to get procurement right, because without that, we will never deliver this.

[Lord Kamall (Con)]

I thank the noble Lord, Lord Mawson, for that intervention, and I completely agree. There are some incredibly inspirational projects going on in our local communities, tackling and addressing the green agenda, and sometimes, top-down, we may feel good about it in this place, but it really affects working people and those who face higher costs and we have to be very careful.

On the specific question of procurement, the NHS is already publicly committed to purchasing only from suppliers which are aligned with its net-zero ambitions by 2030, and last year, NHS England set out its roadmap giving further details to suppliers to 2030. This is supported by a broad range of further action on NHS net zero and we hope that by pushing this through at NHS England level, but also with ICSs, we can see some of that local innovation as local trusts and local care systems and even health and well-being boards respond to those local challenges—others could learn nationally. To respond to the question of the noble Baroness, Lady Walmsley, NHS England will publish the world’s first net-zero healthcare building standard; this will apply to all projects being taken forward through the Government’s new hospital programme, which will see 48 new hospital facilities built across England by 2030.

There is political consensus on green issues. and we should pay tribute to the noble Baroness, Lady Bennett, and the Green Party for making sure, over the years, that the green agenda has been put at the centre of British politics. We find green policies in all the election manifestos of the mainstream parties: that is in no small part due to the noble Baroness’s party and to the noble Baroness herself. So, even while we may disagree on how to achieve some of these things, there is no doubt that we are not going to reverse on our commitment. Whatever Governments are elected in future, all are committed to a carbon net-zero strategy and a cleaner environment. So, I must gently disagree with her that these amendments are necessary.

I would like to have further conversations with the noble Lord, Lord Stevens, given his experience, on why he feels that, despite all the great work that the NHS has been doing, these amendments are still necessary. I would like to have further conversations with him and others, but at this stage, I ask the noble Baroness to withdraw the amendment. Across the political spectrum, we must make sure that we are pushing the NHS to deliver, not only at the national level but at the ICS level and even lower, at the place level that the noble Lord, Lord Mawson, speaks so eloquently about.

[Baroness Bennett of Manor Castle (GP)]

Before the noble Lord sits down, will he respond to the question, of which I gave him prior notice, about the document?

[Lord Kamall (Con)]

I apologise to the noble Baroness—I am so sorry, but I am trying to juggle 300 devices. That is a slight exaggeration, if I am honest. We recognise the importance of ensuring that all chemicals in the NHS supply chain are appropriate and properly managed as part of the net-zero strategy. I think the noble Lord, Lord Stevens, even touched upon some of the chemicals that were used and some of the issues he looked at during his time at the NHS when it comes to chemicals. The NHS must also comply fully with the Control of Substances Hazardous to Health Regulations, the CoSHH regulations.

More broadly, although Defra is the lead department for harmful chemicals, the UK Health Security Agency feeds in its expertise in relation to restricting and banning chemicals, and we are grateful to it for that work. The UKHSA is also looking at each of those chemicals, which we hope in future can be replaced by less harmful materials and chemicals. I undertake to write to the noble Baroness in more detail than the short answer I have given her at this stage.

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[Baroness Thornton (Lab)]

My Lords, I am very grateful to the noble Baroness, Lady Walmsley, because she has helped me to clarify my thinking about this group of amendments. Basically, they have good intentions and they make good points about the things that need to happen, but I am not absolutely certain they need to be in the Bill. I am also particularly grateful to the noble Baroness, Lady Finlay, for her very well-informed contribution about what actually goes on. There are of course problems in relationships between the devolved nations and NHS England, some of which are down to not being very well organised, some of which are down to arrogance on the part of the bigger ones, and some of which are down to the funding not actually being available—and some of them might be politically motivated too.

Amendment 17 opens some new thinking on the subject of integration, and accepts that devolution has given us different systems for care in Wales, Northern Ireland and Scotland, but seeks to ensure that what is done in one part of the UK—that is, England—does not adversely impact on other parts. The intention to bring collaboration between the nations is, of course, commendable.

I note that Amendment 205 places some requirements such that

“Welsh Ministers, Scottish Ministers and a Northern Ireland department must make regulations providing that the choices available to patients in England by virtue of regulations under section 6E(1A) or (1B) of the National Health Service Act 2006 (inserted by section 69 of this Act) are available to patients for whom they have responsibility.”


Again, we can understand the need for consistency, but I am unclear about how that will play out against the devolved nature of healthcare—so I think the case will have to be made out for that and, indeed, why that would be included in the legislation.

In a similar fashion, Amendment 301 looks to establish interoperability around the use of data across the whole UK. Again, that is a wholly worthwhile intention, and one that I would hope that the various authorities could collectively work on and agree. Once more, what the role is for primary legislation to address this point is not entirely clear, and I welcome the discussion. I look forward to hearing what the Minister has to say.

[Earl Howe (Con)]

My Lords, I begin by thanking my noble friend Lady Morgan for raising these important matters both via this Committee and by engaging—as I understand she has recently—with my honourable friend the Minister of State for Health. I am also grateful to all other noble Lords who have spoken so powerfully and knowledgably on these issues.

There is no escaping one overarching reality in this policy area, to which the noble Baroness, Lady Thornton, has just alluded. As a Government of the whole United Kingdom, Ministers are responsible for all people of the UK; that is a given. However, while the core principles of the NHS are shared across all parts of the United Kingdom, it is the devolved Governments in Scotland, Wales and Northern Ireland who are responsible for developing their own health policies. Health is largely a devolved matter in the UK, and the commissioning and provision of health services for people in Scotland, Wales or Northern Ireland will continue to be a matter for the devolved Governments.

It will not surprise my noble friend to know that the UK Government continue to respect existing devolution settlements, so our aim is close collaboration with the devolved Administrations to deliver the best outcomes for the people across the four nations. This means that, while we are sympathetic to the spirit of these amendments, I am afraid that we cannot accept them.

I shall address the detailed issues. On Amendment 17, I agree with my noble friend that there is more we can do to align our healthcare for the good of patients across the United Kingdom. We are already exploring several projects to support the NHS to work more closely across the UK, and this includes refreshing the current memoranda of understanding between all four Governments and working with the Office for National Statistics to establish a number of UK-wide datasets. Steps like that will improve transparency and collaboration for the good of all patients across the UK. We do not believe that these steps require primary legislation, but we will keep that question under review. We will also continue to work with NHS England to ensure that a number of groups that it currently hosts, such as the rare diseases advisory group, and their specialised commissioning processes, also meet the relevant needs of the devolved Administrations.

Turning to Amendment 205, we know that choice of healthcare is an important right for patients across the UK. The NHS Constitution for England, for example, enshrines the patient’s right to informed choice. We will be preserving the important right for patients in England to choose their first elective outpatient appointment, GP and GP practice through regulations made under powers provided by the Bill. NHS England works closely with the devolved Governments, including on commissioning and ensuring access to specialised services. Requests for patients to have treatment in other nations are generally to secure continuity of care, to provide care close to patients’ support mechanisms, or because of specialist expertise.

The health services in Scotland, Wales, and Northern Ireland already have the power to contract with any NHS provider in England. As my noble friend Lord Lansley rightly pointed out, they already have in place arrangements for commissioning specialised services from English providers, including cross-border agreements, referral schemes and service-level agreements. Taking further steps, as suggested in this amendment, would place a significant burden on a smaller number of providers, particularly those along borders, with consequences for the smooth running of those health systems. From a legal perspective, such a change would be a significant impingement on a devolved competence and would require the consent of the devolved legislatures. Of course, patients matter most, but such a change would also be unlikely to greatly benefit them, since they are already served by existing arrangements.

Amendment 301 deals with data interoperability. The UK Government are committed to working with officials across the devolved Administrations to explore the benefits that healthcare data can provide while working collaboratively to respect the devolved nature of this work. As in other areas, we are looking at ways to improve collaboration on data matters and address issues with data sharing. There are commitments within the data strategy for health and social care to work across central government and the devolved Administrations to improve appropriate data linkage, thus supporting people’s health care outcomes. This builds on the work of units such as the Joint Biosecurity Centre, and the newly established UK Health Security Agency.

That work will help us to collaborate to solve public health issues, improve disease surveillance and overcome any behavioural or structural obstacles to appropriate data sharing across our respective health and social care systems. In addition, we are speaking to the Office for National Statistics about collecting data on performance and outcomes across the UK. We are pursuing this with it, working in concert with the devolved Administrations. The ONS has assured us that it does not need additional powers to gather such data.

The problems encountered by the daughter of my noble friend Lady Fraser in proving her vaccination status are being actively addressed on both sides of the border. I must concede that the problems are not fully resolved yet, but understand that a Covid status pass from Wales, Scotland or Northern Ireland will be recognised in England and vice versa.

[Lord Bradley (Lab)]

My Lords, I am sorry to interrupt, but I have been meaning to ask this question for a while. Will that also apply to students who currently study abroad and had their first vaccinations abroad, and who then come back to work in their home country? Will that be connected to the NHS app as well?

[Earl Howe (Con)]

Rather than give a wrong answer to the Committee, I had better take advice on that and write to the noble Lord, if he will allow it.

I say to the noble Baroness, Lady Walmsley, that if we look at this area in general, we are clear that we must and will continue to work closely with the devolved Administrations to ensure a fully interoperable, UK-wide approach to healthcare, including in relation to the provisions in this Bill.

It is worth adding that the devolved Administrations already have powers in legislation under Section 255 of the Health and Social Care Act 2012 to request NHS Digital to collect and analyse data, so they have that ability if they wish to exercise it. I am very grateful for my noble friend’s interest in this important area. I assure her that we will continue to keep listening to ways in which we can make the NHS work for all four nations of our union. It is vital that we do so and implicit in the collaborative processes we are engaged in. However, for the reasons I have set out, I ask my noble friend to understand why I am unable to accept this amendment.

[Baroness Morgan of Cotes (Con)]

I thank my noble friend very much for his response. Although this has been a short debate, it has been a very good one. It has certainly been very helpful in noble Lords on all sides sharing their experiences and thoughts. It has raised some important issues and some comments on drafting. I am grateful to noble Lords for them. It has also enabled your Lordships to share some practical experiences, not least about the NHS Covid app. It sounds as if it is moving towards a resolution.

I was slightly amused that some of those who said that these issues do not need to be addressed in the Bill are often those who say that other issues need to be addressed in primary legislation so, when we are talking about consistency, we all need to think about that.

I am very grateful to my noble friend for saying that he agrees that more needs to be done and is being done to align healthcare across the United Kingdom and for stressing the importance of collaboration. I will, of course, withdraw this amendment, but the amendments in this group raise important issues and I hope that discussions can continue. As the noble Baroness, Lady Walmsley, I think, said, this is about practical, positive treatment and outcomes for patients, which is what we all want to see regardless of where they live.

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[Baroness Walmsley (LD)]

My Lords, like the noble Baroness, Lady Thornton, I shall start with those who I think should not be on the board before I turn to those who I think should. To a great extent I support the noble Baroness’s Amendment 29, but with a small caveat that, if she wished to press it, might require a bit of redrafting. I will explain.

Additional provider medical services are very useful in many areas to fill gaps in primary care capacity. They may provide additional services from which other NHS primary care services have opted out, such as out-of-hours services or enhanced services beyond the capacity of local NHS GPs to deliver. In some areas they have taken over primary care services where NHS GP practices have become too small to be viable or all the partners have retired.

Some APMS services are commercial businesses with a responsibility to their shareholders to make a profit, and I do not think these should be on the board. However, some APMS contracts go to NHS entities, and I would not want to exclude those. Of course, we must remember that for many years GP practices have also been small businesses, sort of, operating within the umbrella and ethos of the NHS. They too need to clear their costs or they will close down.

That is all well and good. However, if the Government are serious that they want to exclude private sector interests from ICBs, they must surely agree to include in that ban non-NHS entities that hold APMS contracts. A failure to accept the amendment of the noble Baroness, Lady Thornton, must surely make us a little suspicious about the Government’s claim that their amendment inserted in another place would successfully exclude private interests from the board.

Amendment 29 would extend the range of those involved in commercial enterprises from being members of the board of an ICS beyond those that we have just discussed in relation to the noble Baroness’s Amendment 28. Amendment 29 would specifically exclude NHS GP practices and voluntary or not-for-profit organisations from the ban. There are many types of organisations that would be included in the ban, although they could be heard on the board of the integrated care partnerships. Those include: pharmaceutical companies; providers of medical devices, equipment or premises; people who own care homes; and many other essential services without which our NHS could not survive. However, their importance should not entitle them to influence the constitution, strategy or commissioning principles of the board of the ICS. They are important providers that will be appropriately involved in planning at other levels, but they should not be able to steer fundamental decisions without the suspicion that they might have a commercial interest in such decisions. Indeed, the ban proposed in the amendment would protect such companies from such a suspicion, so perhaps it would be welcomed by them.

Turning to those who should be on the board, I will not repeat what the noble Baroness, Lady Hollins, said in introducing her amendments, because she has done it extremely well, particularly emphasising the impact of integrated services on people with learning difficulties and people with autism and how they could benefit from better integrated services if we got it right. So, I support her amendments.

I turn to Amendment 37, to which I have added my name to those of the noble Baroness, Lady Thornton, and the noble Lord, Lord Patel, for the following reasons. According to the Explanatory Notes, each ICB and its partner local authorities will be required to establish an integrated care partnership, bringing together health, social care and public health. The constitution of the ICB as it stands in the Bill specifies that the board must include only a minimum of three types of people who the Government clearly believe are essential to the effective operation of the board. They are someone from NHS health trusts or foundation trusts, someone from primary care, and someone from one of the local authorities in the area. If it is okay to prescribe these members, would it not also be wise to prescribe a few other key people with appropriate knowledge in order to achieve the ICB’s objectives of bringing together health, social care and public health? This amendment therefore suggests five other nominees—not 15, bearing in mind the Government’s wish to keep the ICB to a manageable size. But given the powers of the board, I would think it essential to have people nominated from mental health, public health, social care, health trade unions, patients and carers to bring their knowledge to strategic decisions.

If the board is to comply with the ambition of parity of esteem for physical and mental health—which we talked about two days ago—it will be important to have someone with the knowledge of how mental health services are working, as my noble friend Lady Tyler emphasised. Public health is a very particular discipline, the importance of which has been amply shown during the pandemic, which also has a vital role to play if we are to improve the health of local people and level up inequalities. Social care provision should never be separate from or subsidiary to health, as it is intrinsic to the functioning of health services in every area, so it is inconceivable that any ICB should ever be without someone from that sector.

The NHS is a people business, which is why those who deliver the services and the patients who are on the receiving end should have a voice at the top. Similarly, those thousands of unpaid carers, without whom vulnerable people would use up more of the NHS’s scarce resources than they currently do, should be represented at the very top of these new organisations. Their contribution to the efficient use of the board’s financial resources is crucial.

If the objective is to encourage more integration and collaboration, how could it be right not to have these additional five or six groups of people helping to make the strategic decisions? If that is not the case, as has been said by other noble Lords, the board could be dominated by the large acute hospitals and primary care, and the integration objective of the Government, which I endorse, would fail. I look forward to the Minister’s reply.

[Lord Kamall (Con)]

My Lords, this has been an excellent and wide-ranging debate, and I really am grateful to all noble Lords who tabled amendments today.

With your Lordships’ leave, I turn first to Amendment 18 in the name of the noble Baroness, Lady Thornton. This amendment would mean that the relevant ICB and ICP would need to be consulted before NHS England is able to provide support and assistance to bodies other than NHS bodies. The NHS has, under successive Governments of all political colours—indeed, since its foundation in 1948—commissioned care from various sectors to help it be more responsive to patients’ needs, and particularly to help deliver the commitments set out in the NHS constitution.

The vast majority of NHS care has been—and will rightly continue to be—provided by taxpayer-funded public sector organisations. But experience before and during the pandemic has demonstrated how important it is for NHS England to have the power, as the Trust Development Authority currently does, to provide support and assistance to any providers of services on behalf of the NHS. This will ensure that independent providers can, if necessary, be commissioned to provide important additional capacity where needed.

[Baroness Thornton (Lab)]

I really rather hoped the Minister would not go into whether or not I was suggesting that we should or should not be using private services. This is about who commissions services; this is not about who provides services. In my opening remarks, I said that a variety of providers is exactly what we have and will continue to have.

[Lord Kamall (Con)]

I thank the noble Baroness for that clarification.

The amendment seeks to exclude individuals whose GP practices hold an alternative provider of medical services, or APMS, contract from being a member of an integrated care board. While APMS contracts may not be appropriate for all GPs, they offer the ICBs, as commissioners, greater flexibility than other general practice contract types. As the noble Baroness, Lady Walmsley, acknowledged, the APMS framework allows commissioners to contract specific primary medical care services to meet local needs. APMS contractors include some private and third sector social enterprises and GP partnerships, which provide outreach health services for homeless people, asylum seekers and others. It is quite clear that none of this diminishes the commitment to ensure that care is provided free at the point of use, paid for by taxpayers.

All contract holders providing NHS core primary medical services are subject to the same requirements, regulations and standards, regardless of the type of contract. The Care Quality Commission, as the independent regulator, ensures that all contracts meet these standards.

Some GP partnerships concurrently hold a general medical services contract for core medical provision, as well as an APMS contract. Some individual GPs provide services for a range of practices. The concern is that this amendment would exclude GPs working for one or multiple practices which operate under APMS contracts from being members of the ICB.

NHS England’s draft guidance states that nominated members of an ICB will be full members of the unitary board, bringing knowledge and a perspective from their sectors, but not acting as delegates of those sectors.

This amendment would prevent some individuals being on integrated care boards, based on what type of NHS GP contract their practice holds. This could limit the ability of primary medical service providers to appoint an ICB member who understands the health requirements of the local population. This could reduce the diversity of GPs who could be appointed, based on their contract type. If we think of the unintended consequences, this may inadvertently exclude representatives with much-needed expertise in serving specific local populations and addressing their health needs.

Earlier, we talked about tackling inequalities. I feel very strongly that there are sometimes unintended consequences, where people think that they know better what is best for their communities. It would be unfortunate to exclude APMS contracts, or anyone who had an APMS contract and who had the expertise needed for those communities that are not receiving an adequate service, or for poor, immigrant communities. This could go against the goal that we all want to see of tackling inequalities.

I now turn to Amendments 29 and 30. I am grateful to the noble Baroness, Lady Merron, and the noble Lord, Lord Davies, for bringing this issue before the Committee. I understand the interest in the role of independent providers in the integrated care boards. I also understand the concern across the Committee to ensure that independent providers, including companies seeking to produce health and care products, should not be appointed to the board of ICBs. We agree. Integrated care boards will be NHS bodies whose board membership consists of a minimum of individuals nominated by NHS providers, GP services and local authorities whose areas coincide with that of the ICB.

Although, as has been acknowledged, service provision by the independent and voluntary sectors has been an important and valuable feature of the system under successive Governments, it has never been the intention for independent providers as corporate entities to sit on integrated care boards, nor for an individual appointed to be there as a representative of an individual provider, in any capacity. People must therefore be assured that the work of ICBs will be driven by health outcomes, not profit. However, we recognise that this is a matter of concern to many noble Lords, as well as to the other place. We have been keen to put this beyond doubt, which is why we brought forward the amendment on this very point at Report stage in the other place. This amendment makes clear that no one may be appointed to an ICB who would undermine the independence of the NHS as a result of their interests in the private healthcare sector, social enterprise or elsewhere, including the public sector.

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[Baroness Walmsley (LD)]

I apologise for interrupting the Minister, but I want to ask him a question going back to Amendment 28 and the APMS contracts. If we were to bring forward an amendment that made it very clear that we had no objection to NHS entities or not-for-profit organisations with APMS contracts being on the ICB, would he take a more friendly approach? It would just eliminate those that take profit out of the NHS.

[Lord Kamall (Con)]

I thank the noble Baroness for that suggestion and for trying to narrow the gap that there clearly is. If an amendment were put forward, we would look at it very carefully and consider the unintended consequences from the way it is drafted. We will consider it but, as I am sure the noble Baroness appreciates, I can make no promises at this stage.

I turn to the point made by my noble friend Lord Hunt of Wirral about how provider input in the work of an ICB will be reconciled with assessing both the suitability and performance of providers. As my noble friend correctly noted, each ICB must make arrangements on managing the conflict of interest and potential conflicts of interest, such that they do not and do not appear to affect the integrity of the board’s decision-making processes. Furthermore, each appointee to the ICB is expected to act in the interests of the ICB. They are not delegates of their organisations, but are there to contribute their experience and expertise for the effective running of the ICB—a point made most eloquently by the noble Lord, Lord Mawson, my noble friend Lady Harding and the right reverend Prelate the Bishop of London. It is important that this is about expertise, not the trust or organisation that they are taken from, or their skills and knowledge, as the noble Lord, Lord Mawson, said.

We are also keen to allow ICBs to develop their own governance arrangements, which best take their local circumstances into account. We want to give them the flexibility to learn and develop as their best practice evolves, so that other ICBs could learn from that best practice where there are concerns.

To support ICBs, NHS England is working with them to issue guidance and to develop and make clear our expectations of ICB leaders—expectations that have been reflected in the discussions and fantastic contributions from many noble Lords. For these reasons, I regret that the Government cannot accept these amendments at this stage. However, I hope I have given noble Lords such reassurance that they feel able to withdraw their amendments.

Turning to the membership of integrated care boards, I will begin with Amendments 27, 37, 38, 39, 40 and 41. I am grateful to all noble Lords who have brought forward these amendments today. I understand the interest from all sides in this membership. Schedule 2 sets out the minimum membership of the integrated care board; it will need to include members nominated by NHS trusts and NHS foundation trusts, by persons who provide primary medical services and by local authorities of areas that coincide with or include the whole or any part of the ICB’s area.

I take the point of the noble Lord, Lord Bradley, about mental health. I am sure he recalls the debate on Tuesday, when noble Lords felt very strongly about this. I have offered to meet many noble Lords from across the Committee who indicated that they want to see this parity with mental health, which they do not believe is implicit at the moment, even if we believe that “health” refers to physical and mental health. Indeed, it refers to spiritual health in many ways. But we understand that we have to close that gap and I will make sure that the noble Lord, Lord Bradley, is invited to those meetings.

It is important for us that we are not overprescriptive, which is especially true of any membership requirement. Any extension beyond the proposed statutory minimum will risk undermining local flexibility to design a board, as my noble friends Lord Mawson and Lady Harding and others have said, in the most suitable way for each area’s unique needs, drawing on the best expertise, but not where they are from. It may also make the boards less nimble and less able to make important decisions rapidly if we overprescribe.

It is important to remind the Committee—I apologise if noble Lords do not appreciate the repetition—that we set a floor and not a ceiling. The ICB can appoint board members if it wishes. Local areas can, by agreement, go beyond the legislative minimum requirements. They will want to ensure they appoint individuals with the experience and expertise to address the needs and fulfil the functions. Areas are already doing this. For example, in south-east London the ICB is proposing to include three provider members—acute, community and mental health—and six place members, one for each borough. This approach is exactly how we want ICBs to use the flexibility available to them.

If, in time, some of the concerns expressed today by noble Lords become clear—such as issues being skated over, ignored or elbowed out by others with louder voices—we may need to add further requirements that relate to ICB membership, and there are regulation-making powers in place in Schedule 2 to allow the Secretary of State to do so. Furthermore, NHS England has the power to issue statutory guidance to ICBs. It could, for example, use this to recommend that each ICB should consider appointing a learning disability and autism senior responsible officer, as I know the noble Baroness, Lady Hollins, has asked for and has spoken about most eloquently many times, most recently in a debate a few weeks ago.

Taken together, our approach reflects our view and, I reiterate, the view of the NHS that we should not attempt to overlegislate for the composition of ICBs and instead let them evolve as effective local entities to reflect local need. Let us get the right balance between the top-down and bottom-up approach, and make sure that they are relevant to their local areas. I am afraid that these amendments are seen to take a different approach, by adding more people to the minimum requirements for the ICB, making them larger but not necessarily better. They also add additional complexity by introducing a significant number of members who are responsible for activity outside the NHS. We think these would be better represented on the integrated care partnerships, which have a broader remit. I come back to the point that it is about expertise, not which trust.

I will consider the comments made by noble Lords very carefully if some of the concerns have not been met, and will have future conversations, between this stage and the next, if they feel that we have not addressed their concerns completely. I regret that the Government cannot accept these amendments. I hope that I have given your Lordships some, if not complete, reassurance and that noble Lords will feel able at this stage to withdraw and not press their amendments.

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for his detailed response. I was disappointed with the first remarks he made because he resorted to the mantra that the Government tend to go to when the question of private sector interests in delivering healthcare is raised by this side of the House. That is a shame, because the questions that we have raised are legitimate. In fact, his friends in the Commons accepted the conflicts of interest that could arise from private sector interests being represented on ICBs. We were seeking to make sure that that is watertight and there is no way of it changing. That is a legitimate question to ask.

I thank the noble Lord, Lord Patel, and the noble Baronesses, Lady Walmsley and Lady Meacher, for supporting Amendment 37, which is the key amendment in this group as to who may or may not be members of the board.

The noble Baroness, Lady Hollins, made a powerful case for the interests of people with learning disabilities and autism being represented. We know that where health systems make the health of people with learning disabilities a central priority, the whole health system benefits from it. That has happened in some places—for example, in Manchester—and it demonstrates how we improve the whole system. It is an important point.

My noble friend Lady Bakewell made the point about Centene and Operose, and that is partly why I put forward my amendment on APMS. The Minister may recall that we raised this matter in Questions a few weeks ago, when I asked him to write to me about what system had been used to give that contract to Centene, or Operose, in Camden, the area where I live. Having served on the CCG in Camden, I was aware of the importance of who runs primary care and of who the GPs in our surgeries are. Having right and proper people and organisations running our primary care was one of the criteria that you would use as a commissioner when you were looking at who was running, and who might wish to run, primary care and GP surgeries. I was involved in that process. As I learn about the history and background of this organisation now running primary care and GP surgeries in the UK, I do not think they are right and proper people to be doing that.

If this amendment does not serve the purpose of stopping that happening, I ask the Minister and the Bill team to reflect on what we might need to do to ensure that those from the private sector, social enterprises and charities whom we commission to run parts of our health service are right and proper people to do so. The remarks made in that regard by the noble Lord, Lord Hunt, were very interesting and useful, as they often are.

The noble Baroness, Lady Meacher, made the point about public health. That is the theme running through this Bill: the need for public health to be represented. She was also absolutely correct to bring us back to the idea that clinical leadership is very important. Of course it is. The right reverend Prelate the Bishop of London asked some pertinent questions.

My noble friend Lady Pitkeathley raised the issue of social enterprises, which is close to my heart. I am the honorary secretary of the All-Party Group for Social Enterprise, which I helped to found 20-odd years ago. The APPG has just completed an inquiry, chaired by the noble Earl, Lord Devon, about the impact of Covid on social enterprises, which absolutely illustrates the points made by my noble friend and which I will share with the Minister when it is available.

The noble Baroness, Lady Finlay, made relevant points about Allied Healthcare. I think that the noble Baroness, Lady Walmsley, and I agree that the problem with APMS is that there is a lack of clarity and it is a bit of a loophole, and we need to look at it again. This may not be the Bill to do it in, but it might be.

With those remarks, and hopeful that the issue of who the members of the ICBs will be will run through our discussions for the next few weeks, I beg leave to withdraw the amendment.