House of Lords

Monday 24th January 2022 Lords Chamber

Monday 24 January 2022

14:30

Prayers—read by the Lord Bishop of Bristol.

Sugar

Monday 24th January 2022 Lords Chamber

Question

14:36

Asked by

[Lord Brooke of Alverthorpe]

To ask Her Majesty’s Government what assessment they have made of the effect of sugar on health in England; and what steps they will take to reduce its consumption.

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

My Lords, consuming too much sugar can lead to weight gain, which in turn increases the risk of serious diseases such as cancer, heart disease, type 2 diabetes and Covid-19. It also increases the risk of tooth decay. Through the healthy weight strategy, we are delivering a sugar reduction and reformulation programme, including the soft drinks industry levy, and legislating to restrict the promotion and advertising of products high in fat, salt, and sugar.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, I am grateful to the Minister for his reply. He would agree that we need a suite of different approaches—

[Noble Lords]

Oh!

[Lord Brooke of Alverthorpe (Lab)]

—to try to make some headway. One of the great successes has been the sugar tax, yet the Government, for reasons which he previously explained, have decided not to extend it over a wider front because of unforeseen contingencies which created problems. Would he examine the prospect of taxing those unforeseen consequences so that the major driver for changing behaviour—pricing—will start to deliver the real results for us?

[Lord Kamall (Con)]

I thank the noble Lord for what I am sure was his unintended pun. I will try not to sugar-coat my response too much. We will see who can descend to the worst pun by the end.

We take seriously the issue of unintended consequences. As the noble Lord has rightly said, there has been evidence of people deciding to go to a different brand. In the case of Irn-Bru, it introduced a newer version, which I think it called “Irn-Bru 1901”, which has in fact a higher sugar content. We are very aware of that, which is why all the measures that we take must be evidence based.

[Baroness Boycott (CB)]

My Lords, in the National Food Strategy, which the Government are due to respond to soon, the suggestion is made that we introduce a £3 per kilogram tax on sugar, which would be on all processed food, food used in restaurants and food used in catering. It would, in effect, extend the current soft drinks levy which, as the noble Lord, Lord Brooke, said, has been very successful. It is very straightforward. What is the Government’s response?

[Lord Kamall (Con)]

We are looking at a number of different measures in terms of what works and what does not work, and we are very clear that it must be based on evidence. The Government keep all taxes under regular review, and decisions about the future development of taxes are made by the Chancellor, in line with the Government’s tax policy-making framework.

[Baroness Redfern (Con)]

My Lords, overconsumption of sugar causes both dental decay and obesity, but it is dental disease which, unfortunately, is in many cases largely irreversible. Does the Minister agree that action to tackle diet-related disease such as tooth decay must be formally recognised as an integral part of ongoing work to confront obesity?

[Lord Kamall (Con)]

I agree with my noble friend: it is really important that we review all the evidence and the different programmes. As she rightly said, the fact is that a number of hospital admissions of young children are quite often because those children have tooth decay that requires serious intervention. We are making sure that we look at all the different measures—what has worked and what has not worked—to put these into an evidence-led approach.

[Lord Dubs (Lab)]

My Lords, the Minister said he was looking at all the evidence. In doing that, I wonder whether he is looking at what happens, for example, in Amsterdam, where there is a very enlightened policy of education—going into schools and dealing with mums before they have even given birth—in order that there is a better understanding of this. Surely we must have as wide a spread and approach as that, and not just deal with taxes, which are important.

[Lord Kamall (Con)]

The noble Lord makes a really important point: it cannot just be about fiscal policy; it has to be across a whole range of different areas, including education and prevention. Indeed, one of the things that the NHS is looking at for the future is making sure that we focus more on prevention rather than cure—not to put cure aside; clearly, we have to deal with people who are ill. At the request of the Government, the Scientific Advisory Committee on Nutrition has undertaken an extensive evaluation of the evidence, looking at all the measures that we could possibly take to reduce sugar consumption.

[Lord Flight (Con)]

My Lords, the noble Lord, Lord Brooke, raises an important issue. Obesity is now a major UK health problem, and excess sugar consumption is a major cause, with significant sugar content in too much of our food. I confess to being somewhat of a sugar addict myself—corrected by my wife, but I still love chocolates and three spoonfuls of sugar in my coffee.

[Noble Lords]

Oh!

[Lord Flight (Con)]

The solution here is surely to bring in sugar substitutes.

[Lord Kamall (Con)]

I am not sure that I heard the last word. Was it substitutes?

[Noble Lords]

Yes.

[Lord Kamall (Con)]

One of the issues that we need to be aware of as we look at how to tackle sugar levels is that, although we have seen a reduction in sugar in drinks and in many food products over the years, a concern that is often raised is whether the sweeteners have unintended consequences that also cause health issues. We have to consider all the evidence when we look at the measures that we introduce.

[Lord Patel (CB)]

My Lords, can the Minister comment on the proposed relationship between high-carbohydrate consumption—which is what sugar is—and deprivation?

[Lord Kamall (Con)]

I always turn to the noble Lord for his experience and advice. It is well known that diabetics, for example, do not look at their sugar content but at their intake of carbohydrates when looking at their diet. I say this as someone whose family has both type 1 and type 2 diabetics, so I understand this issue. I would welcome more information from the noble Lord.

[Baroness Merron (Lab)]

My Lords, since its introduction in 2018, the sugar tax on soft drinks has successfully reduced sugar intake and raised more than £880 million, which the Government had promised to spend on tackling childhood obesity. However, it is no longer directly linked to any specific programmes, nor to departmental spending. Can the Minister explain this turnaround to your Lordships’ House, and what assessment has been made of the effect on public confidence that similar taxes will be dedicated to expenditure on improving people’s health?

[Lord Kamall (Con)]

I thank the noble Baroness for raising the success so far of the programme in reducing sugar in drinks. Between 2015 and 2019, we saw a 44% reduction in sales-weighted average total sugar in retailer and manufacturer-branded drinks subject to the soft drinks industry levy. The money raised through the soft drinks industry levy was not linked to any specific programmes or departmental spending. As the noble Baroness will be aware, departmental spend is allocated through spending reviews by the Treasury, and there is quite often some scepticism over hypothec—sorry, probably too much sugar, or not enough sugar—or hypothecated taxes, but we are committed to tackling childhood obesity through a number of different programmes.

[Lord McColl of Dulwich (Con)]

My Lords, does the Minister agree that the problem is not just sugar but the fact that people are putting too many calories of all sorts in their mouth? The real answer to the obesity epidemic and the Covid problem is to reduce the total number of calories going into the mouth. If your waist measurement is more than half your height, you are eating too much of the gross national product.

[Lord Kamall (Con)]

I thank my noble friend for that catchy slogan; I wonder whether we could use it in some of our campaigns. As he rightly says, it is not just sugar. There are concerns about ultra-processed foods, for example, but also the size of portions. Many noble Lords will be aware that, for some simple products, the portion sizes have increased over the years, and if you want to get a small portion you have to either buy something and share it with someone or throw away half of it. We are looking at all these measures to make sure that our diets are healthier, that we have the right balance with smaller portions and that people are doing exercise. It is one thing is to consume those calories but another to burn them off.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the Government buy 5% of the calories eaten every day; that is a figure from Henry Dimbleby. Does the Minister agree that the Government must do a lot more in a co-ordinated way to use government procurement in schools, hospitals, prisons and other institutions to ensure that the food available to people has far less sugar in it and, ideally, includes fresh fruit and vegetables rather than ultra-processed food?

[Lord Kamall (Con)]

I thank the noble Baroness for her recommendations for the sort of healthy diet we should have. She is absolutely right that, when government expects people to reduce their consumption of unhealthy food, it should set the way and lead by example. We are therefore looking at how we change diets in schools and across the public sector.

House of Lords: Appointments

Monday 24th January 2022 Lords Chamber

Question

14:47

Asked by

[Lord Grocott]

To ask Her Majesty’s Government what assessment they have made of the balance in the House of Lords between members taking the Government whip and members taking the whip of the Official Opposition as a factor when considering future recommendations for appointments to the House.

[The Minister of State, Cabinet Office (Lord True) (Con)]

My Lords, the Prime Minister makes nominations in response to the needs of the House for expert and specialist knowledge and experience and to maintain its political balance. This ensures that the Lords continues to fulfil its role in scrutinising and revising legislation while respecting the primacy of the Commons and the conventions between the two Houses.

[Lord Grocott (Lab)]

Can the Minister confirm that, when Labour left office in 2010, the number of Labour Peers exceeded the Tory Opposition by 26 and that, under this Government, the number of Tory Peers exceeds the Labour Opposition by 89? Can he also confirm that Tory Peers now constitute a third of the Members of this House and 50% of those taking the party whip—far higher than in any recent Administration? Is the scale of Tory appointments in recent years not at best a disregard of normal conventions and at worst a clear abuse of prime ministerial power?

[Lord True (Con)]

No, my Lords, I do not agree with that. Obviously, it depends what base you take for your statistics. The noble Lord opposite referred to the political House, which is now 32.1% Labour; the Labour vote share at the last general election was 32.1%.

[Lord Cormack (Con)]

My Lords, can my noble friend tell me whether the Prime Minister has read, marked, learned and inwardly digested the Burns report, which has been twice endorsed by your Lordships’ House and points a sensible way forward?

[Lord True (Con)]

My Lords, I cannot comment on the reading matter of the Prime Minister. However, I have told the House that neither his predecessor nor the current Prime Minister have committed themselves to the specific proposals on the size of the House.

[Lord Wallace of Saltaire (LD)]

My Lords, pending any further constructive and radical reform of the House, can the Government not at least agree that the appointments body should become a statutory body and that a set of principles, comparable to the Dissolution principles we will discuss tomorrow, could be drawn up by the Government in co-operation with all other parties represented in the House of Commons to form the basis for a common understanding of the principles by which appointments to this House should be made?

[Lord True (Con)]

My Lords, the House of Lords Appointments Commission performs an important role but, as I have told the House before, there are no current plans to alter its remit. Following the opening Question from the noble Lord, Lord Grocott, one thing I think we could agree on is that the Liberal Democrats are at least very well represented in this House—I do not use the term “overrepresented”, preferred by my noble friend behind me.

[Baroness Hayman (CB)]

My Lords, the Minister said that neither this Prime Minister nor his predecessors had committed themselves to implementing the Burns report. That, of course, is factually accurate, but what the right honourable Member Theresa May did do was exercise discretion in the number of appointments that she made to take forward what was then an approved government policy of reducing numbers in this House. Do we not need to get back to that situation?

[Lord True (Con)]

My Lords, the House today is much smaller than when I first came to work in it in 1997. I think your Lordships’ House works well and should perhaps agonise a little less on these matters. So far as these matters are concerned, another factor is the number of defeats inflicted on the Government. Frankly, they have not been in short supply lately, which does not suggest that there is a great imbalance.

[Lord Anderson of Swansea (Lab)]

My Lords, another startling statistic for the House is that the average age of Labour Peers is now 74 years and three months while that of Conservative Peers is 68 years and six months. So, actuarially, the numbers gap will increase over time. When this is coupled with the Prime Minister’s ignoring of the Burns report recommendations and allegedly selling Peerages and blocking my noble friend’s Bill, does this mean that the Prime Minister is now trying to ensure, as in the past, an overall majority for the Conservative Party?

[Lord True (Con)]

My Lords, the allegation that the Prime Minister is selling Peerages is a disgrace and should not be made in this House. So far as his broad point is concerned, it is true and fair to say that all Benches in this House need to be considered and that the refresh of the House should go on. My right honourable friend—in addition to a number of distinguished former Labour MPs whom he has sent here—has appointed 11 new Labour Peers since 2019. That is as many as were sent here by Gordon Brown.

[Lord Trefgarne (Con)]

My Lords, does my noble friend not recall that, back in 1999, the then Labour Government removed about 600 Conservative supporters in a single Bill on a single day? A one-clause Bill to repeal that Bill would solve the Chief Whip’s problems.

[Lord True (Con)]

My Lords, we have no plans to do so.

[Baroness Smith of Basildon (Lab)]

My Lords, I return to the point made by the noble Lord, Lord Cormack, about the Burns report. When the Lord Speaker’s committee on the size of the House reported on 31 October 2017, it made some judgments on what the relative size of the political parties would be in 2022. It suggested that the Official Opposition Benches should have about 166 Peers as the number in the House reduced, while the Conservative Benches would have around 210. Today, we see the Labour Benches at 167—roughly right—but the Conservative Benches are 47 Peers higher than anticipated in the normal reduction of the House, as proposed by the noble Lord, Lord Burns. That might not have been evident in Monday evening’s votes, perhaps because the Official Opposition are punching above their weight and a number of Conservative Peers just went home. However, is it not the case that the Burns report was accepted by all parties in your Lordships’ House as being a way forward? Is this not another example of the Government thinking that the rules apply to other people but not themselves?

[Lord True (Con)]

No, my Lords, I do not agree with the noble Baroness opposite. I note that the Labour leader has said that he wants

“a democratic second chamber representing the nations and regions of the UK.”

I am sure that that gets fervent support on the Benches opposite. I repeat the point that I made: there is a factor in the way that this House operates. The Government have suffered 164 defeats in this House in two years—well over twice as many as were inflicted on Gordon Brown’s whole Government and more than in the first five years of Sir Tony Blair’s Government.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, in view of the climate emergency and the huge problems facing the world, in which Greens are extremely well versed, will the Minister please suggest to the Prime Minister that in his resignation honours he could perhaps put a few Greens into your Lordships’ House ?

[Lord True (Con)]

My Lords, I think the Greens are very capable of making their voice heard in your Lordships’ House.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, the Minister has twice referred to the number of defeats. There is no point in having a second Chamber if we always agree with the first Chamber. The whole point is that we have different views here. We ask the other House to think again. But sort of threatening the numbers because we defeat something that the Government have done and ask them to think again is surely not the right way to consider the role of this House.

[Lord True (Con)]

My Lords, I made no such threat—I do not threaten your Lordships’ House. I am merely drawing your Lordships’ attention to some empirical facts: 14 defeats in one night were more than in the whole of the last Session of the Gordon Brown Government.

[Lord Harris of Haringey (Lab)]

My Lords, is that not perhaps a reflection of the quality of the legislation that the Government are bringing before this House? Could the noble Lord expand on his comment about the desirability of achieving “political balance” in this House and define for us what he means by that?

[Lord True (Con)]

My Lords, this Government bring forward legislation of a quality that seems to please the other place rather more than your Lordships—that I confess. On an overall balance, I have said that the refreshing of the House needs to take into account the interests of all sides of the House.

[Baroness Lawrence of Clarendon (Lab)]

My Lords, when David Cameron was Prime Minister and votes were not going his way, he elected to abolish the House of Lords. What has changed since then?

[Lord True (Con)]

Well, I am not aware of that, my Lords. To my knowledge, your Lordships’ House has been abolished only once: in 1649—and I am pleased to say that it was revived in 1660.

Vaccine Patents Waiver

Monday 24th January 2022 Lords Chamber

Question

14:57

Asked by

[Baroness Chakrabarti]

To ask Her Majesty’s Government what plans they have to support a vaccine patents waiver at the World Trade Organisation.

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, the waiver proposal of the World Trade Organization goes beyond patents and vaccines, encompassing most intellectual property on all Covid 19-related products and technologies, with no geographical or duration limits. While HM Government remain open to initiatives that help with vaccine production and distribution, there is no evidence that waiving intellectual property protections would advance these objectives. We must focus on actions that will make a real difference, including delivering and administering vaccines globally.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for that, but he will understand that my Question is in the context of a previous prime ministerial promise and an obvious logical need to vaccinate the planet. The UK is paying the highest recorded price for the Pfizer vaccine. What work are Her Majesty’s Government doing to encourage Pfizer to share its necessary technology—not just the recipe—with the 100 potential mRNA manufacturers in Africa, Asia and Latin America identified by Médecins Sans Frontières and Human Rights Watch? They could be producing these vaccines now.

[Lord Grimstone of Boscobel (Con)]

My Lords, we are still learning about coronavirus and about how to respond effectively to its mutations. One thing that we do know is that continued innovation by companies such as Pfizer is required to enable scientists to continue to develop health products and technologies, including vaccines to help tackle the virus.

[Baroness Meacher (CB)]

My Lords, in part because we have failed to achieve a vaccine permit waiver, there will be further variants of Covid, which may well be resistant to our vaccines. The WHO is urging countries across the world not to loosen the controls and protective measures that they have—including, for example, compulsory mask-wearing. Will the Minister immediately, as a matter of urgency, urge his colleagues to reconsider the ending of the controls that we have had over previous weeks?

[Lord Grimstone of Boscobel (Con)]

My Lords, I will certainly pass those comments on to my colleagues.

[The Lord Bishop of Bristol]

My Lords, the increase in production of vaccines, which is now widely known, will lessen supply demands, but of urgency is the development of healthcare systems for delivery. In the context of international aid cuts, what are Her Majesty’s Government doing to support the development of effective delivery systems?

[Lord Grimstone of Boscobel (Con)]

My Lords, it is absolutely right to say that challenges to vaccine equity lie with supply and manufacturing constraints, pressures on health systems to administer available vaccines, supply chain issues such as export restrictions and tariff barriers, and vaccine confidence. These are the matters that we should be concentrating on.

[The Lord Privy Seal (Baroness Evans of Bowes Park) (Con)]

My Lords, it is the turn of the Liberal Democrats. The noble Lord, Lord Jones of Cheltenham, wishes to speak virtually, and I think this is a convenient point to call him.

[Lord Jones of Cheltenham (LD) [V]]

My Lords, now that the UK is outside the European Union, do the Government understand that being the champion of a vaccine patents waiver may be the perfect way to win friends and influence people in other countries, but may also, according to the British pharmaceutical industry, have the unintended consequence of reducing vaccine production and research?

[Lord Grimstone of Boscobel (Con)]

My Lords, intellectual property rights and their continued protection are the way to keep innovators innovating, creators creating and investors investing. That is what will lead to more research.

[Baroness Sugg (Con)]

My Lords, ramping up production will take a number of years, particularly if there is no TRIPS waiver. Until then, richer countries sharing their doses with lower-income countries will be critical to ending the pandemic. Will the Minister commit to doing more on transparency here, so that we join other countries in publishing the type and number of doses that we are sharing, along with their sell-by dates?

[Lord Grimstone of Boscobel (Con)]

My noble friend makes a good point. It is interesting that, as reported in the Financial Times last week, Kate O’Brien, the WHO’s head of vaccines, said that the health body saw a

“very positive outlook for supply”

in 2022. But she cautioned that that was predicated on dose-sharing continuing, and manufacturers continuing to honour deals brokered under COVAX. This is the way forward.

[Baroness Evans of Bowes Park]

My Lords, the noble Lord, Lord Campbell-Savours, wishes to speak virtually. I think this is a convenient time for me to call him.

[Lord Campbell-Savours (Lab) [V]]

My Lords, if no one is safe until everyone is safe, why cannot the 100-plus vaccine producers referred to by my noble friend Lady Chakrabarti worldwide—in Africa, Asia and Latin America—be licensed under a TRIPS waiver to produce the vaccine in dedicated production areas, within approved plants and facilities, totally under the quality control of personnel seconded from advanced nation producers? By that means, we can avoid potential IP waiver problems, preserve quality, and even make profits, if they really are so necessary.

[Lord Grimstone of Boscobel (Con)]

My Lords, we have seen no evidence that intellectual property is a barrier to the production or supply of Covid-19 goods, including vaccines. We will continue to engage constructively in debates of the World Trade Organization on these matters, including the points that the noble Lord makes.

[Lord Hannay of Chiswick (CB)]

My Lords, does the Minister not agree that if the Government’s objective—an admirable one—is that vaccines should be equitably available around the world, it has not been a total success so far? It has fallen a bit short. If he agrees, should not the Government be focusing now on how to find measures that will provide for equitable distribution when the next pandemic comes along, and not leave us still arguing to a deadlock in Geneva?

[Lord Grimstone of Boscobel (Con)]

My Lords, I am really pleased to say that the UK has been a world leader in ensuring that developing countries can access vaccines, through our early support to the COVAX scheme and commitment to donate vaccines. To date, the UK has delivered more than 30 million doses to countries in need, and we will have donated 100 million by June 2022. I am very pleased to say that 80% of those donations will go to COVAX.

[Baroness Chapman of Darlington (Lab)]

My Lords, my noble friend Lady Chakrabarti is right to raise this matter, and I agree with what she said. Less than 10% of the population in the world’s poorest countries are vaccinated; the efforts that have been made so far have failed. The Minister said that the current proposal before the WTO was too broadly drawn. If that is the case, and he does not want to back that which has been supported by more than 100 countries, including South Africa and India, perhaps he would consider proposing his own solution on patent waivers. Most people seem to think that it would help the situation.

[Lord Grimstone of Boscobel (Con)]

My Lords, the UK remains open to all initiatives that will have a demonstrable impact on vaccine production and distribution, and we will continue to engage constructively in discussions at the WTO to that end and bring forward our own proposals as necessary.

[Lord Purvis of Tweed (LD)]

My Lords, when I raised the matter of a TRIPS waiver with the Minister during the passage of the Trade Bill on 1 October 2020, when my noble friend Lady Sheehan had an amendment to it, the noble Lord said that it was too soon. Nearly a year later, I pressed the noble Lord, Lord Parkinson of Whitley Bay, who said that the Government remained unconvinced. Six months on, only 10% of Africa is fully vaccinated and, shockingly, 100 million doses had to be declined because they were too close to their expiration date. Without there being a TRIPS waiver, what is the Government’s core estimate of when Africa will be as fully vaccinated as Europe?

[Lord Grimstone of Boscobel (Con)]

My Lords, I am afraid that there is no evidence at all that an IP rights waiver of the kind that the noble Lord suggests would help us to meet his objectives. The reality is that a proposal for a TRIPS waiver would break up the very framework that helped to produce Covid-19 vaccines at an unprecedented pace. That is the key point.

[Lord Lancaster of Kimbolton (Con)]

My Lords—

[Lord Browne of Ladyton (Lab)]

My Lords—

[Noble Lords]

This side!

[Lord Lancaster of Kimbolton (Con)]

Actually, I give way to the noble Lord, Lord Browne, who has been trying to speak for some time.

[Lord Browne of Ladyton (Lab)]

I am very much obliged to the noble Lord. What assessment have the Government made of the establishment in Cape Town by Afrigen Biologics and Vaccines of the first Covid mRNA vaccine technology transfer hub for vaccine production in Africa? It benefits from the fact that Moderna has effectively suspended its patent rights during the pandemic. The European Union, the World Health Organization and numerous countries, prominently France, have funded this project in a Commonwealth country. Have the Government thought about a similar initiative with AstraZeneca, given that 97% of the investment in the AstraZeneca vaccine was from the Government or from philanthropy, not from other investors?

[Lord Grimstone of Boscobel (Con)]

My Lords, the noble Lord is right to put that example before the House, and I shall make sure that I have a look at it and see whether we can follow it up.

Online Sexual Harassment of Children

Monday 24th January 2022 Lords Chamber

Question

15:08

Asked by

[Lord Farmer]

To ask Her Majesty’s Government what steps they intend to take in response to the report by the Children’s Commissioner Talking to your child about online sexual harassment: A guide for parents, published on 16 December 2021, and in particular the finding that children are “stumbling across” commercial pornography.

[The Parliamentary Under-Secretary of State, Department for Digital, Culture, Media and Sport (Lord Parkinson of Whitley Bay) (Con)]

My Lords, we warmly welcome this report, and the Children’s Commissioner’s support in protecting children online. The report’s findings underline the need for the measures that we are proposing in the online safety Bill, which will require a wide range of sites to take robust steps to prevent children accessing pornography online. We will include the Children’s Commissioner’s guidance in our online resources for parents and organisations to promote media literacy.

[Lord Farmer (Con)]

My Lords, I thank my noble friend the Minister for his reply. The Joint Scrutiny Committee and today’s Select Committee report refer to harmful and addictive online porn, and children’s exposure to illegal and extreme content. While parents have a key role, guidance for them is a fairly puny tool with which to police the internet. Given that research is increasingly amassing about pornography’s harms, especially to young people, can the Minister advise why age verification is not on the face of the Bill?

[Lord Parkinson of Whitley Bay (Con)]

My noble friend is right to point to the harms that pornography can do to people who are viewing it far too early in their lives. The online safety Bill aims to address this, and we are grateful to the Joint Committee and the Select Committee in another place for their views on that legislation. The online safety Bill will not mandate the use of specific technologies to comply with the new duties it contains because it is vital that the Bill remains future-proof and able to change as technology changes to prevent new threats. However, we expect companies to use age-verification technologies to prevent children accessing online pornography.

[Baroness Benjamin (LD)]

My Lords, recent findings by the Internet Watch Foundation—I declare an interest as one of its champions—state that the seven to 10 age group is the fastest growing group appearing in self-generated child sexual abuse material. Without the IWF, this material can stay online for many years, causing mental health issues and untold damage in later life. What steps are the Government taking to give age-appropriate online safety advice to this age group, immediately?

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness is a tireless campaigner on this important issue and the Internet Watch Foundation does very important work. We are keen to bring the online safety Bill to your Lordships’ House and get it on the statute book for the protections it will bring. In the meantime, we are taking steps, and asking the Children’s Commissioner to conduct this report was part of that. In addition, the new relationship, sex and health education curriculum is clear that, by the end of secondary school, pupils should be taught about the impact that viewing harmful content, such as pornography, can have. We continue to keep that under review.

[Lord Framlingham (Con)]

My Lords, until quite recently a child’s bedroom was a safe haven; now every child’s bedroom has had a door cut in it marked “the internet”. A child of whatever age, at whatever time of day or night, can go through that door and their parents will not know where they have gone, who they are talking to and what they are doing. The effects are quite horrendous, not least when the example is hard pornography. Is it any surprise that mental illness and suicides are increasing in this age group? It is quite plain the reason for it. Can the Minister do all we possibly can as a matter of the greatest urgency to close this horrible door?

[Lord Parkinson of Whitley Bay (Con)]

My noble friend is right, and of course it is not just on computers but on smartphones that people are able to access the internet. The majority of people, children included, have a beneficial experience online; we are keen to maintain that, while bringing in the safeguards that are important for them, and that is what the online safety Bill seeks to do. In the meantime, we are very grateful to the Children’s Commissioner for her work in helping parents and grandparents have the important conversations with young people who are using the internet.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, children’s safety online is vital to protect their mental health and protect them from many harms. This is not an issue solely for England; it is a UK-wide issue. In view of that, will the Minister, in association with and alongside the online safety Bill, consider a summit of the nations and regions of the UK, so that positive resolutions that will help eradicate this and a plan of implementation to prevent children being abused online can be brought forward?

[Lord Parkinson of Whitley Bay (Con)]

My Lords, the issue is even broader than the noble Baroness suggests. It is international in scope, and the Government are working with Governments around the world and online providers based in other jurisdictions—we do that regularly. We are engaging with them on the online safety Bill. Those discussions are informing that Bill, which will be an important part of enforcing the action across the globe that we all want to see.

[Baroness Bull (CB)]

My Lords, the Minister mentioned the relationship and sex education guidance and students being aware of these risks and dangers by the end of secondary school. Does he not think that may be a little late, given what we know about the age of children who are targeted and vulnerable online? Are the Government confident that teachers delivering this education are adequately trained to be the providers of this crucial information for young people?

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness is right: it is by the end of secondary school that this should have been achieved, but of course the process begins earlier. One finding in the Children’s Commissioner’s report is that parents often underestimate the extent to which, and the age at which, their children are coming into contact with pornography and other online harms. Her very useful report gives practical advice to parents about how they can start having those conversations in an age-appropriate way.

[Lord Grade of Yarmouth (Con)]

My Lords, can my noble friend the Minister reassure the House that while, quite commendably, the accent is on pornography and other harms, gambling is also a very serious issue online? Loot boxes, which do not come under the Gambling Act, are in fact the entry point for kids to learn how to gamble.

[Lord Parkinson of Whitley Bay (Con)]

That is one reason why the online safety Bill will take the approach of setting out in secondary legislation the sorts of harms that can affect children and other vulnerable people—and indeed all internet users—so that we can keep on top of emerging threats and make sure that our legislation does so as well.

[Baroness Merron (Lab)]

My Lords, even a single conversation with a child about their online safety could reduce their risk of seeing sexual content or being persuaded to share indecent images. I agree with the Minister that the guide for parents from the Children’s Commissioner is extremely helpful, but what further steps will the Government take to encourage and equip not just parents but grandparents and other relatives to talk to their children about online dangers? Will the Government throw their weight behind a sustained public information campaign to encourage this?

[Lord Parkinson of Whitley Bay (Con)]

The noble Baroness is right that it is not just for parents but all responsible adults in society to play a part. The Government are doing that through the Online Media Literacy Strategy, which we published in July last year, and I have mentioned the changes that have been made to the curriculum. We are consulting on how to strengthen that further for the version that will be published in September this year, so we are keeping it under review.

[Lord Cormack (Con)]

My Lords, does my noble friend agree that one of the greatest crimes of the moment is the destruction of childhood innocence, in which the internet plays such an enormous part? It does far more harm in many homes in the land than it does good. Can we please make sure that this Bill is as foolproof as pre-legislative scrutiny can make it? It must have post-legislative scrutiny as well.

[Lord Parkinson of Whitley Bay (Con)]

My noble friend is right. As technology evolves, children are susceptible to a broader range of harmful content on a wider range of services. Of course, these services can bring great benefits to those who use them legitimately; that is why the approach set out in the online safety Bill will go much further than, for instance, the Digital Economy Act. We are grateful to the Joint Committee and everyone who has helped us to improve it so far.

[Lord Brooke of Alverthorpe (Lab)]

My Lords, the Sunday Times yesterday alleged that there is a major hole in the Bill and that there is no provision for protecting children from grooming in the new technology of the metaverse. What does the Minister think about that and does he believe that there is a case for urgent action to be taken?

[Lord Parkinson of Whitley Bay (Con)]

I read the very disturbing report in the Sunday Times to which the noble Lord referred. That is why the online safety Bill takes the approach of not being specific on certain technologies and making sure that our legislation can be future-proofed so that, as the internet continues to develop and new technologies are invented, the legislative protections for users keep pace with that. The metaverse, to which he referred, is a key example.

[Lord Cashman (Lab)]

My Lords, I reinforce the point made by the noble Baroness, Lady Bull, that inclusive relationship and sex education early in schools is vital. Does the Minister therefore agree that such relationship education empowers children as to which are the most appropriate and inappropriate relationships that can be developed online?

[Lord Parkinson of Whitley Bay (Con)]

Yes, I would agree; I think the Children’s Commissioner’s guidance is very beneficial for teachers, as well as for parents, grandparents and guardians. As I say, we keep the curriculum under regular review, so we can make sure that new threats to children are being covered in it and so that conversations can be had in an age-appropriate way.

Post Office: Horizon Compensation

Monday 24th January 2022 Lords Chamber

Private Notice Question

15:19

Asked by

[Lord Arbuthnot of Edrom]

To ask Her Majesty’s Government whether the £685m set aside for the Post Office Historical Matters Compensation scheme will cover those claimants involved in the litigation who were not convicted or prosecuted, as well as sub-postmasters whose convictions have been overturned.

[The Parliamentary Under-Secretary of State, Department for Business, Energy and Industrial Strategy (Lord Callanan) (Con)]

My Lords, the Government have indeed set aside up to £685 million to support the Post Office in paying compensation to postmasters with quashed Horizon-related convictions. The Post Office reached a settlement to pay compensation of £42.75 million, plus costs, in 2019 with a further group of postmasters. The Post Office has separately set up a historical shortfall scheme to provide compensation to postmasters who suffered Horizon-related losses but were not convicted or prosecuted and were not part of the GLO.

[Lord Arbuthnot of Edrom (Con)]

My Lords, Fujitsu knew that it could—and did—alter the accounts of sub-postmasters without their knowledge. It knew that the Government were denying that this could be done. It knew that the sub-postmasters were being prosecuted for those altered accounts. Is it not high time, and beyond, that Fujitsu began to become part of the solution rather than being part of the problem?

[Lord Callanan (Con)]

The noble Lord makes an important point, with which I know many in the House will have some sympathy, but it is important that we await the outcome of Sir Wyn Williams’s inquiry. We all have our suspicions about this and we all have our views, but the inquiry has been set up to provide us with definitive answers to questions such as the very good one that the noble Lord has posed.

[Lord Fox (LD)]

My Lords, fewer than a third of the 2,005 applications have been dealt with so far, and this is a pattern—we saw it with Windrush. First, there is a campaign, then there is a big political announcement. Money is apparently made available and then everything grinds to a halt. This is bureaucracy standing in the way of settling personal tragedies. Will the Minister go back to his department and get things moving?

[Lord Callanan (Con)]

I think the noble Lord is being a little unfair. He referred to a third, but it depends which of the cases he is talking about. There are a number of different aspects to this. There are those who had their convictions overturned, most of whom have already received £100,000 in interim compensation. On top of that there is the historical shortfall scheme, which is proceeding as fast as we can. The reason we set this up is to precisely avoid long delays through litigation, and obviously the process itself is managed through the Post Office and its advisers. But I will certainly take his message back. Nobody wants to see this drag on for too long.

[Lord Bassam of Brighton (Lab)]

My Lords, I would like to return to the point made by the noble Lord, Lord Arbuthnot. It seems quite wrong that a company that knew what it was doing, knew that the kit was faulty, and knew that mistakes were being made has not been involved in this case. They should be making payments to the Government so that the Government can fully compensate all those who have being wrongfully imprisoned, charged within this scheme and have suffered years of life-destroying consequences. That company must be held responsible, and the Government should make sure that is the case.

[Lord Callanan (Con)]

Both noble Lords who have raised this matter make an important point. I very much hope that those who were judged responsible will be held accountable, but it is important to wait for the outcome of the independent public inquiry that has been launched and is proceeding before we apportion blame.

[Lord Laming (CB)]

My Lords, I want to follow up on those two questions. Is it not extraordinary that years have passed since this came to light, that people’s lives were completely ruined by what happened and that the Government are now having to put forward this huge sum of money, yet nobody from the Post Office has been held accountable for what happened?

[Lord Callanan (Con)]

It is beyond extraordinary, if I can disagree slightly with the noble Lord. The whole situation is tragic, appalling—there are numerous words we could use to describe the depth of the suffering of so many people. Financial compensation will never put right what went wrong. Again, we all think we know who was responsible and where the blame lies. The public inquiry has been established and is proceeding so that we can get a full account; we already have partial accounts through the various High Court cases that have proceeded. The importance of the inquiry is so that we can get a full account of exactly what happened over many years, through different regimes of government and people in leadership roles at the Post Office, and blame can be apportioned in the right way.

[Baroness Ritchie of Downpatrick (Lab)]

My Lords, some of these postmasters who live in Northern Ireland have had their lives and livelihoods destroyed by the actions of this internet scheme owned, I suppose, by Fujitsu. As my noble friend Lord Bassam and the noble Lord, Lord Arbuthnot, have already asked, could the Minister ensure that Fujitsu is held responsible and accountable for its actions, which have left many lives destroyed and have financially destroyed people as well?

[Lord Callanan (Con)]

Of course, it is not just Northern Ireland: throughout the whole United Kingdom people have been financially, emotionally and criminally destroyed by this case. No words that we could utter here could minimise the terrible suffering and distress that has gone on. Again, I am sorry to be practical and hard-headed about this, but we have to return to the central point: we all think we know where blame lies, but let us wait for the results of the inquiry. By all means, in the meantime get on with paying compensation to those who have suffered—but let us have a proper inquest at the end of the inquiry, when we have the full results, of exactly who was to blame.

[Baroness Altmann (Con)]

My Lords, I congratulate my noble friend Lord Arbuthnot and all involved on their persistence and tenacity in pursuing this egregious injustice. I am also delighted that the Government have set aside money to at least start to address these issues. Could my noble friend the Minister tell or reassure the House whether those who have been affected will be fully compensated, including for the legal costs they have incurred? Obviously no money can offset the emotional and psychological damage done, but I understand that there are concerns that some of those who have had to go through the courts may still end up financially worse off as a result.

[Lord Callanan (Con)]

I certainly join my noble friend in paying tribute to the work of the noble Lord, Lord Arbuthnot, both in this place and the other place, as well as—to be fair—a number of Members on all sides of the House who drew attention over a number of years to this slowly unfolding catastrophe. This issue is an excellent example of some great work done by parliamentarians. With regard to my noble friend’s question, the answer is yes: the legal costs are covered as part of the payments.

[Lord Grade of Yarmouth (Con)]

My Lords, I wonder if the Government would remove Fujitsu from their preferred suppliers tendering for government contracts, pending that inquiry’s result.

[Lord Callanan (Con)]

I do not know whether Fujitsu is still on the tender lists or is the subject of any government contracts, but I will certainly find out and write to the noble Lord on that.

[Lord Cormack (Con)]

My Lords, I have several times urged my noble friend to put a terminal date on this. He talked about the “slowly unfolding” tragedy, and he is right, but it is a slowly ending tragedy as well. Of course we must have the inquiry, but can we please set a date—I have suggested before the end of June—for when this will be resolved and people will get their due deserts?

[Lord Callanan (Con)]

I agree with my noble friend, because I would obviously like to see this all end as much as possible. When I said “slowly unfolding”, I meant that the revelations of the whole scandal came out over many years as a result of a number of different stages of parliamentary action, legal cases, et cetera. I assure him that we are keen to bring this to a resolution as quickly as possible in terms of compensation, but there are a number of different aspects to it, as I explained in my reply to the noble Lord, Lord Fox. Many postmasters are still in the process of having their convictions overturned. That process is ongoing, as is the progress of the historical shortfall scheme, which we have deliberately designed to try to avoid costly, long-drawn-out legal proceedings.

Taxis and Private Hire Vehicles (Safeguarding and Road Safety) Bill

1st reading
Monday 24th January 2022 Lords Chamber

First Reading

15:30

The Bill was brought from the Commons, read a first time and ordered to be printed.

Approved Premises (Substance Testing) Bill

1st reading
Monday 24th January 2022 Lords Chamber

First Reading

15:30

The Bill was brought from the Commons, read a first time and ordered to be printed.

Coronavirus Grant Schemes: Fraud

Monday 24th January 2022 Lords Chamber

Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Tuesday 18 January.

“Since March 2020, the Government have delivered a comprehensive multibillion-pound package to support individuals and businesses during the pandemic. As the House would expect, the Government have taken the issue of potential fraud relating to Covid grant schemes extremely seriously.

Robust measures were put in place to control error and fraud in the key Covid support schemes from their inception. For instance, to minimise the risk of fraud and error and unverified claims, the coronavirus job retention scheme and self-employment income support scheme were designed in a way to prevent ineligible claims being made up front, and made grants for employees and businesses using existing data held on Her Majesty’s Revenue and Customs’ systems. That included cut-off dates around scheme eligibility and the need for customers to be registered for pay-as-you-earn online or self-assessment. In 2020-21, HMRC recovered £536 million of overclaimed grants.

To further bolster anti-fraud measures, at the spring Budget last year, the Government invested more than £100 million in a taxpayer protection taskforce of more than 1,200 HMRC staff to combat Covid-related fraud. This taskforce is expected to recover between £800 million and £1 billion from fraudulent or incorrect payments during 2021-22 and 2022-23.

The Government’s Bounce Back Loan Scheme supported more than £46 billion of finance to 1.5 million businesses. We are continuing to actively work with the British Business Bank, lenders and fraud authorities to tackle fraud and to recover loans obtained fraudulently. The value of prevented fraud was £2.2 billion, and we continue to recover further funds through our counter-fraud work. In addition, as part of the spring Budget last year, we announced plans to significantly strengthen enforcement activity against fraudulent bounce-back loans. That included introducing processes with the Insolvency Service to prevent the fraudulent dissolution of companies being used as a means to escape liabilities, granting the Insolvency Service new powers and investing further in the National Investigation Service.

Importantly, throughout the pandemic we have been transparent about the estimated level of fraud and error in the Covid schemes, and HMRC’s annual report and accounts, which were laid before the House in November last year, included the latest information on error and fraud in the HMRC-administered Covid-19 schemes. Figures on estimated losses and the bounce-back loans, including those due to fraud, were published in the Department for Business, Energy and Industrial Strategy’s annual reports and accounts.

Given the unprecedented efforts that the Government have made to protect jobs and livelihoods during this pandemic, it would have been impossible to prevent all related fraud. However, we have taken reasonable steps, and will continue to do so, to deflect and combat that fraud, and we will continue to be vigilant.”

15:31

[Lord Tunnicliffe (Lab)]

My Lords, last week, the Government objected to the £4.3 billion figure quoted in various news reports. In many senses, we would be delighted if the extent of fraud arising from the Government’s coronavirus support scheme was smaller than first thought. Is the Minister able to provide a more accurate or precise figure today? If not, how will the department calculate this and when can we expect to see the correct sum?

In looking ahead to this UQ last Thursday, the Minister did not answer my question about fairness. Is he able to comment today on why the Government expect working people to cancel out these losses? That would be bad enough in normal times, but is surely worse when families face an unprecedented cost-of-living crisis.

[The Minister of State, Cabinet Office and the Treasury (Lord Agnew of Oulton) (Con)]

I thank the noble Lord for his important question. I am here to defend the Government’s record in the deployment of counter-fraud measures over the last two years or so. However, I will only be able to do that in part. The assertion made by the Economic Secretary to the Treasury in the Commons debate last week that the priority was speed of distribution of funds is absolutely correct, but what has followed has been nothing less than desperately inadequate. Given the time available, I will focus on one or two emblematic failures, but these issues run far wider.

The oversight by both BEIS and the British Business Bank of the panel lenders of the BBLS has been nothing less than woeful. They have been assisted by the Treasury, which appears to have no knowledge of, or little interest in, the consequences of fraud to our economy or society. Much store has been given to the extra money allocated to HMRC, but it took a year to happen, and this department was already the most competent and well-funded in that discipline; whereas at the beginning of Covid, BEIS had the grand total of two counter-fraud officials on its staff, neither of whom were experienced in the subject. They refused to engage constructively with the counter-fraud function that sits in the Cabinet Office, has considerable expertise and reports directly to me.

Schoolboy errors were made: for example, allowing more than 1,000 companies to receive bounce-back loans which were not even trading when Covid struck. They simply failed to understand that company formation agents hold in stock companies with earlier creation dates. I have been arguing with Treasury and BEIS officials for nearly two years to get them to lift their game; I have been mostly unsuccessful.

We move now to a new and dangerous phase: banks’ ability to claim on the 100% state guarantee for non-payment. We do this without implementing a standard bar of quality assurance on what we expect as counter-fraud measures; we know that we have serious discrepancies. For example, three out of the seven main lenders account for 87% of loans paid out to companies already dissolved. Why is the ratio so skewed? Two of the seven account for 81% of cases where loans were paid out to companies incorporated post-Covid, as I referred to a moment ago. One of the seven accounts for 38% of the duplicate BBL application checks that were not carried out after the requirement was enforced. Bizarrely, it took six weeks to get the duplicate check into place, during which time 900,000 loans, or 60% in total, were paid out, bearing in mind that some £47 billion has been paid out.

If only BEIS and the British Business Bank would wake up, there is still time to demand data and action on duplicate loans. Why will they not do it? Despite pressing BEIS and the BBB for over a year, there is still no single dashboard of management data to scrutinise lender performance. It is inexcusable. We have already paid out nearly £1 billion to banks claiming the state guarantee. The percentage of losses estimated to be from fraud rather than credit failure is 26%; I accept this is only an early approximation, but it is a very worrying one. I will place in Hansard a copy of my letter to the chairman of the British Business Bank, sent on 16 December, addressing some of these points. I have still not received an answer.

I have at least four differences of opinion with Treasury officials: first, on urgent improvements in lender performance data, I simply want the bar to be set at what the best of the panel banks can deliver—to repeat, there is not even a common definition of fraud to trigger the payment of the guarantee; secondly, far greater challenge of lender banks when we uncover inconsistency in data; thirdly, educating Treasury officials as to why reliance on audits is far too reactive and generally happening well after the horse has bolted; fourthly, a failure by Treasury or BEIS officials to understand the complete disjunction between the level of criminality—probably hundreds of thousands of pounds—and enforcement capability. For example, NATIS, a specialist agency, can handle around 200 cases a year; local police forces might double that.

Noble Lords can see that it is my deeply held conviction that the current state of affairs is not acceptable. Given that I am the Minister for counter-fraud, it feels somewhat dishonest to stay on in that role if I am incapable of doing it properly, let alone of defending our track record. It is for this reason that I have, sadly, decided to tender my resignation as a Minister across the Treasury and Cabinet Office with immediate effect. I would be grateful if my noble friend would pass this letter to the Prime Minister at his earliest convenience. It is worth saying that none of this relates to far more dramatic political events being played out across Westminster. This is not an attack on the Prime Minister, and I am sorry for the inconvenience it will cause. Indeed, I think any Prime Minister should be able to reasonably expect that the levers of government are actually connected to delivering services for our citizens.

I hope that, as a virtually unknown Minister beyond this place, giving up my career might prompt others more important than me to get behind this and sort it out. It matters for all the obvious reasons, but there is a penny of income tax waiting to be claimed here if we just woke up. Total fraud loss across government is estimated at £29 billion a year. Of course, not all can be stopped, but a combination of arrogance, indolence and ignorance freezes the government machine. Action taken today will give this Government a sporting chance of cutting income tax before a likely May 2024 election. If my removal helps that to happen, it will have been worth it.

It leaves me only to thank the noble Lord, Lord Tunnicliffe, for his courteous but attentive role as shadow Minister of my portfolio, and to thank noble friends, many of whom I know will carry on their scrutiny of this important area. Thank you, and goodbye.

[Noble Lords]

Hear, hear!

[Baroness Smith of Basildon (Lab)]

My Lords, I think we have just witnessed one of the most dramatic moments we have ever seen in your Lordships’ House, from a Minister who felt his integrity meant that he could no longer ensure he remained a member of the Government. I do not know if the noble Lord on the Front Bench wishes to comment; there is nobody else to take questions, so he may wish to just move to the next business.

[Baroness Kramer (LD)]

My Lords, may I take this opportunity to say on behalf of these Benches how much we appreciate the honour and integrity that has just been displayed by the Minister’s resignation? His resignation has not yet been accepted, so he still remains the Minister, but I do not think anybody could have raised questions more forcefully, accurately or completely than he has. On a personal level, I want to say how much we will miss the noble Lord, Lord Agnew, in this role, not least because of his integrity.

[The Deputy Speaker (Baroness Fookes) (Con)]

My Lords, we must now move on.

Northern Ireland (Ministers, Elections and Petitions of Concern) Bill

3rd reading
Monday 24th January 2022 Lords Chamber

Third Reading

15:39

Moved by

[Lord Caine]

That the Bill do now pass.

Motion

Moved by

[Lord Caine]

That the Bill do now pass.

[The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Caine) (Con)]

My Lords, I promise to be slightly less dramatic. I first want to express my sincere gratitude to all noble Lords who have participated in proceedings on this short Bill and to thank them for their thoughtful and sometimes challenging contributions, not least on the very odd occasion when the debate has strayed beyond the narrow confines of the Bill.

I welcome the positive engagement and constructive support for the Bill from all sides of the House and put on record my thanks to the noble Baroness, Lady Smith of Basildon, the noble Lord, Lord Coaker, the noble Baroness, Lady Suttie, and all noble Lords from Northern Ireland itself.

I also thank the Bill team at the Northern Ireland Office, officials in the Northern Ireland Assembly and, last but not least, my noble friend, Lord Younger of Leckie—not just for his support and very wise counsel on this piece of legislation, but also for his handling of much Northern Ireland business in your Lordships’ House in recent times.

The Bill has been debated extensively during its passage and I am sure that noble Lords will be relieved to hear that, in accordance with Standing Orders, I do not intend to rehearse its provisions again. It is a faithful implementation of a number of measures contained in the New Decade, New Approach document, which paved the way for the re-establishment of devolved government in Northern Ireland in January 2020 and was itself the product of detailed and lengthy negotiations over a period of nearly three years.

The purpose of the Bill is to seek to give greater resilience to the institutions established under the 1998 Belfast agreement and to provide for greater continuity in decision-making. I am pleased that with the support of opposition parties we have been able to agree on early commencement of the important measures contained in it.

This Government remain deeply committed to the implementation of the Belfast agreement and its successors, and to building a stable, prosperous and shared Northern Ireland, within this United Kingdom, for everybody—a Northern Ireland where politics works, the economy grows and society is stronger and more united. I hope that this Bill, while in no way a panacea, can make a contribution to supporting those fundamental objectives. I beg to move

[Baroness Smith of Basildon (Lab)]

My Lords, I add our thanks to the Minister. As we have just heard in the drama a moment ago, a Minister’s life is not an easy one. I think that we are all still reeling from the shock resignation of the noble Lord, Lord Agnew, who clearly cared a great deal about his work. His colleagues will mourn his loss from the Front Benches, and this House will admire his integrity. He may go down in history for the way he resigned, showing his integrity.

I thank the Minister for his work on this Bill, which is, I think, the first one that he has taken through the House, although his commitment, interest and work on Northern Ireland issues for many years have preceded him. In many ways this was a short, perhaps relatively non-controversial, Bill, though we had our moments. I thank him for the way in which he and his Bill team engaged with noble Lords across the House. I am sure that the noble Baroness, Lady Suttie, if she were here, would say the same, and would thank him for his meetings.

We had our own dramatic moments as we prepared to come to the House to debate a particular amendment. We heard the Prime Minister say, at Prime Minister’s Question Time, that that amendment would not be moved, when we had all expected it in the afternoon. So perhaps this is the time for dramatic moments in the House. Nevertheless, I add our commitment and our thanks to the noble Lord. We await the further Bill on Northern Ireland that we were supposed to be getting and had expected—the legacy Bill—which will also, I am sure, involve detailed discussions, and I hope that he will be willing to engage in the same way with us on that Bill as on this.

15:45

[Baroness Hoey (Non-Afl)]

My Lords, I have a few words to say on this Bill. I congratulate the noble Lord, Lord Caine, on getting his first Bill through Parliament, and for the very polite way in which he dealt with all the questions and so on. I thank, too, the shadow Front-Bench Members for their willingness to meet some of us who had concerns about aspects of the Bill.

I have to say that the Library did not even have a copy of New Decade, New Approach. It is a very detailed agreement, and of course the Bill deals only with a small part of it; it does not deal with the most crucial part facing Northern Ireland at the moment, where officially the Government were meant to legislate on Northern Ireland’s businesses to guarantee unfettered access. That is part of New Decade, New Approach, so let us not kid ourselves that it has been put through; these are the bits which seem to be able to get through very quickly. Yet even on 14 January, the noble Lord, Lord Caine, sent a letter saying that he was putting forward an amendment to allow the same situation so there would not be a cliff edge when a Member of the Assembly was elected to this Parliament, and they could stay to the end of their term. That suddenly got dropped.

This may all look like it is sweetness and light, but I have to warn noble Lords that Northern Ireland is in a very difficult situation. This is a sticking plaster of a Bill for the situation in Northern Ireland; we have a system of government that is totally different from any other part of the United Kingdom and would not be tolerated in any other part of the United Kingdom. That needs to be said.

This week we may well see real difficulty because now, legally, it has more or less been proved, and will be proved later in the week, that the Northern Ireland Executive should have taken a decision and formally agreed to have checks at the Irish Sea border that has been set up. This has not happened, therefore later on this week we will probably see the Northern Ireland Executive having to take a decision one way or another on that, which will be extremely interesting.

We have also had another meeting between the Foreign Secretary and Šefčovič, with a similar outcome. They just repeat the same statement every time: “Further talks today”, “Constructive atmosphere”, “Teams continue intensive discussions.” This cannot go on. This House needs to face up to reality: Northern Ireland is in a very difficult position and it needs to be helped by being part of the United Kingdom and by your Lordships. Having said that, I accept that the Bill is going through, and I welcome those parts of it that I agree with.

[Lord McCrea of Magherafelt and Cookstown (DUP)]

My Lords, on behalf of my colleagues, I express appreciation to the Minister for the courtesy and the engagement that we have had during the progress of the Bill. I agree with the noble Baroness on how the Bill is a small sticking plaster over a major wound that is still in Northern Ireland politics. That gaping wound is the Northern Ireland protocol, which is causing untold damage, both constitutionally and economically, to the Province. That is not acceptable; however, I accept that the Bill is passing in this House today.

15:47

Bill passed and returned to the Commons with amendments.

Health and Care Bill

Lords Hansard - Part 1 & Committee stage
Monday 24th January 2022 Lords Chamber

Committee (5th Day)

15:47

Relevant documents: 15th and 16th Reports from the Delegated Powers Committee and 9th Report from the Constitution Committee

Motion

Moved by

[Lord Kamall]

That the House do now resolve itself into Committee.

[Baroness Thornton (Lab)]

My Lords, before we formally move into Committee on the Health and Care Bill, I will raise a matter of general importance about the parliamentary process upon which we are embarked and seek guidance from the Government about a serious matter which is of immediate concern in the parliamentary process we are currently undertaking. I have no wish to delay proceedings so I will get to the point.

In August, the Government and NHS England issued a Readiness to Operate Statement guidance and checklist to all the relevant parts of the NHS concerning planning for the forthcoming legislation. On 19 January this was updated concerning the ICB establishment timeline, regarding the implementation date for the legislation moving from April to July. The words “subject to parliamentary process” may have been included in the guidance but the actions which flow from the NHS England guidance are contrary to those words. For example, it seems that the latest advice from the Government and NHS England confirms deadlines for appointments of leaders, chairs and boards, many of whom have been appointed, possibly involving the spending of public funds, long before the Bill has completed its passage through Parliament. Indeed, there are many other matters which are still subject to parliamentary process. This is pre-emption of parliamentary process.

The issues in the guidance are at the forefront of the Committee’s deliberations and it is possible that much may have changed before the Bill receives Royal Assent. Our scrutiny in your Lordships’ House is important, not least because both the Constitution Committee and the DPRRC have been highly critical of the Bill and the department. They have stressed the importance of the Bill receiving sufficient scrutiny, since it did not have pre-legislative scrutiny and is significant “disguised legislation”, including more than 60 delegated powers and directions which have no parliamentary process at all.

Noble Lords will be familiar with the rules governing preparation for the enactment of legislation. After Second Reading of a Bill, some work may be undertaken, but guidance from Her Majesty’s Treasury in May 2021 is very clear what actions can and cannot be taken. Box A2, point 4C, refers to:

“Expenditure which may not normally be incurred before royal assent.”


First, there is,

“significant work associated with preparing for or implementing the new task enabled by a Bill, eg renting offices, hiring expert consultants or designing or purchasing significant IT equipment”.

Secondly, there is,

“recruitment of chief executives and board members of a new public sector organisation”.

Thirdly, there is,

“recruitment of staff for a new public sector organisation”.

We understand that NHS England was advised by others not to issue this guidance. Will the Government confirm that: first, the legitimate role of this House in the scrutiny of legislation should be made clear to NHS England; secondly, the current guidance will be withdrawn and it will be made clear to NHS England that further action must await the completion of the Bill and Royal Assent; thirdly, it will be made clear that aspects of the changes within scope of the Bill can and may well be amended; fourthly, that adequate time will be allowed for proper scrutiny of the Bill? I shall be referring the guidance to the two said committees. If the Minister is unable to provide a response today, please can he confirm that he will respond in writing by the end of the week; otherwise, we will need to raise this again in your Lordships’ House?

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

I start by thanking the noble Baroness for giving me advance notice of her intervention today. It clearly reflects the mood and concerns of the House that we heard last week. We recognise the strength of the House’s feeling on this matter. I have spoken to my department, and it told me that it is meeting NHS England this week to discuss this matter, and I will update the House accordingly. On the request that the noble Baroness made, I commit to write to her.

Motion agreed.

Clause 20: General functions

Amendment 72

Moved by

[Lord Warner]

72: Clause 20, page 17, line 4, at end insert—
“(2) Where patients are unable to secure treatment in an NHS facility after waiting 3 months, they may choose to seek treatment, including diagnostic treatment, from a registered private service provider at NHS prices.(3) Providers of services under subsection (2) must provide NHS England with the information NHS England considers necessary to enable it to conduct and publish a national annual survey on the extent to which patients have been offered a choice of provider.”

[Lord Warner (CB)]

My Lords, the first part of this amendment links the issue of patient choice to tackling the serious problem of huge NHS waiting lists. We cannot have a meaningful policy of patient choice in the area of elective treatment without sufficient NHS capacity. Many parts of the NHS lack that capacity and will do so for a long time to come unless they draw on independent sector capacity or spare capacity in other parts of the NHS. In short, the NHS must accept a degree of competition in the area of elective diagnosis and treatment if it is to reduce huge backlogs. That extra capacity and choice was being put in place at NHS prices 15 years ago, when at least half the country had that choice. Since then, the situation has deteriorated, but that is the direction of travel that we need to return to now if we are serious about removing patients from the huge NHS waiting lists.

The evidence for the seriousness of the situation that the NHS faces was set out in a National Audit Office report published in early December 2021. It revealed that 6 million people in England are on waiting lists for elective care, with 300,000 of them waiting over a year. The NAO also estimated that, between March 2020 and September 2021, there were between 7.6 million and 9.1 million fewer referrals for elective care. It is unclear whether or when these “missing people” will seek NHS treatment. However, if half of the missing referrals for elective care do return, and assuming that NHS activity improves by 10% more than its pre-pandemic levels, which is what the Government are expecting for the extra £8 billion that they are investing by 2025, the NAO considers that there will still be 7 million people left on the waiting lists in 2025.

So, can the Minister tell me whether the Government accept the NAO’s analysis and calculations? How much elective capacity—NHS or independent sector—will the Government fund in the next two financial years to reduce elective care waiting lists? Are there any plans to encourage patients to choose other NHS hospitals or private hospitals instead of waiting for their local hospitals to get around to treating them? If he cannot answer these three questions today, I should be grateful if he would write to me with answers, as a matter of some urgency.

Before I turn to the second part of my amendment, can the Minister clarify the significance of the front-page story in the Times of Tuesday 18 January, which might have a bearing on my amendment and the Bill more generally? This headline read, “Javid plans NHS revolution modelled on academy schools”. As a former Blair Health Minister, I commend the Secretary of State for moving in this direction, but how can such a move be compatible with the current Bill? If the Times article is accurate, it would seem to have implications for the new provider selection regime provided for in the Bill. However, I am reliably informed that the draft regulations governing the new regime have yet to be published.

So are these regulations being held up because the Secretary of State is changing his policy? Certainly, I know—the matter has been impressed on me—that independent sector providers are unclear about the arrangements for providers to appeal against ICS decisions that are at odds with the regulations. I am assuming of course that ICS will not be allowed to mark its own homework, but can the Minister clarify when there will be a public sighting of the draft regulations? Again, if he cannot say today, I should be grateful if he would write to me.

Finally, I turn to the right of patients to choose where they receive care. I will not go over the period 15 years ago when a lot of progress was made on the reality of patient choice, but I will mention some King’s Fund research in 2011 which drew attention to a significant barrier to exercising that right. That barrier was NHS staff. If patients are not informed of their choices and are discouraged from exercising them, they will go on forlornly waiting for their local hospital to get around to treating them. Rights can be enforced only if there is information available. This is the purpose of the second part of Amendment 72. My information is that not since 2015 has NHS England published an official annual survey of whether patients have been offered a choice of provider when receiving treatment. That is why we need a statutory provision that provides for the regular measurement and public reporting of patients’ experience in whether they have been offered choices about their care.

16:00

I have made it clear that I am deeply sceptical about whether some parts of the NHS are really committed to patient choice—because of fears that it would lead to people travelling for elective care that is more readily available elsewhere than in their local hospital, which, in turn, might lose income. If I was unkind—I am not—I would say that, for many NHS staff, local monopoly trumps patient choice. That is why I have put down this amendment. With the huge backlog of elective care, I want to give patients a clear statutory right to shop around for treatment, if the local hospital has failed to provide it within a reasonable period of time. If the Minister doubts my arguments, he might like to look at some LSE research by Zack Cooper, published in 2011, which showed the benefits of NHS patient choice and competition.

We need Amendment 72 in order to provide greater certainty for patients to be able to choose elective care providers, to reduce the enormous backlog of treatment and to send a message to NHS staff about the rights of patients. I hope that the Minister will accept these arguments and will be able to answer my questions. I beg to move.

[Lord Rennard (LD)]

My Lords, I support Amendments 109 and 226 in this group, both of which are in my name and that of the noble Lord, Lord Hunt of Kings Heath. I will address them from the perspective of people with diabetes and with the support of the Juvenile Diabetes Research Foundation and Diabetes UK.

It is just over 100 years since insulin was discovered. Before 1921, a type 1 diabetic would live for no more than a year or two from when the condition became discernible. In the 1920s, my father, a World War I veteran, developed diabetes, and he was very fortunate that this was the decade in which insulin was discovered. It was so successful that it enabled him to have a long and happy life—indeed, I was born when he was 71, and my younger brother was born when he was 73.

Much progress has been made in the treatment of diabetes over the last 100 years, but we are not making the most of technological developments relating to insulin use and diabetes management. I have struggled with these issues myself, and I have learned much about them since I became dependent on insulin in 1994. I personally have enormous reason to be grateful to the diabetic team at St Thomas’ Hospital, just over the river from us, but not everyone with diabetes gets that standard of care, and progress with the adoption of the most recent technology is simply too slow.

There have been great developments in wearable medical technology, such as insulin pumps, flash glucose monitoring and continuous glucose monitoring. We are making progress with such innovations and in NICE’s obtaining approval for them, but they are often not widely accessible. Access to technology, including linking a person’s insulin pump and a continuous glucose monitor, may help a person to self-manage their condition in the absence of routine NHS support. The long-term cost savings are demonstrated by the wider use of such technology in insurance-based systems, where the outlay must be justified by reducing the costs of later complications, which can be very considerable.

Diabetes probably now takes up 10% of the NHS budget, and 80% of the cost of diabetes relates to complications, with the largest costs arising from excess in-patient days, cardiovascular disease and damaged kidneys and nerves. The latest technology may enable parents of young people with type 1 diabetes to obtain a full night’s sleeping soundly, knowing that their child’s glucose monitor will issue an alarm and wake them up if they experience a severe high or low-glucose episode. New technology has been shown to support blood glucose stability and to lower average blood sugar levels, reducing potential health complications and hypos or hypers, which can lead to coma or even death if not treated. There are great benefits to physical and mental health from better long-term control of blood sugar levels.

Research by JDRF shows that barriers to the uptake of this technology include the fact that many clinicians are not trained in it and that the pressure on appointments means that there is often not time to discuss treatment options. Amendment 109 would require NHS England’s oversight framework for integrated care systems to include a metric on the percentage of diabetes patients in their area accessing diabetes technology. An embedded requirement that would better support the prescription of technology would incentivise better training for clinicians and encourage more time to be provided in appointments to discuss technological treatment options and any potential fears or concerns of the patient.

Amendment 226 concerns the promotion of self-management using the latest technologies. We need it in order to reduce the number of people with diabetes suffering from complications, which may include sight loss and problems with their feet, presently resulting in around 6,000 amputations per year. When in hospital, people with type 1 diabetes require five times more secondary care support than people without diabetes, so it is essential that the NHS invests in technology that can significantly reduce the instances of hospitalisation and adverse health outcomes for people with type 1 diabetes.

[Lord Lansley (Con)]

My Lords, I thought those were very interesting and helpful remarks from the noble Lord, Lord Rennard. They serve to remind us of the importance of self-management in securing the best possible outcomes for patients. I just add the thought that, when the Government promulgate regulations relating to patient choice, one of the things we want to include is shared decision-making between clinicians and patients. In my observed experience, that too can deliver better outcomes. I think we have made significant progress in recent years in encouraging shared decision-making, and I hope we will see that come forward.

In moving Amendment 72, the noble Lord, Lord Warner, touched on a range of issues. I will not go down one or two paths, but I highlight that we will need to think hard about the interconnections between the question of patient choice and how far patients continue to be given choice. We need to ensure that it is not just talked about in the constitution or in regulations that say it is generally a good thing. For choice to happen in practice, subsequent clauses in the Bill relating to procurement, such as Clause 70, need to enable a choice of providers. The noble Lord made that perfectly clear.

The clause relating to payment systems—Clause 68, if my memory serves me correctly—still needs to have a “money follows the patient” approach. It is not me saying that these are all good things; they were put in place by the Blair Government, not the coalition Government, who did not do away with them but entrenched them.

I am worried. I will just make this point about Clause 70, the effect of which is to repeal Section 75 of the 2012 legislation. Included within that was that one of the requirements of the procurement regulations would be to support the right to patient choice, and the Government are proposing to repeal that.

The Minister may well, perfectly correctly, say, “That may be so, but we have the power in this Bill to set regulations relating to patient choice”, but this is separate, and, in the event, we may find that the link is broken between procurement and payment and patient choice. The net effect would be that patient choice is vitiated. I am worried, for exactly the reasons that I think the noble Lord, Lord Warner, is worried, that what has been around for some 18 years in one form or another—the expectations on the part of patients that they can exercise choice—may not be able to be exercised in practice because the preference of the NHS in many of these localities is to operate as a monopoly and not to give any opportunities for that choice actually to function.

Our debate on this group would be far better and easier to have—and might not even be needed—if the Government published the regulations under Clause 68 in draft so that we can see what they are proposing to do. They have not done it; between now and Report they could do it. When we get to Report, we are going to have a very difficult—certainly from my own personal point of view—set of conversations about how patient choice is to be exercised, how the NHS is to get best value from its procurement, and how trusts and providers are to be paid appropriately, rather than simply go back to block budgets. How do we get out of that debate? The answer is: let us see what the regulations the Government are proposing—in this case relating to patient choice—actually look like, and let us see it before Report.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I put my name to Amendments 109 and 226, in the name of the noble Lord, Lord Rennard. I also have my own Amendment 204, which I will not move or speak to, because we dealt with Healthwatch in a debate which seems a long time ago but was only two Committee sittings ago.

I refer to the remarks of the noble Lords, Lord Warner and Lord Lansley. It seems to me that behind this is the hard issue we face that the huge increase in the number of people waiting will, I am afraid, take us back to the very bad old days of the perverse incentives existing within the NHS for patients to be encouraged to go for private care because of the length of the waiting list and waiting times. The noble Lord, Lord Warner, will recall that under the Blair Government, as part of our attack on waiting times, we had to tackle this issue of certain consultants—I suppose I should declare my interest as a member of the GMC board, though I am certainly not speaking on its behalf—and certain perverse incentives for patients to be encouraged to go to the private sector. Of course, much maligned though they were, that was why independent sector treatment centres were set up, and they were part of the process of driving waiting times down. We now have a huge problem of huge waiting times and a huge number of waiting lists, and we have to be very careful to ensure that these kinds of perverse incentives do not come back into the health service.

[Lord Warner (CB)]

Does the noble Lord recall that, when independent sector treatment centres were established, they operated on the basis of NHS prices, so people were getting NHS treatment in these independent sector treatment centres at the same price that the NHS would have had to pay for that treatment?

[Lord Hunt of Kings Heath (Lab)]

My Lords, that was a very important intervention, and I am grateful to the noble Lord for jogging my memory. I think that he would agree, though, that apart from the price, the point was that it was an important element in getting waiting times and waiting lists down. At the moment, we are clueless about how the Government are going to do this. As the noble Lord, Lord Lansley, said, we will have a debate—I hope tonight—in relation to procurement, but I say to the Government that the open-ended nature of the regulation-making power that they propose to give to Ministers in such an important area is utterly unacceptable and has been drawn to the House’s attention by both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, as the noble Lord knows.

16:15

This is a very curious group. I shall just mention the two amendments to which I have put my name—though I think the noble Lord, Lord Rennard, has said it all—and refer to the importance of self-management. The evidence in favour of self-management is overwhelming. I refer the House to the data analytics team at the Health Foundation, who have begun to fill some of the evidence gap in relation to this. They have shown that the patients most able to manage their health conditions have 38% fewer emergency admissions and 32% fewer A&E attendances than those least able to manage their conditions; they also have 18% fewer GP appointments. This is the first study in the NHS to have demonstrated an association between a patient’s ability to self-manage and the use of services across primary and secondary care. That is an important start to an evidence base. The Minister has not been sympathetic to many amendments; it has been warm words but little action so far. I hope that, on our fifth day in Committee, on these two amendments put forward by the noble Lord, Lord Rennard, the Minister might just say that he will accept them.

[Baroness Finlay of Llandaff (CB)]

My Lords, this has been a very interesting short debate. I have two issues to raise. I am grateful to the noble Lord, Lord Hunt, for having raised perverse incentives and, indeed, the danger with perverse incentives that senior consultants with a great deal of experience could be absent from NHS premises when undertaking work such as surgery in other premises; they would therefore not be available to their NHS patients in the event of a problem and some surgery being left to more junior members of staff.

The other issue is the difficulty of ensuring true consent and information for patients when they are offered choice, with respect to their awareness of the staffing levels in the premises to which they will be going. In some of the private providers, there is not very comprehensive out-of-hours medical cover—particularly at night—with somebody on site. There is also a problem that, if a patient should develop a complication, foreseen or even unforeseen, and is in need of an intervention, they may then need to be transferred to a local NHS intensive care unit. In that event, it would be important for the money to follow the patient. If that intensive care unit is out of the area from which the patient has come, I hope that the regulations will allow for appropriate funding of that NHS facility.

[Lord Warner (CB)]

Is the noble Baroness aware that, during the arrangements in which there were contracts with the independent sector to provide elective surgery in independent treatment centres, the quality of that care was both reviewed by the then Chief Medical Officer, Liam Donaldson, and looked at, with evidence taken, by the Health Select Committee? They found that claims about shortcomings in these private facilities were exaggerated—their provision of services was equally as good as that of the NHS facilities.

[Lord Lea of Crondall (Non-Afl)]

My Lords, I shall briefly support what has just been said by the noble Lord, Lord Hunt, and the noble Baroness, Lady Finlay, with a personal anecdote. When I recently needed an MRI scan on my neck, the doctor said, “Well, of course, you can have it done quite quickly if you go private.” She then added, “In case you are worried about doing that, it takes the pressure off of the health service.” The point made by the noble Lord and noble Baroness is exactly that it does not take the pressure off the health service; for the previous few weeks, these doctors have been working for the National Health Service. I hope that the Government will take this on board and will not start using the argument that going private takes the pressure off the health service.

[Baroness Barker (LD)]

Following on from that, one point that we should take into account is the extent to which the private sector and the NHS rely on the same workforce. That is particularly the case in relation to consultants and less so for nurses.

While we can argue about the location, price or quality, perhaps, of treatment and aftercare, the key issue is diagnostics, which is a huge issue at the moment in the NHS. I have a slightly different take on that. For all of my life, my mum was deaf, and I have to say that the quality of NHS hearing aids was about 10 years behind the private sector’s—but people trusted them; they trusted the quality of the diagnostics and the advice that they were given. We have moved a long way in terms of diagnostics for eyecare and hearing aids, but it does not matter where that happens; what the general public want to do is to be able to trust the quality and independence of the diagnostics that they get. If we can do that, I rather suspect that the general public, in the wake of the pandemic, when they see the NHS struggling in all sorts of ways to make up for two years in which their staff have been pulled around, sometimes away from their specialties, would be quite forgiving—as long as there are some very basic agreements about how it will work and the integrity of the work and systems.

[Baroness Finlay of Llandaff (CB)]

I am most grateful to the noble Baroness, Lady Barker, for adding some clarification to the point that I was trying to make. I am not for or against any system; all I am saying is that the arrangements have to be in place so that nobody is jeopardised—and indeed, in the event of a patient being transferred from a private facility back into the NHS, that part of the NHS is appropriately recompensed, particularly if the patient comes from a long way away.

[Baroness Walmsley (LD)]

My Lords, the problem to which the noble Lord, Lord Warner, is suggesting a possible solution is the result of long-term underplanning and underfunding of staffing in the NHS, and underfunding also of the capital budgets of hospitals, which sometimes have to choose between mending the roof and buying a piece of equipment that would get patients through the system more effectively and efficiently.

On the comments from my noble friend Lord Rennard on self-management, it is of course not just better care that that produces—it is also very cost effective. I draw noble Lords’ attention to page 3 of the Bill, line 13, where one of the three things to which NHS England has to pay regard about the wider effects of its decisions is

“efficiency and sustainability in relation to the use of resources”.

The resources are much better and more efficiently used if the patient has a decent choice of the equipment and treatment that is most effective for them, and it is often a great deal cheaper.

I also agree with the noble Lord, Lord Lansley, that we need the guidance. We need to see it before Report, and I hope that the Minister will be able to provide that.

[Baroness Wheeler (Lab)]

My Lords, these amendments stress the importance of patient choice in health management, especially of their long-term health conditions, and I welcome and endorse what noble Lords have said on these key issues. The vital importance of patient choice and their right to be able to make informed decisions about their conditions and treatment, and to receive treatment within the 18-week standard waiting time set out in the NHS mandate, was pioneered by Labour and continues to be fully supported by these Benches, as I stressed last week in the group of amendments on the mandate and the NHS constitution.

The noble Lords, Lord Rennard and Lord Lansley, and my noble friend Lord Hunt have spoken about the importance of active self-management, where clinically suitable, for patients with conditions such as diabetes. Access to the latest technologies varies greatly across the country, and the call in Amendment 109 to ensure that the oversight framework for ICSs includes systems for measuring the numbers of diabetes patients accessing diabetes technology would help achieve greater consistency and better use by patients who could benefit from it, particularly in helping to keep them out of hospital or to prevent their conditions deteriorating.

As vice-chair of the Specialised Healthcare Alliance, I know that patients with rare diseases often do not feel sufficiently supported in terms of psychological support, health systems and information, physical and daily living, patient care and support, and sexuality needs. As they are often having to live with their conditions long term, they have considerable potential to be more expert in their conditions than many of the healthcare professionals they come into contact with, many of whom may not be familiar with their disease or condition. With appropriate support, therefore, such patients can manage their less intensive care needs themselves, delivering better health outcomes and reducing demands on the NHS. Efforts to promote the self-care of people with health conditions, as set out in Amendment 226, really have the potential to improve the care of people with rare diseases.

Amendment 72—moved with his usual expertise and clarity by the noble Lord, Lord Warner—reinforces the importance of patient choice and is highly relevant because of the growing and record waiting list that we spoke about last week during the debate on the mandate and constitution. Of course, Labour in the past has used the private sector as part of a comprehensive plan to reduce waiting times, as the noble Lord, Lord Warner, pointed out. He will also know that in reality the role played by private providers, and the costs involved in getting the waiting lists down to the 2010 levels before this Government took office, particularly for elective surgery such as hip and knee replacements, were modest compared with the huge investment in the NHS itself and Labour’s genuine commitment to public service solutions, increased investment, the use of targets and improvements in pathways and other efficiencies. As a result, the private sector relied more heavily on getting business from the NHS on NHS terms, not actually treating private fee-paying patients.

In sharp contrast, we have the complete absence of such a comprehensive or coherent plan from the Government to reduce the now-record waiting lists, as the noble Lord, Lord Warner, set out in moving his amendment. The Secretary of State has acknowledged that waiting lists could grow to 13 million, with the National Audit Office now predicting that the situation could get even worse than it currently is by March 2025. The Secretary of State promised in November to publish how the Government plan to meet the workforce requirements needed to address staff shortages—to which noble Lords have also referred to during the debate—and the record waiting lists, but we still have not had any sight of this.

So far, all we have had instead are last week’s press reports of the huge sums of money the Government want to hand over to the private sector, including disturbing reports of NHS England’s unease at the Secretary of State’s instructions to hand over £270 million to the private sector with no guarantees on numbers of patients to be treated or, indeed, whether any NHS patients will even get treatment. Our shadow Secretary of State, Wes Streeting, has made it clear that an incoming Labour Government would fully expect again to use the private sector to help bring down waiting times for treatment, but as part of a comprehensive plan to build and the support the NHS so that people do not have to go private because waiting lists are at record levels and they are suffering and in pain. People who cannot afford it always have to wait and remain in pain. That is not social justice and it is just not right.

We support the principle in this amendment. If long waits can be prevented, they should be, although there is a serious question about whether the private sector would in any event actually have the capacity to meet the demand that could be generated by the three-month stipulation for treatment in the amendment. We also agree that the Clause 68 regulations need to be published as soon as possible and I look forward to the Minister telling us more about that. By contrast, a far better solution, as Labour has always advocated, would be to invest in the NHS, help the NHS become more effective and efficient and build capacity so there would be far less need for private sector care.

Finally, the amendment’s requirement to ensure that private sector providers have a duty to provide NHS England with annual information on the services funded by the NHS and on patient choice would be a welcome development, for the reasons that the noble Lord, Lord Warner, set out. The more that is known about the use of private providers, the better and more informed the discussion about their role will become. I look forward to the Minister’ response.

16:30

[Baroness Chisholm of Owlpen (Con)]

My Lords, I shall start by addressing Amendment 72 in the name of the noble Lord, Lord Warner. The Government are wholeheartedly committed to addressing the backlog of hospital treatment, much of which, as we are all aware, has resulted from the unprecedented efforts that our country and our health system have taken to combat the Covid-19 pandemic. This includes continuing to work closely with independent sector providers of acute care to provide the capacity to deliver more treatments and to reduce waiting times. I shall explain that a bit further. As of 10 January, NHS England has entered into national arrangements with 10 independent sector providers, to meet the needs of their patients and to reduce waiting times for treatment. This will also allow a wider range of patients to be treated in the independent sector, such as those needing some forms of cancer surgery and other treatments not normally delivered under existing arrangements.

The Government will continue to monitor this collaboration and work closely with the NHS and the independent sector to ensure that patients receive the best possible treatment and care. I welcomed the shadow Secretary of State’s comments on the use of private providers in recent weeks, supporting the use of the private sector where necessary to address the backlog.

We do not, however, believe that the amendment as written offers the right approach to effectively support collaboration between these parts of our health system at this time. The system already has arrangements between the NHS and the independent sector to address specific needs and to target areas where the greatest benefit can be gained. In addition, in most cases, patients already have the legal right to ask for their appointment to be moved to a private sector provider if they are likely to wait longer than the maximum waiting time specified for their treatment. This includes where patients have to wait more than 18 weeks before starting treatment for a physical or mental health condition, or more than two weeks before seeing a specialist for suspected cancer, with some specified exceptions. This does not limit patients to a private provider, as the amendment would, but allows them to choose from a range of providers. Currently, patients waiting for treatment are prioritised by the NHS so that those in the greatest need are treated first, when their clinical urgency and the length of time they have been waiting for treatment has been reviewed.

At present the NHS captures information on patient choice, which includes the use of e-RS at referral, where NHS England can see the number and nature of choices offered to patients. There is also a national e-RS pop-up survey for patients, which provides data on patient choice; information on choice offered to waiting list patients is also recorded.

The noble Lord, Lord Warner, wanted to know about the timing of the publication of the regulations on patient choice. That will be the same as for the provider selection regime regulations: as close to July as possible, subject to parliamentary passage.

The noble Lord also asked about work on the elective recovery plan. The Government have announced that we will spend £2 billion this year through the elective recovery fund to tackle the elective backlog, as part of the biggest catch-up programme in the NHS’s history. This will continue with £8 billion in the following three years, from 2022-23 to 2024-25, and a further £5.9 billion was announced in the October 2021 spending review to support elective recovery diagnostics and technology.

The independent sector is bolstering NHS capacity in a wider range of areas—MRI scans, providing cancer diagnosis and treatment, treating women with gynaecological health issues, and much more. Thousands of patients are receiving tests and treatments for a wide range of conditions, thanks to the arrangements in place in the NHS and the continued strong partnership with the independent sector.

The noble Lord, Lord Warner, also wanted to know about the story in the Times on academisation of hospitals. Significant NHS reform is already under way through this Bill, our plans for integration, the health and care levy, and our upcoming electives plan. No further plans have been agreed. High-quality hospitals will always have a central role in our health and care system, and the Bill will ensure that they do so in a way that supports integrated and patient-centred care.

I think that the noble Lord, Lord Hunt, said that he did not want to move Amendment 204, so I will not speak to that.

I thank the noble Lord, Lord Rennard, for bringing Amendment 226 before the Committee today. Supportive self-management is part of the NHS long-term plan commitment to make personalised care the norm. However, we do not believe that having an additional duty on NHS England, as proposed by this amendment, would further support this work. Indeed, having a stand-alone duty of this kind could make the work more disjointed, rather than complementing the existing holistic approaches to personalised care, which aim to empower individuals to live well with their conditions. The department is working with NHS Digital and NHS England and NHS Improvement to encourage innovative new approaches and organisations to support services and to collaborate in an effective way with the NHS.

Amendment 109 deals with the access to innovation technology among diabetes patients, and I thank the noble Lord, Lord Rennard, for bringing it before the Committee today. He is a much-valued contributor to all debates on this subject, and we learn something new ourselves every time he speaks on it. We have existing tools at our disposal to monitor the use of innovations. This includes NHS Digital’s innovation scorecard and the AAC scorecard. We are committed to further strengthening these innovation metrics and to improve our understanding regarding the use of innovations in the NHS.

This amendment seeks to add a new subsection to new Section 14Z49, which would create a requirement for guidance published by NHS England for ICBs to include performance metrics on the uptake of innovative technologies among diabetes patients. I understand that the amendment would seek to set specific requirements for the system oversight framework for ICBs in respect of diabetic patients. However, this could risk creating a confused system of reporting requirements, which I am sure we are all keen to avoid.

The amendment would also cut directly across the existing mechanism for setting priorities, by which the priorities set by the Government for NHS England, and in turn by NHS England for the system, are translated into reporting requirements—this flows from ICBs to NHS England and to Parliament. However, I hope I can give the noble Lord some reassurance that the Government take the issue of diabetes very seriously. I assure him that we will continue to hold NHS England to account for the performance of the system against those metrics, as I am sure your Lordships’ House will hold Ministers to account.

I hope this has been a helpful debate, and I will make sure that we get letters to explain any questions I have not fully answered from the noble Lord, Lord Warner. With that, I hope that he will feel able to withdraw the amendment.

[Lord Warner (CB)]

My Lords, this has been a helpful short debate, and I am particularly grateful to noble Lords, especially the noble Lords, Lord Lansley and Lord Hunt, and the noble Baroness, Lady Wheeler, for their contributions and for opening this subject up a little.

The purpose of my wording of this amendment—I did not think it was a perfect piece of parliamentary drafting—was mainly to flush out what the Government are going to do on patient choice and provider regimes. We have an answer on the latter. We will not know what is in the provider selection regime regulations until after Parliament has passed this legislation. That does not seem to me to be a particularly satisfactory position to be in, for the reasons that the noble Lord, Lord Lansley, said. So, I strongly encourage the Government to get on to the Department of Health and Social Care officials and speed the process up. Even if they are only draft regulations, they should be made available to your Lordships so that we can see what the Government’s practical intentions are.

I will not go into a defence of the private sector—I do not particularly want to do so—but, in the past, when it has been bought in on NHS contracts, it has brought more professionals to the party. Part of the original contracts for ISTCs made it clear that the private sector could not swipe NHS consultants; it had to find its own staff, who were not working in the NHS, to deliver on those contracts. So, they added to the capacity. I remind Members of this House that the thing about diagnostics, which the noble Baroness, Lady Barker, rightly raised, is that you can use the spare capacity in the private sector at marginal cost, so that you are not paying the full cost you would normally have to pay. So, there are some advantages there, if a Government know what they are doing in their contracting.

Finally, I was not satisfied with the noble Baroness’s answers both in relation to the NAO report and more generally. It is very easy to give me and the House figures for expenditure. I was asking how many patients will actually benefit, because the currency for waiting lists is patient numbers. We want to know how many people will be taken off those waiting lists as a result of the Government’s expenditure—that is the issue I was looking for some enlightenment on.

The background to this is: will I go further on Report? The answer is: I look forward to hearing what the Government say between now and then, but, at the moment, my inclination is to come back and test the opinion of the House. I beg leave to withdraw my amendment.

Amendment 72 withdrawn.

Amendments 73 to 77 not moved.

Amendment 78

Moved by

[Baroness McIntosh of Pickering]

78: Clause 20, page 17, line 14, at end insert—
“14Z39A Duty to review latest innovations with a view to local commissioning (1) Integrated care boards must review all new—(a) medicines,(b) medical devices, and(c) other health care solutions that may benefit the local population.(2) Integrated care boards must—(a) appoint a dedicated innovation officer to their board, and(b) develop and maintain a system to keep up to date with medicines and devices innovation and review suitability for patient usage, including engagement with the relevant—(i) academic health science network, and(ii) local pharmaceutical committee.”Member’s explanatory statement
This amendment would mandate ICBs to monitor and assess innovation for the benefit of the local population.

[Baroness McIntosh of Pickering (Con)]

I have four amendments in this group; I will speak to each in turn and look forward to hearing what the noble Lord, Lord Sharkey, says on his two amendments.

I thank the noble Lords, Lord Hunt of Kings Heath, Lord Patel and Lord Kakkar, for supporting Amendment 78. It looks at innovation, recognising that it is an ongoing iterative process that every ICB should be aware of to ensure that patients have access to the most efficient and effective healthcare solutions of the day. To that end, is purpose is to oblige integrated care boards to formalise the obligations of the board to horizon-scan for the latest innovations, as approved by regulatory bodies, to cover their population.

This new clause would require the appointment of an “innovation officer”, or potentially identifying an officer to take up that role, and place an obligation on the board to constantly review innovative medicines and devices, as they become available. This is a separate and additional duty to that to promote research.

16:45

This amendment is very much supported by the Association of British HealthTech Industries, which has its own chief innovation officer campaign that has been supported by several noble Lords. Essentially, its thinking is that it is at the moment nobody’s job to horizon-scan for new innovations that may bring huge benefit to patients and, therefore, they are often not being prescribed. As we know, the NHS is under pressure and, if no one is responsible for this, it most likely will not happen. I specifically refer to the Academic Health Science Networks—there are 15 across England—as they are spread over the country and provide a good link between research and hospitals.

I turn now to Amendments 81, 96 and 135. Research is critical to the continued treatment of medical conditions in the UK, with our world-leading life sciences sector playing a critical role. However, the system is currently fragmented, and research has struggled to access patients for use in clinical trials. This means that joined-up research to address national health challenges or emergencies is extremely difficult. It is also difficult for research to access patient groups across ICS footprints in order to develop rare and ultra-rare treatments. Personally, I am not entirely clear what the status of clinical trials within the European Union is at this stage; we debated that in earlier legislation and it would be helpful to have an update from the Minister, if possible.

To address these gaps, each ICB should be required, through these amendments, to put in place a research strategy to enable them to proactively engage in or support research into local healthcare issues or challenges and to enable participation in national research projects. Secondly, to ensure operational delivery of this strategy, each ICB should be obliged to consider any request for a local or national clinical trial that benefits the local patient community or supports the national NIHR research programmes. They should then undertake appropriate patient recruitment and obtain the necessary consent. Further, each ICB should be required to publish annually the research it has undertaken in that year, which should be included in an annual report. NHS England should be obliged to collate this information and present it to Parliament.

Amendment 81 in my name would require ICBs to establish a research strategy across healthcare and other connected measures. Amendment 96—for which I am delighted to have the support of the noble Lords, Lord Patel and Lord Kakkar, and I thank them for that support—would require integrated care boards to consider annual requests to engage in clinical trials and offer patients the opportunity to participate. Finally, Amendment 135 would require integrated care boards to publish an account of their research activity and would require the report that the Secretary of State must prepare and lay before Parliament, under Section 247D of the National Health Service Act 2006, to include a section that reproduces and comments on the research activity of all ICBs.

With these few remarks, I beg to move.

[Lord Sharkey (LD)]

My Lords, it is a pleasure to follow and to agree with the noble Baroness, Lady McIntosh. I will cover some of the same ground in my remarks.

I start by declaring my interests as chair of the Association of Medical Research Charities and of the Specialised Healthcare Alliance. The alliance campaigns on behalf of those 3.5 million of us who have rare or complex conditions. The members of the AMRC spend around £1.7 billion a year on medical research, mostly through universities in the United Kingdom. That is more than is spent by the Government via either the Medical Research Council or the National Institute for Health Research.

I will speak to Amendments 79 and 196 in my name and the names of the noble Lords, Lord Kakkar and Lord Patel, and the noble Baroness, Lady Blackwood. It is a privilege to have the support of such extremely distinguished and expert Members, and I am very grateful to them. The amendments also have the support of much of the medical research sector. Both amendments concern research within the NHS. This subject is a long-standing preoccupation of the medical research community, the NHS and the Government.

As long ago as 2011, the Academy of Medical Sciences published an influential paper setting out some key findings, prominent among which was the difficulty in attaining NHS permissions for research. In fact, this was identified as the single greatest barrier to health research. In 2017, the NHS and NIHR published a joint paper called 12 Actions to Support and Apply Research in the NHS. The NHS Long Term Plan, published in 2019, was generally received positively but actually had little to say about research. As your Lordships would expect, the NIHR did have something to say about research in its work of March last year, “Embedding a Research Culture”, which rehearsed the benefits of a research-intensive NHS. Three of the main actions called for were:

“Improving visibility and making research matter to the NHS … Making research more diverse and more relevant to the whole UK … Strengthening public, patient and service user involvement in research.”


These are obviously very important goals, but setting them out as clearly as the NIHR does makes it clear that the NHS’s performance in this vital area really does need improvement.

Also in March last year, the Government published a ministerial paper focused entirely on the delivery of UK clinical research. The paper set out the value of clinical research and our world-leading position. It made the assertion that

“research is the single most important way in which we improve our healthcare—by identifying new means to prevent, diagnose and treat disease.”

It concluded that that meant

“embedding clinical research at the heart of patient care and the NHS, making participation as easy as possible and ensuring all health and care staff feel empowered to support research.”

I strongly agree with both these assessments, and I am very glad to see them as firm policy goals. I welcome the clear and directive language and the signals of intent, which is why I was extremely disappointed to see such a very weak obligation as regards research in the Bill.

New Section 14Z40, inserted by Clause 20 on page 17, sets out what it describes as a duty in respect of research for ICBs. It simply says:

“Each integrated care board must, in the exercise of its functions, promote— (a) research on matters relevant to the health service, and (b) the use in the health service of evidence obtained from research.”


This is essentially the same kind of duty as imposed by the 2012 Act, and it is extraordinarily weak. The word “promote” is not really meaningful. What would satisfy this condition? Mere exhortation would probably qualify. Imposing a duty to actually do research would be much clearer, much simpler and more likely to have an effect. This would also be consistent with the Government’s view of the critical importance set out in the ministerial paper. That is what our Amendment 79 seeks to do. It is a “must actually do something” obligation rather than a “promote the doing of something” obligation. It requires that ICBs must ensure that those eligible organisations for which the ICB is responsible conduct research on matters relevant to improving patient outcomes and healthcare delivery and promote the use in health and care of evidence obtained by research.

The amendment has two additional parts. The first is to impose a requirement for ICBs to co-produce research aims with local place-based partnerships and to ensure diversity of participation. This acknowledges both the benefits and the necessity of place-centred research and close partnership in the production of research aims. The second additional part of our amendment is simply a requirement that the ICB publishes via its annual reports and joint forward plans the steps it has taken or plans to take to deliver clinical research.

Our Amendment 196 is also in this group. It deals with research directly in trusts and foundation trusts. As things stand, Schedule 4(16) of the 2006 Act says only that

“An NHS trust may undertake and commission research and make available staff and provide facilities for research by other persons.”


This is clearly permissive and not directive. Our Amendment 196 would remove this paragraph and replace it with a requirement for both trusts and foundation trusts to actually carry out research, as in Amendment 79. The amendment would also preserve, from the 2006 Act, making available staff and providing facilities for research by other persons.

I strongly believe that both amendments—all parts of them—are in keeping with the ministerial paper, Saving and Improving Lives: The Future of UK Clinical Research Delivery. I hope that the Minister will recognise the cross-party and not adversarial character of our proposals. We really agree with the Government about the paramount importance of research in the NHS—we just need to make it happen. I look forward to the Minister’s reply and to further discussions between now and Report.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

The noble Lord, Lord Howarth of Newport, is participating remotely. I invite him to speak now.

[Lord Howarth of Newport (Lab) [V]]

My Lords, if, as I hope, the Bill will be amended to establish a quadruple aim for the NHS—the fourth aim being the reduction of health inequalities—then it will follow that we must have systematic research into the origins and remedies of health inequalities. In this connection, we need to understand options for using cultural, natural and community assets within the changing structures of health and social care, in particular at ICS level. Research should lead to better understanding the relationship of such assets to health inequalities, with a view to health systems mobilising those assets in prevention and intervention strategies, particularly to benefit people living with complex needs in deprived areas. The spectrum of research receiving public funding needs to run from laboratory-based clinical research to public health and community-level action research. The system needs to build capacity at that latter end of the spectrum, training and providing funding and opportunity for new cohorts of such researchers.

Let me give a few instances of the kind of down-to-earth research that needs to be funded. How are improvements to well-being, including staff well-being, to be measured, valued and integrated most effectively with policy at ICS level? More research is needed on the cost-effectiveness of community-based programmes. More research is needed on the cost and health benefits of the link worker model in social prescribing and on financial models for integrating community assets into health systems. Social prescribing needs to be underpinned by robust research on what we might call dosage. How much of such activities should be prescribed, and for how long, to bring about measurable behaviour changes and health outcomes? More evidence is required regarding the sustained, longitudinal effects of engaging in non-clinical programmes across specific health conditions such as cancer, stroke, dementias, diabetes and heart disease.

Such needs are being recognised by UKRI and, under its umbrella, the ESRC, the NERC, the MRC and the AHRC. What is also striking is the growing international interest and evidence base for this kind of research, as demonstrated by the World Health Organization scoping review by Daisy Fancourt and Saoirse Finn, entitled What is the Evidence on the Role of the Arts in Improving Health and Well-being?, and the establishment of the WHO Collaborating Centre for Arts & Health, based at University College London. The aims of this centre are to carry out world-class research into how the arts, culture and heritage affect mental and physical health; to work with world-leading researchers in the UK and internationally to develop and improve arts and health policy globally; and to provide training opportunities, toolkits and resources to support development in the field, including facilitating opportunities for early career researchers.

17:00

One admirable model is SHAPER, a £2 million research programme funded by Wellcome to assess the implementation of three creative health interventions by embedding them in clinical pathways across King’s Health Partners, bringing together academics in psychiatry and epidemiology with the King’s Centre for Implementation Science, as well as clinicians and researchers across King’s and King’s Health Partners, and three arts organisations, Breathe Arts Health Research, the English National Ballet and Rosetta Life. This programme will explore the barriers and enablers for taking effective interventions to scale and learning from it will inform the spread of creative health interventions in other parts of the country. The interventions include Melodies for Mums, a 10-week singing and music programme for mothers with postnatal depression, which has reached 300 mothers in Lambeth and Southwark.

The National Centre for Creative Health, a charity of which I am chair, is working with Professor Helen Chatterjee of UCL on a UKRI-funded, cross-council research programme, led by the AHRC, to better understand how cultural, natural and community assets can help mitigate health inequalities. The programme will support research in pilot sites across the UK, with a focus on how prevention and intervention strategies can be scaled up from small, locally based approaches to whole communities and systems. As a charity, one of NCCH’s purposes is to seek to ensure that key gaps in research relating to creative health are filled and appropriate skills developed and embedded in healthcare systems, along the lines of what may be envisaged in the Bill and what is spelled out in some of these amendments. Amendments 79 and 196, just introduced by the noble Lord, Lord Sharkey, are particularly valuable in specifying obligations for ICBs and NHS trusts to conduct local research.

I have some questions for the Minister; if he is not able to answer them this afternoon, I would ask him to write to me. To what extent does he intend that the gathering and reporting of data by ICBs should be standardised and how do the Government intend to proceed on this? Will success measurement focus on not just process but outcomes, both near-term and sustained? How will the Government harvest and use the evidence on innovation provided by the work of academic health science networks?

I wonder also whether the Minister could tell us something about the thinking of the National Institute for Health Research, going beyond the helpful remarks of the Baroness, Lady Chisholm, in her response to the last debate on Thursday. I appreciate that its budget, albeit very substantial, is under constant pressure from the insatiable demands of clinical research and that many high-quality research bids have to be turned down. I also appreciate the requirement not to compromise academic standards. However, does the NIHR appreciate the need to fund and develop research methodologies that differ from the time-honoured models such as RCTs and support other types of research, including coproduction methodologies, vital to improving our capacity for both prevention and bringing about a health-creating society?

[Lord Davies of Brixton (Lab)]

My Lords, I want to direct a few remarks to the issue of research, in broad support of the speeches made so far. The amendments in this group, taken individually, are generally to be welcomed, not least because they highlight the issues involved. However, taken as a whole, they suggest that there is a need for a more coherent approach, based on the common principles that apply across the whole range of providers and the whole spectrum of health and social care.

The point of principle is that there is a demonstrable association between the provision of high-quality care and participation in high-quality research. Put simply, patient outcomes in services that actively take part in research are better. This does not mean just future improvements in care, diagnosis and so on; the actual care provided alongside the research benefits from involvement in that research. It is reasonable to assume that the same is true of care services; I direct my remarks at healthcare, but I am sure these principles apply equally to those involved in the provision of social care.

Given the principle that research is so important, it is worth making a few additional points. First, research must be an essential element in a system of healthcare, involving both the bodies that deliver healthcare and service users. Hence ICBs need to have a research strategy and not just promote research but take practical steps to facilitate it. In this context, the importance of national research objectives should be emphasised. The involvement of these bodies in research should be more than just one more administrative hoop they have to jump through. It should be part and parcel of their core function, delivering better mental and physical healthcare. They also need to commit to training clinical staff in how they can participate to best effect in research, or at least in the importance of research to clinical care.

Secondly, there is a need to consider a duty on private providers of NHS services to participate in research. Of course, private providers have a duty to support and contribute to the training as well. It is easy for private providers to ignore the need for research, and this reduces the opportunities for those for whom they care.

Thirdly, on Amendment 96, I suggest that we need to go beyond the idea that clinical trials need to be considered by ICBs and other relevant agencies. We could go further and require ICBs to use their best endeavours to encourage and accept reasonable requests to support clinical trials and offer opportunities for patients to take part.

Fourthly, as we have touched on in previous debates in this Committee, it must be emphasised that, when addressing the issue of research, there is a need to refer explicitly to mental as well as physical health.

Finally, all of us should bear in mind the importance of service users being involved in research and of ICBs and other agencies keeping this in mind throughout the process of providing care. This includes the involvement of service users in developing the priorities of research in its design and in overseeing its carrying out. This is vital for making sure that the outcomes can be easily embedded in clinical and care services. It is worth emphasising this in the context of mental health, where most advances in patient involvement have taken place.

[Lord Kakkar (CB)]

My Lords, I thank the noble Baroness, Lady McIntosh of Pickering, and the noble Lord, Lord Sharkey, for the thoughtful way in which they introduced the amendments in this group to which I have added my name. In so doing, I remind noble Lords of three interests: I am chair of the Office for Strategic Coordination of Health Research, chair of the board of trustees of UK Biobank and chair of King’s Health Partners.

As we have heard in this debate, research is not only fundamental to securing the best outcomes for patients being treated in our hospitals and throughout our healthcare system; it is critically important for the sustainability of the healthcare system itself. Numerous reports and strategies have been published over the last 10 years, to the great credit of Her Majesty’s Government, in terms of putting innovation and research at the heart of repeated NHS strategies. It is therefore only right that your Lordships’ House pays particular attention to how securing the opportunity for that research and promoting the opportunities that will flow from it are reflected in the Bill. There is no question but that Her Majesty’s Government are deeply committed to this area, but, as the Bill is currently drafted, there is some anxiety that the provisions and clauses do not provide sufficient emphasis or obligation for the new NHS organisations, the integrated care systems and the integrated care boards—and, indeed, the continuing obligation for NHS trusts—to be actively involved in research.

Now why is this important? At the very least, we know that we need to continue to innovate, be it therapeutic innovation or innovation through devices—or, indeed, innovation of new working practices, pathways of care and delivery—if we are to continue the important advances in outcomes that we have been able to achieve in recent years and decades. As we have heard, research is at the very heart of our ability to improve the experience and clinical outcomes of our patients. Research is also fundamental in improving our ability to prevent disease. We have an obligation in this Bill to promote healthcare services and well-being and to avail ourselves of the substantial opportunities that exist with regard to a more focused prevention agenda. Much of that agenda must inevitably be driven by prospective research, to be conducted across broad and diverse populations on our fellow citizens.

There is the question of sustainability—the fundamental sustainability of the NHS. Here we recognise that, without research and the adoption of innovation resulting from that research, the demographic changes and increasing demands that attend the delivery of healthcare in our country will make the NHS unsustainable in future. Therefore, there is a very deep obligation, beyond what we can do for patients in terms of clinical outcomes, to put at the heart of NHS thinking and strategy, as well as delivery, the delivery of a substantial research agenda. We know that that that research agenda is secured centrally through the substantial commitment of public funds to the National Institute for Health Research, UKRI and Research Councils, which provide funding for research—and, indeed, for other contributions from government departments, including the third sector contribution and the substantial contribution for research provided by the pharma and biotech industries, and associated research opportunities.

All that needs to be directed towards NHS institutions that are ready to receive that substantial commitment to research and conduct in particular those clinical research opportunities which, regrettably, have been subject to variable performance over many years in the NHS. It is for that reason that this Bill must take the opportunity to address that variability in research participation and performance. If we do not achieve that, we are not going to utilise the full potential of the NHS to be able to deliver the benefits that have been so rightly predicted. Most of all, without ensuring a broad research culture across all NHS institutions and organisations, we are going to lose the direct consequences of such a research culture and infrastructure in terms of the fact that patients in research-active institutions have better clinical outcomes.

To move away from those two broad areas—the important impact on patients and the important opportunity to provide the broader research agenda with the innovation that flows from it—there is a third imperative: our capacity to attract and retain staff. As with any facet of manpower planning, it is vital to provide the opportunity for NHS staff members and healthcare professionals to be research-active. It provides a substantial incentive and encouragement and allows for career development, ensuring that we retain colleagues for longer and are able to develop them to make different contributions—all vitally important. If we take this as a whole, it is appropriate that Her Majesty’s Government give some very careful thought to the purpose of these different amendments and how what is being said in your Lordships’ House today might be included in the Bill in such a way to strengthen these research obligations and ensure that NHS organisations deliver on the health agenda.

17:15

In finishing, I make one further observation. Beyond the health gain that drives a research strategy applied across the entire NHS, there is a broader wealth gain for society and our economy. It is well recognised that after financial services, the field of life sciences represents one of the most important economic sectors in our country. To fully mobilise that opportunity, we need to ensure that, while its primary objective is to secure high quality, effective and safe care for all patients, every part of the NHS is also mobilising that public investment to ensure that what can be done to promote research and innovation, is being done, so that the second opportunity—driving wealth creation in our country—is also achieved.

[Baroness Harding of Winscombe (Con)]

My Lords, I rise to speak on behalf of my noble friend Lady Blackwood of North Oxford and the noble Lord, Lord Patel, neither of whom are, sadly, able to be here today.

[Noble Lords]

Oh!

[Lord Kamall (Con)]

The noble Lord has recovered.

[Baroness Harding of Winscombe (Con)]

I am sorry—the noble Lord, Lord Patel, is here. I meant to say the noble Lord, Lord Bethell. I apologise for my senior moment.

I will begin again. I rise to speak on behalf of my noble friends Lady Blackwood and Lord Bethell, neither of whom is in their place. I should, out of an abundance of caution—particularly given how well I have spoken so far—declare the interests of both my noble friend Lady Blackwood and me, as the present and past chairs of Genomics England.

In speaking to Amendments 79 and 196, we wish to support the noble Lords, Lord Sharkey, Lord Kakkar and Lord Patel, in calling for trusts and integrated care boards to have a duty to conduct research and to report on the steps they have taken to deliver it. We know that there are excellent research-active NHS organisations in the UK, ranging from our acute tertiary university hospitals, such as Oxford, to our district general hospitals, such as Portsmouth.

There are many initiatives to promote research, such as Saving and Improving Lives: The Future of UK Clinical Research Delivery, which sets out a bold and exciting vision. In particular, my noble friends and I await with interest the Find, Recruit and Follow-up service, which plans to use digital tools to identify patients who may be suitable subjects for research. When speaking to patients, one of the refrains that we all hear most often is that they find it hard to find suitable clinical trials, and we welcome any initiative that can make it easier for patients to take part in clinical research.

As well as supporting patients in finding trials, we need to make it as easy as possible for them to participate. In some cases, the pandemic has accelerated a move towards remote monitoring tools—wearables and other devices that allow individuals to participate in trials while reducing the number of visits they have to make to hospitals. We welcome the NIHR remote trial delivery toolkit, which makes recommendations on how some of these positive practices can be continued and so broaden participation and promote patient retention in a beneficial way.

My noble friend Lady Blackwood, as a rare disease patient herself, knows that clinical research is often the only way for patients to get access to innovative treatment. Yet we are saddened to see, in the annual NIHR publication on initiating and delivering clinical research, that some trusts are still not delivering trials every quarter. We continue to see a large disparity in the number of trials being offered in each trust, which leads to a postcode lottery. Those individuals fortunate enough to be under the care of a research-active hospital have an increased chance of being recruited on to a trial, and therefore have better outcomes than patients under the care of less research-active hospitals.

Patients admitted to more research-active hospitals also have more confidence in staff and are better informed about their condition and medication. And as the noble Lord, Lord Davies of Brixton, has said, there is very clear evidence that research-active trusts deliver better outcomes—in part, I am sure, because of their ability to retain and energise staff, as the noble Lord, Lord Kakkar, has mentioned.

The last couple of years, however, have been challenging for the health research community. In 2020, the Association of Medical Research Charities predicted a £320 million shortfall in research spending, forcing many medical research charities to make tough choices about which projects to prioritise. Data also suggests that the UK has been slower to return to pre-pandemic levels of commercial clinical research compared with other European countries.

The Life Sciences Vision sets out the Government’s objective to be a science superpower, but this requires research to be embedded in every part of the NHS, including primary, community and mental health services. That will happen only if NHS organisations, including the new integrated care boards, have a duty to conduct research, as these amendments propose.

In addition, we all know that what gets measured gets done, which is why these amendments place a duty on trusts and ICBs to report the steps that they are taking to deliver clinical research in their annual reports or forward plans. This not only enables progress to be tracked but helps patients understand what research is being done in their area and will encourage NHS organisations to invest in research that meets the needs of their local communities and—

[Lord Lea of Crondall (Non-Afl)]

I am sorry to intervene. I am fascinated by everything that is being said but, given the cliché that money does not grow on trees, I am a bit surprised that we have not heard as much as we might have about international collaboration. Is that not a big deal? How would that be measured, as it were, as compared with the issues that the noble Baroness, Lady Harding, has already raised?

[Baroness Harding of Winscombe (Con)]

I personally believe that international collaboration and engagement in research across all parts of the United Kingdom go hand in hand. It should not be either/or; it is a combination, and we need to do both. The amendments that I am speaking to call for every NHS organisation to participate and become research active.

Finally, and briefly, I urge the Minister to embrace this opportunity to embed what is genuinely cross-party support for clinical research in legislation. We all want to put the UK on the path to being the best place in the world to participate in health research. We will do that, as the noble Lord suggests, by collaborating internationally, but we will address the health inequalities that we have all spoken about over the many days of Committee only if all NHS trusts have a duty to conduct research.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I agree with the thrust of all these amendments. Most of the discussion has been about research—encouraging research in clinical trials within NHS trusts and foundation trusts—but I want to speak in support of Amendment 78, in the name of the noble Baroness, Lady McIntosh, which looks at the issue of commissioning and the role of integrated care boards, because I believe that it is just as important to ensure that integrated care boards have in mind the need, through their commissioning policies, to encourage innovation. In our last debate on NICE, last week, we discussed the same issue, which is the fact that the reason NICE exists is that there are many innovative new medicines and treatments coming on stream, many of them developed in the UK, which the health service has found difficulty in adopting more generally.

The noble Baroness’s Amendment 78, about ICBs, is designed to encourage the ICB boards to consider that they have a responsibility in relation to innovations. It also proposes that integrated care boards must appoint a dedicated innovation officer to the board. I do not want to open up the issue raised by my noble friend Lady Thornton as we went into Committee, but we come back to the issue of the composition of ICB boards. She referred to guidance issued by NHS England a few days ago, which is not obtainable in the public domain. It is obtainable through something called “NHS Net”, but the Library has not been able to get hold of it. It is a bit much that advice on the contents of the Bill has been given out which we cannot even see. I hope that, as part of his response to my noble friend Lady Thornton, the Minister will look into that.

On the question, “Why add another postholder to the board of an ICB?”, I point to the Nuffield Trust report, which says that no organisation in the health service at the moment—or very few places—has someone with a direct responsibility for encouraging innovation. The Nuffield Trust thinks that having chief innovation officers with broad oversight could make what it calls a fundamental difference. I refer the noble Lord to research by the ABHI, which is essentially the trade association for medical devices. It showed that fewer than 20 NHS trusts across the UK have a member of their board with explicit responsibility for the uptake of innovative technologies.

Sometimes one must be wary of having a board appointment that may seem to be a token appointment. However, when it comes to commissioning, having someone around the table who is constantly reminding the board that through commissioning we must encourage and invest in innovation, would be very helpful. The slew of amendments tabled by the noble Baroness, Lady McIntosh, is valuable in getting that message across.

[Lord Patel (CB)]

My Lords, I am seriously concerned, for my sake, that I am invisible to the noble Baroness, Lady Harding—which I regret, but I will tease her about it.

[Baroness Harding of Winscombe (Con)]

My Lords, I fear that is my blindness and my problem, not his. I am very sorry.

[Lord Patel (CB)]

My Lords, I am only teasing.

I declare an interest as a fellow of the Royal Society of Edinburgh and of the Academy of Medical Sciences, and as a professor emeritus at the University of Dundee, where I have spent all my life bar the first 18 years. I say this because we have lost something in the United Kingdom. A key strength of our academic clinical departments was a worldwide reputation for conducting health service-related research. We were second to none, and I mean that. We have lost that because we have changed the environment. People who work in clinical academic institutions—our so-called teaching hospitals—no longer have the environment to promote that. It was the duty of those of us who worked in clinical academic departments to grow the next generation of academics. It was important that we were all involved in conducting clinical research that produced innovation, better care for patients and a first-rate, first-class, internationally renowned next generation of academics. We do not have that any more, and anything we can do through this Bill to bring that back would be a major plus.

I will speak to the amendments tabled by the noble Baroness, Lady McIntosh of Pickering, and the noble Lord, Lord Sharkey. Much has been said, excellently, and I will try not to repeat it, but a strengthened research mandate through this Bill could support patients, clinicians, NHS organisations and research. The patient benefits from increased research activity have already been mentioned, but there is a significant variability across the UK in the opportunity for patients to engage in research. A strengthened mandate could support ensuring that all patients can access clinical trials and their associated benefits. Therefore, wider changes are needed to increase the competitiveness of the UK as a destination for research, particularly through the proposed changes to clinical trials legislation, and through increases in Department of Health and Social Care and NIHR funding.

This could include measures to support faster approval timelines and closer multiagency collaborations. Clinical research has clear benefits to patients, as has already been mentioned. NHS trusts with higher levels of research have a higher rating from the CQC and better outcomes, as have already been said. During Covid, the UK has demonstrated its potential with the success of Covid-19 research, with 68 commercial Covid trials launched in the UK in 2020—the third-highest globally, beating the United States and the rest of Europe.

How did we manage to do that? It is because, during the emergency, we set up methodologies that allow patients to be involved in trials more quickly by creating a voluntary registry, where patients themselves volunteer to take part in research. I also note the clinical recovery trials that we set up—some noble Lords might have seen the article in the Times, with Sir Martin Landray suggesting that we follow that process in the future to try to find treatments for other common diseases. If we do that, we will lead globally. The NHS has the capacity to do that, but it now requires the will and the leadership from the centre to drive that. The clinical academics will be up to it—they just want to be given a chance. Let us do that, because we have demonstrated that we can.

17:30

However, since Covid, we have begun to drop again. We ranked only fifth in Europe for phase 3 trials in 2020. Across all phases, the UK has seen a decrease in commercial trial volume of 24%—or 34%, excluding Covid-19 research. There are clear economic benefits that we will miss out on—I could give the figures, but I will refrain.

The Clinical Research Network and NIHR supported £2.7 billion of gross value added in research and 47,000 jobs. The loss of commercial research across NHS trusts during the pandemic is estimated to have created a deficit of £447 million because we are slow to restart the clinical research that we had to stop because of the pandemic, while other countries—Germany, the Czech Republic, Slovakia, Hungary et cetera—have accelerated.

For a global organisation, trial placement decisions are based on a holistic set of factors, including study set-up timelines, cost, contracting and recruitment. UK Office for Life Sciences 2019 data shows the UK to be seventh in the average time from the core package being received to the first patient being enrolled—behind the US, Spain, Canada, Australia, Italy and Germany.

Before this debate, I spoke to several companies: Silence Therapeutics, EMIG—the ethical group of companies—Pfizer, AstraZeneca and others. I will mention one company: Pfizer, whose study set-up planning timelines fall behind those of many comparable countries, such as the US, Canada, Australia, Spain et cetera. To achieve its goal in clinical research, the UK must realise the potential of its unique health data. That is the key—we have unique health data.

I will give an example of a company that has produced a small-molecule drug to treat patients who might go into cardiac failure. It needs patients who are at risk of this. We have a health database that is unique in the world and that, through clinicians, can identify patients who might be at risk to enter the clinical trial. No one else has that. It does not counter patient-data legislation because it is done through the clinicians. It could be done through primary or secondary-care clinicians.

I think that I have said enough, but I refer again to Sir Martin Landray, who is known for his Recovery trial and use of dexamethasone for treatment of Covid. He is going to use Covid-style clinical trials by setting up a new company to try to find treatments for other common diseases. I urge the Minister to accept this amendment: it will do more good than most.

[Baroness Neville-Jones (Con)]

My Lords, I shall speak briefly in support of this group of amendments, particularly Amendments 79, 81, 96 and 196, which concern both research and clinical trials. I am grateful to the noble Lords who have put their names to them.

As other noble Lords have noted, the Government have actually recognised the need for integrated care boards to have research among their general duties—but one would be hard pressed to realise from the Bill’s drafting that this was a priority. As the noble Lord, Lord Sharkey, said well, the drafting is weak. We need something much more explicit and action oriented. Frankly, “promote” is a vague term that can mean anything or nothing. We need action-oriented language of a kind that puts the NHS and the resources that this country has right at the centre of medical research.

We need an amendment of the type that my noble friend Lady McIntosh of Pickering has put down to give us a national research strategy and join up the national and local levels in achieving it. The noble Lord, Lord Kakkar, has given us many reasons why we need to move on the whole subject of research and make it central to the National Health Service’s mission. We need something that is explicit in charging the NHS to conduct research and enable relevant bodies to do so as well. The results should be exploited in healthcare. Linking research to local needs will also increase their relevance, and the adoption of these results and the obligation to report on them will ensure that things really happen.

I could not find in the drafting any reference to the need to do clinical trials. Surely this is a central element in research and could be extraordinarily advantageous to the UK. As the noble Lord, Lord Patel, has just said, the NHS has a database that is unparalleled in the world. It provides us with an extraordinary advantage. I recall that when I was on the Science and Technology Committee, we heard considerable evidence about the barriers that were put in the way by rather pettifogging EU regulations. I recall the desire, when free of these, to be able to conduct clinical trials. I am aware that some people argue that the UK market is too small, but, with our database, that is not the case—and we can ensure that we have co-operation from abroad.

It is very important that this becomes a central element in our research programmes. It puts us on the map internationally, and it ensures that the NHS, which, after all, is a great consumer of the public expenditure in this country, is also part of wealth creation. That should be part of the result of the research that it conducts.

I do not think that the Government disagree with the thrust of the thinking here, but I very much hope that they will agree that the Bill’s drafting, as it exists at the moment, is inadequate. I hope that, when my noble friend comes to reply, he accepts that the language on both of these elements needs strengthening, giving a central role to research and clinical trials in the NHS.

[Baroness Merron (Lab)]

My Lords, I am grateful to noble Lords for putting forward these amendments, all of which seek to strengthen the Bill and build on what the noble Baroness, Lady McIntosh, opened with: the need for clear lines of responsibility and for a joined-up strategy—in other words, for us to get to the point that we are looking for.

My noble friend Lord Hunt spoke of the embodiment, perhaps, of that through a chief innovation officer, who could be a reminder—not on their own—of the need to build in research and innovation as core throughout commissioning. I am sure that the Minister has heard that this debate is a cry for us to embed in the Bill and in our NHS not just a requirement for but a delivery of research and innovation to the appropriate standard to serve the country. It will not just happen on its own.

We have seen significant variation of opportunity for patients to engage in research and disparities in participation reported on geographic and socioeconomic lines, by ethnic origin and across different disease areas. This is due to the fact that the NHS has been unable to prioritise resourcing and delivery of research, which has been a particular feature over the past decade.

In the Bill, we have a major opportunity to embed a research-active culture—words used by the noble Baroness, Lady Harding—within the NHS which could build on the response to Covid-19, which the noble Lord, Lord Patel, emphasised. That response saw more NHS sites, staff and patients engage in research than ever before. Let us not waste this opportunity.

The Bill offers little different to the Health and Social Care Act 2012, which also did not and does not mandate clinical research activity, stating just a duty for clinical commissioning groups “to promote” research. Your Lordships will notice the similarity in wording in the current Bill. The noble Lord, Lord Sharkey, is quite right, as are other noble Lords, to speak of the weakness of just using the words “to promote”. This set of amendments is about how we make it actually happen. The amendments are about mandating integrated care boards to conduct research and to monitor and assess innovation, because without that, it will just not happen.

Legislation is indeed a critical element, but it is important to stress that it must be accompanied by the necessary infrastructure: for example, through staffing levels—to which we will return in our next debate—research capability, digital resources and tools and access to services, as well as efficient trial approval processes, the ability reliably to recruit patients, the offering of guidance and, of course, dedicated staff time for research. All of those will make the legislation actually mean something.

As well as a strengthened legislative mandate which moves beyond the current duty simply to promote research, it would support patients, clinicians and NHS organisations across the country to have equal access to the benefits brought about by research participation. This will be better for patients, give greater staff satisfaction and deliver economic benefits not just for the NHS but for the broader economy. The noble Lord, Lord Kakkar, talked about the life sciences being a major player as a contributor to our economic well-being and prosperity in this country—something also emphasised by my noble friend Lord Davies.

Such a mandate would also ensure support for levelling up and make it possible to address health inequalities. This in turn would support the ambition set out in the Government’s clinical research vision: to make access and participation in research as easy as possible for everyone across the UK, including those in rural, diverse and underserved populations. I hope the Minister will take the opportunity to reflect on the points made in this debate, because this group of amendments provides an opportunity to strengthen the Bill to actually deliver.

[Lord Kamall (Con)]

Like many of the debates on this Bill in Committee, this has been a fascinating one. It has been really interesting to hear from experts who themselves have engaged in clinical research. I start by thanking my noble friends Lady McIntosh of Pickering and Lady Blackwood and the noble Lords, Lord Sharkey and Lord Kakkar, for bringing this debate before the Committee today. I also thank the noble Lord, Lord Howarth, for his points about the arts and social prescribing.

Before I turn to the amendments, perhaps I could make two personal reflections. One is from my early academic career as a postdoctoral research fellow. I saw the benefit of taking the results of my research directly into my teaching. It made the courses more dynamic—it was not just a repeat of last year’s slides for this year’s students—and it showed what progress we were making in that field of research.

17:45

Secondly, during my appointment as the Minister for Technology, Innovation and Life Sciences, it has been really exciting to see the level of research and innovation across this country, not only in the golden triangle that people talk about—London, Oxford and Cambridge—but throughout the country. It is evidence-led, research-led and really interesting, positioning the UK as a leading place for research and a hub for life sciences. We have looked at where our strengths are. One example is clinical trials. A number of companies say to us, “What is really interesting about the UK is that, especially with social care joined up, we will have data on patients literally from cradle to grave throughout their life”. But there are also all the different pathways and some of the exciting stuff we are doing with Genomics England, which opens up whole new possibilities.

In our previous debate, we heard from the noble Lord, Lord Rennard, about type 1 diabetics and how the technology is improving quickly. When I speak to relatives and friends who are type 1 diabetics, they are excited by the advances being made, which gives them greater confidence that they can lead as near as possible a long and healthy life.

Let me start by addressing Amendment 78, on integrated care boards reviewing all innovations. Although I appreciate the intention behind the amendment, for reasons that I will explain it is unclear what additional benefit such a review would produce. The National Institute for Health and Care Excellence already plays an important role in ensuring that patients have access to promising new innovations by recommending whether health technologies represent a clinically and cost-effective use of NHS resources. Where NICE so recommends, NHS commissioners are under statutory obligations to fund the technology. I note the previous debate on NICE and the points made by the noble Lord, Lord Hunt, but we expect that this requirement will carry over to integrated care boards.

On appointing a dedicated innovation officer and developing and maintaining a system to keep up to date with innovations on boards, this is part of the overall debate on how much you mandate at the ICB level, and I am sure that a number of noble Lords will recognise how many requests there have been to mandate particular places on the ICBs. I suggest that we consider that in the round.

The Accelerated Access Collaborative, the umbrella organisation overseeing health innovation and its ecosystem, will work with NHS partners to look to embed research and innovation within the new statutory ICBs. For example, in their proposed job descriptions, there is a clear requirement for ICB chief executives and chairs to foster a culture of innovation. I have seen a lot of such innovation in many places.

We also have existing reporting tools to monitor the use of innovative medicines and medicinal products. This includes NHS Digital’s innovation scorecard and the AAC scorecard. The AAC is also scoping the development of an innovation metric to help to identify and address unwarranted variation.

On Amendment 79, I share the noble Lord’s intention that the NHS should be research active, that research participation is diverse and research needs are met. The existing research duty in the Bill requires each ICB to promote research on matters relevant to the health service and the use in the health service of evidence obtained from that research. The existing research duty in the Bill is broad and wide-ranging, encompassing actions including facilitating and enabling research, such as through their commissioning functions. I am concerned that the amendment may narrow the research duty to a small number of actions which would not necessarily capture the existing range of activity.

Proposed new paragraph (a) in the amendment would also apply to

“those eligible organisations for which the integrated care board is responsible”.

Although ICBs will be able to influence and affect organisations through their functions, they are not directly responsible for any organisation. Rather than directly funding or conducting research, ICBs will primarily facilitate and enable research. But where it is appropriate for an ICB itself to play a more direct role in research, it will have the power to commission and conduct research, just as CCGs do currently.

A requirement for ICBs to

“co-produce with place-based partnerships research aims to meet the needs of their local communities and ensure diversity of participation”,

risks replicating the requirement for integrated care partnerships to prepare an integrated care strategy setting out how the “assessed needs” of their areas, which can include research needs, are to be met by the functions of the ICBs and others.

The Government are committed to diverse patient participation in research. I am sure that many noble Lords are aware of data, particularly for example in the area of artificial intelligence—as we know, it is not really intelligence but analysing large datasets to look at patterns and help the decision-making of clinicians and others. There has been a lack of diversity in data; we have seen racial bias, for example, in recruitment and college admissions. It is important that we do not repeat that in this country, especially since we do have a diverse population, and that we ensure that we have a diverse a research set as possible. I know from speaking to my noble friend Lady Blackwood that Genomics England is concerned about this and is looking to make sure that its datasets are as diverse as possible, especially with the increased use of AI.

There are requirements for researchers on equality, diversity and inclusion. These have been strengthened in research funded by the Department of Health and Social Care through the NIHR. Researchers are now expected to demonstrate how they will ensure that recruitment is inclusive and representative of the population. The Bill also requires that the forward plan must set out how the ICB and others propose to exercise their functions and the annual report must report on how it has discharged these functions. This must include how ICBs will plan and promote research and deliver clinical research.

Amendment 81 would mandate ICBs to develop a research strategy for patient benefit each year, following engagement with the NIHR and all relevant regional and national health and care organisations. However, ICBs already have a duty to promote research, and the power to commission and conduct research, so they will already need to plan their research activity to be able to discharge these functions. Where they are aware of local research needs, this should be addressed when they plan their activity. As a result, we do not think that it would add value to require ICBs to develop a separate strategy.

On the requirement for ICBs to engage with all relevant regional and national health and care research organisations, we expect ICBs to collaborate with relevant bodies where necessary without requiring this through primary legislation. Integrated care partnerships—ICPs—as joint committees of ICBs, local authorities and others, also have a huge role to play here. They must prepare an integrated care strategy setting out how the “assessed needs” of an area are to be met by the functions of the ICBs and others. Local research need could fall under an “assessed need” as it is capable of being met by ICBs and could be affected by the actions of the responsible local authority, so would need to be addressed by the integrated care strategy without the need for a separate strategy relating only to research.

The Government, through the NIHR and UK Research and Innovation funding, provide support to organisations to undertake research and develop strategies. This includes providing funding directly to meet support costs so that the NHS can deliver non-commercial research, through the NIHR Clinical Research Network, for example.

I now turn to Amendment 96, which would create a duty for ICBs to consider requests to engage in clinical trials and would mandate that participation to any eligible patient within their area. I understand and share the desire of your Lordships’ House for ICBs to take research seriously. A research-active NHS culture brings benefits for patients, staff, the NHS and the wider economy. I am keen that we harness those benefits to build on the progress made by CCGs as well as the research that I have become aware of since becoming the Minister for Technology, Innovation and Life Sciences.

In wanting to give ICBs the flexibility to develop the processes and structures that work most effectively, we feel that a statutory duty for ICBs to consider requests would be overly prescriptive. Also, a duty only to consider requests is likely to have little effect in practice. We expect ICBs to consider requests put to them without needing this to be in primary legislation. While ICBs will play a role in enabling and facilitating research in the NHS, in many instances we would expect that it would be for trusts rather than ICBs to consider participation in individual clinical trials.

We believe that a more effective way to broaden participation in these trials is to ensure adequate funding and infrastructure to support research in all parts of the country. The Government do this through NIHR funding and infrastructure; 100% of NHS Trusts in England are research active. This is due to support such as the NIHR Clinical Research Network, which meets many costs, including of equipment.

I turn to some of the questions on diverse trial participation. As noble Lords have alluded to, the Government published in March last year the UK vision for clinical research delivery. This includes provisions on diversity. It supports diversity in child participants through such initiatives as INCLUDE, funded by the NIHR. Other examples include partnership with the centre for black and minority ethnic health. In Leicester, the NIHR is addressing low participation by black, Asian and minority ethnic communities in research, in particular Covid-19 studies. These are just a couple of examples.

I turn now to Amendment 135, which aims to ensure that the ICB’s annual report covers research activity. In this Bill, ICBs have a broad duty to promote research and the evidence obtained from research, and they will be able to fulfil this duty by exercising their power to commission and conduct research. But ICBs will also be uniquely positioned to facilitate and enable research in ways broader than direct activity, such as through the exercise of their commissioning function. For example, ICBs could promote research by commissioning services from providers that are research active or are proactive in facilitating research—a much broader range of research, as the noble Lord, Lord Howarth, said.

The Bill’s drafting on the ICB’s annual report is deliberately broad and permissive, and sets out that an ICB must prepare the annual report

“on how it has discharged its functions”.

This already includes research activity, as well as broader actions to promote research. The Bill provides that NHS England may give directions to ICBs as to the form and content of an annual report.

On a requirement for an ICB’s annual report to cover the progress of applications considered by the relevant research ethics committee, I reassure my noble friend that the Health Research Authority, which administers research ethics committees, already publishes performance data on its website regarding the time taken to approve such studies. The HRA’s transparency strategy also asks research sponsors to include a plain-language summary of their findings in their final report; these can be found on the HRA’s website.

The requirement that the Secretary of State’s annual report on the performance of the health service should cover the research activity that ICBs have included in their annual report is something that we consider unnecessary as it would duplicate the performance assessment regime already provided for in the Bill.

I end my remarks on this group with Amendment 196. I understand the intention behind this amendment: making sure that research is taken seriously by NHS trusts is something that I think all noble Lords would agree on. However, we consider that an amendment to require trusts and foundation trusts to conduct research is unnecessary, since 100% of acute NHS trusts and foundation trusts in England are already active. The amendment would impose a duty for trusts to promote the use in health and care of evidence obtained from research. In fact, there is already a range of legislative and non-legislative means by which providers are required to provide services that are informed by the evidence from research. The equivalent duty already applies to CCGs, and will do so for ICBs.

As regards the requirement for NHS trusts to

“co-produce with place-based partnerships research aims to meet the needs of their local communities and ensure diversity of participation”,

I have already referred to a number of the requirements for diversity. On the requirement for NHS trusts and foundation trusts to publish, via their annual report, the steps they have taken to deliver clinical research, the NHS Act 2006 already requires this, and trusts must send their reports to the Secretary of State. NHS foundation trusts can similarly already report their research activity through their annual reports, which they are required to make publicly available.

The Government do not therefore believe that it is necessary to require on the face of legislation that trusts set out their clinical research plans in their joint forward plans. This is because the existing requirements in the Bill are deliberately broad. Having said all this, I have heard from a number of clinical research experts. Although the Government believe this, some research experts in this Chamber believe that it should be in the Bill. It is obvious, therefore, that further discussion is needed before Report so that we can consider this in the round. In that spirit, I thank all noble Lords for this helpful debate, which has been very informative, and ask noble Lords not to press their amendments.

18:00

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful to all who have contributed to what has been an excellent debate. I welcome my noble friend’s offer to have further discussions, which I am sure will be taken up actively by all those concerned.

However, there seems to be a bit of a mismatch between my noble friend’s reply and the very real concerns expressed across the House, including by the noble Baroness, Lady Merron, in summing up. The noble Lord, Lord Kakkar, said that there was insufficient emphasis and obligation for integration, and that the whole country would benefit from wealth creation—a point well made by my noble friend Lady Neville-Jones as well.

I was very moved by the reference of the noble Lord, Lord Patel, to the loss of status and standing of teaching hospitals. My father, a GP, always used to say that if you want something done, have it done in a teaching hospital. My late uncle was a surgeon at the Royal Infirmary, where his students rather fondly called him “Mack the Knife”—I hope for positive reasons, because he used it skilfully, but unfortunately it is too late to ask.

We need to press my noble friend further on strengthening the obligation and making it much firmer in the Bill. Is he prepared to move in that direction? I would like to say how proud I am to be British and living in a country where we have such a strong record on research and the data available. My noble friend the Minister did not respond on where we are with clinical trials—my noble friend Lady Neville-Jones and I particularly asked him about that—and I would be very grateful if he could write to me separately. On the basis that we can have further discussions on this, I beg leave to withdraw my amendment at this stage.

Amendment 78 withdrawn.

Amendments 79 to 82 not moved.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

We now come to the group beginning with Amendment 83. The noble Baronesses, Lady Brinton and Lady Masham of Ilton, will be taking part remotely.

Amendment 83

Moved by

[Baroness Walmsley]

83: Clause 20, page 17, line 25, at end insert “and to ensure the availability of sufficient well-trained staff to provide safe staffing levels.”
Member’s explanatory statement
This amendment draws the attention of the integrated care board to the need to ensure sufficient well-trained staff to comply with safe staffing levels.

[Baroness Walmsley (LD)]

My Lords, in moving Amendment 83 in my name, I want to speak to Amendment 86, also in my name, and to support Amendments 146, 170 and 171.

Everybody taking part in these debates, including the Ministers, would acknowledge the central importance of the staff of the NHS and social care, at every level, and their training, well-being and retention. However, it was clear from the evidence on the workforce to the committee and in debates in the House in another place that there is broad concern that planning for the provision of sufficient of the right staff in all areas has not been good enough. Given how long it takes to train a doctor, an allied health professional or a nurse, excellent forward planning is essential. Proposals were made in another place to improve that in the future but, unfortunately, the Government would accept only a mandated review every five years. This group of amendments is this House’s opportunity to try again, and I hope the Minister will be able to help us.

These amendments show that, in the opinion of noble Lords, the planning of health, public health and care staff must be based on an accurate, independently verified understanding of both the current situation and, as well as can be predicted, future need. Because the political responsibility lies with the Secretary of State, this information collection and planning must exist at the very top, as well as at NHS England and the ICS commissioning level. Clause 35 refers only to the workforce needs of health services, but Amendment 170 lays down detail on what the Secretary of State must do to fulfil this responsibility, not just for health but for public health and social care, since they are so interlinked. We look forward to the White Paper and legislation on social care and hope that workforce issues will be well covered in them, but we need to address it now, in this Bill, even though it would have been better to hear the Government’s proposals on social care first. Amendment 146 says what must be done at ICS level. Crucially, both amendments require appropriate consultation. But there is something I would like to add, and that is where my Amendments 83 and 86 come in.

Every hospital trust and primary care setting has done the work to identify and agree the safe staffing levels of each type and seniority of staff in each setting. This is based on an understanding of the local context and of the knowledge and skills needed for patient safety to deliver each treatment, and an assessment of how many patients can safely be looked after by each member of staff. This varies enormously from setting to setting—from a whole team of staff to each patient in operating theatres, to one-to-one in ICUs and premature baby units, and to several patients to one member of staff in less acute areas.

During the pandemic, we have seen these levels necessarily abandoned, with, for example, one ICU nurse being asked to care for two or even three patients at the peak. This has been an unusual crisis situation and services have had to be flexible, moving staff from one department to another, always, I hope, under the supervision of a staff member with the correct speciality. Hospitals have helped each other and ambulances have been diverted when no bed could be found for patients coming into A&E. That has been the advantage of having a National Health Service.

It has been very difficult for staff, and many have quit their jobs. We started the pandemic with tens of thousands of doctor and nurse vacancies, and the BMA has calculated that we currently have a shortfall of 50,000 full-time equivalent doctors—more than the number of unfilled posts. Our doctor-patient ratio is 25 years behind that of similar OECD countries. In the UK, before the pandemic, there was already a shortage of around 50,000 nurses, and still the healthcare system is nowhere near bridging that gap. In December 2020, a report by the Health Foundation, Building the NHS Nursing Workforce in England, said that the Government will need to exceed their target of 50,000 new nurses in England by 2024-25 if they want the NHS to fully recover from the coronavirus pandemic.

In January 2021, a survey by Nursing Times indicated that 80% of nurses feel that patient safety is being compromised due to this severe staff shortage, which is why my amendments focus on safe staffing levels. While there has been a good increase in the number of nursing students starting courses during 2020, this will not alleviate the issue of a lack of qualified nurses now or in the medium term. There are particular shortages among mental health and cancer support nurses. Cancer Research has also told us that one in 10 cancer diagnostic posts in England is vacant, which threatens the Government’s cancer target. There are also considerable shortages in other allied professions.

We have also seen a reduction in the number of in-patient beds in the last 10 years and bed occupancy rates well in excess of the recommended percentage. Even before the pandemic, some hospitals had no available beds at all during the winter period, leading to nearly every winter period being labelled a crisis. All this is because of the perennial failure to train enough staff.

Despite the increased use of technology, health and care continue to be people businesses, but there has not been enough effective planning to provide the workforce needed, not just for normal services but to provide the resilience needed for the winter and for future pandemics. This has partly been due to “leaky bucket” syndrome—the failure to retain staff because of the pressure and, in some cases, pay or pension issues. That must change. Health Education England is now to be incorporated into NHS England, and the Bill and the forthcoming social care legislation are opportunities to start again. We have one and a half million care workers, with high turnover. In order to improve retention, good training and a career path are needed.

I turn, however, to the detail of my amendments. Included in the duties of the new ICBs is, as set out in Clause 20, in new Section 14Z41, a duty to promote education and training. My Amendment 83 adds to that duty that it should train enough of the right staff to reach safe staffing levels in all areas. My Amendment 86 adds to new Section 14Z42, which covers the duty to promote integration, a duty to improve the ability of NHS and care staff to carry out their duties within safe staffing levels.

The latter amendment recognises the risk to staff themselves as well as patients when they are forced to work with fewer than the prescribed safe number of colleagues, or to extend their shift by many hours because there is nobody to take over. It is a risk to their physical and mental health and it certainly does not help the ability of student nurses and doctors to learn from their senior colleagues when they do not have enough time to breathe. It also causes burnout, leading to significant numbers of doctors and nurses considering leaving the profession or reducing their hours. Some 32% of respondents to the BMA’s April 2021 Covid-19 tracker survey said that they were now more likely to take early retirement, while half reported being more likely to reduce their hours.

I believe that safe staffing levels are part of the duty of care that employers owe to their employees in the health service. However, the Nuffield Trust, Health Foundation and King’s Fund have estimated that, by 2030, the gap between supply of and demand for staff employed by NHS providers in England could reach almost 350,000 full-time equivalent posts if nothing is done. Worryingly, that was based on pre-pandemic calculations. Overcoming unsafe staffing levels is an essential measure to ensure patient safety and to boost the well-being, morale and productivity of staff and, therefore, their retention. The Bill is an opportunity for the Government to take sustainable action to alleviate issues relating to workforce supply and demand in England.

The duties proposed in Amendments 146, 170 and 171 would be welcome, and I support them, but they are not enough. I think that safe staffing should be specifically mentioned among the duties of the ICB, and that is where my amendments would put it. I beg to move.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

My Lords, we have two noble Baronesses taking part remotely. I first call the noble Baroness, Lady Brinton.

[Baroness Brinton (LD) [V]]

My Lords, the present Health Minister and his predecessors for a number of years—far too many years, frankly—should not be surprised by these amendments, all of which cover the issue of workforce planning. Often, Ministers’ words and aspirations have been supportive but the reality is that, without proper long-term workforce planning, the NHS and our social care sectors will struggle to be able to plan for the medium term, let alone the short term.

My noble friend Lady Walmsley introduced this group by saying what is needed in workforce planning and why, and I support her brief but critical amendment to ensure patient safety. The other amendments in this group set out the how: whether the workforce planning reports or clinical and healthcare training needs in Amendment 171, the duty on the Secretary of State in Amendment 173, the report on parity of pay in Amendment 174 or the important Amendment 214 from the noble Baroness, Lady Finlay, on workforce boards. I am looking forward to hearing the expert contributions to follow on them from the noble Lord, Lord Stevens, and many other noble Lords, and I hope that the Minister will take note of how the lack of effective workforce planning is hobbling the provision of health and care services in England.

18:15

I will focus on Amendment 170 from the noble Baroness, Lady Cumberlege, which I have signed, which sets out the reporting structures for appropriate long-term planning, addressing future workforce supply over the next five, 10 and 20 years, along with who should be consulted and, importantly, that independent assessors should confirm that the data used is correct. We need to remember that, in the election in 2019, the Prime Minister promised 6,000 more GPs by 2024 and, before him, his predecessor Theresa May had promised an extra 5,000 GPs by 2020. Both were setting themselves up to fail, because it takes five to seven years to recruit and train a GP and another two or three years to provide the extra staff on clinical undergraduate and postgraduate courses to teach them. It is worth noting that the full-time equivalent number of GPs in 2015 was 42,961, which had dropped—not increased—to 35,991 last year. That is a drop of around 15%, and evidence of the burnout and drop-out that my noble friend Lady Walmsley referred to earlier.

Workforce planning must look beyond the traditional doctor and nurse workforce numbers that appear in election manifestos. We know that our healthcare practices are changing, with nurse practitioners, specialist physios, occupational therapists, radiographers and many others all picking up tasks formerly carried out by doctors. With in-patient stays reducing in time thanks to advances in surgery and new treatments, our health and social care system needs to develop new pathways in community deliveries. Without a specialist workforce plan for community deliveries, it will also fail.

The fundamental problem here is, I presume, the cost of clinical courses. Ministers have chosen in the past to rely on bringing qualified healthcare staff in from abroad, especially from low and middle-income countries. This is morally wrong. I am really grateful for the correspondence from Professor Rachel Jenkins, who rightly reminds us why the NHS’s constant use of clinicians and healthcare professionals from lower and middle-income countries, rather than increasing the university and training places for our own home-grown health professionals, is so damaging:

“The heart of the problem is the sheer scale of loss of health staff from low and middle income countries (LMIC) to high income countries, especially to the UK, which has 30% of its doctors recruited from and trained by low and middle income countries, approaching double the OECD average of recruitment from LMIC, and with the situation escalating fast.”

Around 20 years ago, when I was a trustee of Christian Blind Mission, a global disability charity, I saw the consequences of this in practice. CBM worked with the exceptional surgeon Steve Mannion, who provides innovative club-foot surgery and treatment and trains Malawian medical students and doctors in his ground-breaking surgical practices. In 2003, along with local surgeons across Africa, he helped to set up COSECSA, a surgical college to cover central, eastern and southern Africa. He did this because, as he said in 2003, he was the only orthopaedic surgeon for the central and northern regions of Malawi, a catchment population of 6 million to 7 million people. He was clear that this was caused by countries like the UK offering attractive posts in our hospitals, which had catastrophic consequences on medical services in their own countries. In 2003, there were more Malawian surgeons in Manchester than in Malawi.

Because of the lack of workforce planning and funding in place to train those needed for our NHS, many of our hospitals have had to rely on this willing, responsible and committed cohort of professionals from across the world. We are still depriving Africa of surgeons and countries such as the Philippines of nurses, and it is not good enough. My local hospital, Watford General, has a good scheme by which nurses from the Philippines come for a specific time only, and return home with not just experience but further qualifications under their belts.

There is a place for this type of arrangement, but it must not be at the cost of draining the skills from lower-income and middle-income countries and should not be a replacement for the responsibility we bear to ensure that we have the ability to train our own local workforce. I am really grateful to Professor Jenkins for her timely letter. She also pointed out that the ratios of doctors and nurses in lower-income and middle-income countries are still sometimes a third of the numbers we have in more developed countries.

I return to the principles behind the amendments in this group. The lack of proper and effective long-term workforce planning exacerbates many of the problems in our NHS and social care sector. This Bill and these amendments give us the right number of staff that we need to be able to do this, but, without any workforce planning, it will be entirely hit and miss. We need resilience. We cannot continue to lose staff because of the pressure we are putting them under. We must not have a service that becomes unsafe because staff step up to do extra shifts, over and above, when they are extremely tired.

We have to have clear career pathways linked to workforce planning, not just in the NHS but in social care. We cannot have the position we have at the moment, where social care is being denuded of nurses because they are all going to the NHS, which can offer them more pay. Above all, we need a key tool for the design, funding and delivery of health and care services in England in future. These amendments, especially Amendment 170, set out how we can do that. I look forward to the Minister’s response.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

My Lords, we have one more noble Baroness taking part remotely. I invite the noble Baroness, Lady Masham of Ilton, to make her comments.

[Baroness Masham of Ilton (CB) [V]]

My Lords, I am very supportive of this group of amendments. There cannot be a safe, effective National Health Service without an adequate, well-trained workforce in hospitals, in care homes and for people who need care in their own homes, as well as adequate GPs and community staff.

At this time, it is more difficult than ever to recruit, as so many nurses and carers left to go back to Europe and the world has been struck by the coronavirus. Many people are off sick with the virus or isolating, and some are tired with stress and overwork. It is not helped when the relations and partners of patients have not been allowed in to help disabled and elderly patients in hospitals. They can help with feeding and giving patients extra help and support, which staff do not have the time to do.

The Royal College of Nursing says that the Bill gives

“no assurance that the system is recruiting and training enough staff to sustainably deliver health and care services.”

As has been said, there should be forward planning for the workforce. For example, the biggest barrier to improving early diagnosis of bowel cancer is long-standing staff shortages in endoscopy, pathology services and gastroenterology, with 43% of advertised posts not being filled. This is really serious. With so many posts across the country not being filled, a variety of specialties are so badly needed. There must be more training opportunities. Without adequate training, there will be no hope of filling the unfilled posts.

It would be very welcome if the Government brought some amendments on Report to help make the recruitment of staff, who are so desperately needed, more successful. Without enough staff, all the important things your Lordships have been discussing today, such as innovation and research, will be unachievable. A thriving workforce is absolutely essential.

[Lord Lea of Crondall (Non-Afl)]

My Lords, manpower planning requires a bit of definition. In my role at the TUC over many years, one of my functions was to look after all the sectoral committees. The most assiduously attended was the health services committee. As we all know, there is an enormous number of specialities in the health service.

When it comes to manpower planning, why did people not press the right button? I am afraid that there is no button to press. In 1947 Aneurin Bevan found that with the British Medical Association there was no wish or desire on the part of the doctors to be part of a structure where a button could be pressed—as might be true in a great corporation—to make sure that the plan for manpower was implemented. As we all know—I will be corrected by someone in this Committee if I have got it wrong—GPs are not appointed by the National Health Service in the way you would appoint somebody to be in charge of an oil refinery in the oil industry or whatever.

It would be useful if the Minister—and I have given notice of a question along these lines—could say what the subjects of the workforce strategy in the Bill would be. How would it be funded? What would be the timescale for introducing it? How often would it be updated? The analysis would have to include such questions as reliance on locums; anecdotally, they can prove very expensive. Will there be targets and associated timescales for the reductions in vacancies?

All of this is easier said than done. I think the remark can legitimately be made that money does not grow on trees, so how are we going to proceed on this? I do not think that everybody who advocates manpower planning is totally naive. Jeremy Hunt in the other place advocated something very much along the lines of what we are talking about now. The focus of the question was on whether five years, 10 years or some other number of years was far too long. There should be reviews every two years or on some shorter timescale.

I confess that, if I were the Minister, I would say, “You’re begging the question of whether we know what we’re talking about when we talk about manpower planning”. So I would be glad if the Minister, in giving some thought to this debate, would care to write to noble Lords—not a White Paper or anything like that—to answer specifically how this thing would work. It is an excellent initiative, and I very much welcome the fact that there is a clause in the Bill providing for this manpower planning.

Edward Argar, for the Government, said that substantial work was ongoing, and referred to a 15-year strategic framework for the health and social care workforce, so the beginnings of creative thinking in this area have gone some way. I congratulate the Government on that. I am afraid, however, that until we get Ministers to be a bit more explicit about what we are talking about, and how the workforce plan will work, this will be a missed opportunity.

In conclusion, I acknowledge that there are a number of sacred cows in this area—and unfortunately, many of those sacred cows are incompatible with each other. It would be useful if the Minister acknowledged that we are asking the right questions. That, obviously, is the necessary precondition to finding the right answers.

18:30

[Baroness Cumberlege (Con)]

My Lords, I shall speak to Amendment 170, in my name. I thank the noble Lord, Lord Stevens of Birmingham, who supported my amendment, the noble Lord, Lord Hunt of Kings Heath—I do not know whether he is coming back—and the noble Baroness, Lady Brinton, who has already spoken. I thank the noble Baroness for speaking to the amendments in her usual comprehensive and thorough way. It was interesting that she talked about Malawi and the Philippines, and the issue of local training, which is so important.

We have all applauded health and care workers, both on our own doorsteps and when we meet them, on or off their job. Omicron has put them under huge pressure yet again, but despite that—despite isolating or testing positive—we know that they will cope. The NHS will cope.

The NHS is a public service, which means the service works for the people. That is its sole purpose. To achieve that, normal service must resume as soon as possible. The public have been understanding: they understand that there is a crisis, and that normal service cannot be delivered right now. There can be no doubt that Covid and its variants are a crisis for health and care. But Covid is a crisis atop another crisis, a deeper malignancy, which constrains and threatens the NHS—and, of course, the care sector; we must think of the two together—with or without Covid. I speak of the workforce crisis, now considered by experts, and by people in the service and outside it, the single greatest problem that the service now faces.

Numbers can be used to make any argument stand up, even a spurious one. But in the case of our health and care workforce crisis, the numbers are real, stark and heading in the wrong direction. Two years ago, before the pandemic, the average number of vacancies in adult social care was 112,000; the average number of vacancies in the NHS was 101,000. It is no secret that Covid is making a very bad situation worse. Internal NHS figures showing total absences across acute, mental health and community trusts nationally hit almost 120,000 on Wednesday 5 January. NHS staff absence figures are published weekly over the winter. The reported figure for staff absences, published last Thursday, 13 January, show that a weekly average of almost 89,000 hospital staff in England were absent, with the highest one-day peak for this winter being over 94,000. This is piling pressure upon pressure.

That tells us that we have a serious problem here and now—and, as the noble Baronesses, Lady Masham and Lady Brinton, said, it takes a long time to train skilled health and care staff. We need to act now if we want to feel the benefit in future. According to the Royal College of Physicians, nearly 48%—nearly half—of advertised consultant posts went unfilled in 2020, mostly due, sadly, to a lack of any applicants. The noble Baroness, Lady Finlay, mentioned this in a previous debate.

There are nearly 40,000 full-time equivalent nurse vacancies in the NHS in England. That is a vacancy rate of more than 10%. The Royal College of Nursing expects 52,000 nurses to retire in the next few years. Nearly 7% of roles in adult social care were vacant in 2020-21. It is estimated that we are 50,000 doctors short, and in total the Health Foundation says we need 488,000 more healthcare staff in the next decade. I apologise for flinging so many figures at your Lordships, but they underline a simple yet serious problem—and if we do not have credible, reliable, up-to-date numbers, how can we plan?

The health and care sector urgently needs better workforce planning. We need to know how much slack is in the system, and how it can cope not only with the expected but with the unexpected. We know from the experience of the last two years that the unexpected can, and so often does, happen.

Behind all those numbers are real people—professionals working flat out every day and every night to keep the show on the road, to care for patients and to keep them safe. I think we all agree that they are doing a valiant job, trying to be professional and compassionate, often in desperately difficult circumstances. But there is only so much that people can do when their team is not at full strength.

I am the first to admit that my amendment will not solve the workforce crisis. It will, however, provide the NHS and the care sector with a regular accurate national picture of the numbers of staff needed now and in future to meet demand. It will be publicly available, so we will all be able to see what is needed. It will provide a strong and much-needed foundation on which to take decisions about funding, skill mix, regional shortfalls and shortages of specialists. It will be published every two years. I think published annual assessments are too frequent. Two years is a reasonable interval: say, twice in the average time between general elections—one to say the last Government got it all wrong, and one to put it all to rights.

We could, of course, carry on as we are, without the information, a proper strategy or the ability to plan for the future—travelling in hope rather than expectation. That is not working. We already know that; the dozens of outside organisations which support this amendment— from royal colleges and professional bodies to charities and think tanks—know that; and, most importantly, the public know that, because they can see the pressure that NHS and care sector staff are under. To carry on like this would be to condemn our care services to flying blind through a storm. This amendment gives us the ability to set and navigate a sustainable course. With the extraordinary consensus behind this amendment and the impressive cross-party support we have had throughout Westminster, one would hope that it will find favour in your Lordships’ House and with the Government.

I listened carefully to the debate on a similar amendment in another place. The main argument Ministers made then was that the planned update to Health Education England’s 15-year strategic framework for workforce planning, known as framework 15, would do the job instead. I beg to differ, as do the 88 organisations which support this amendment. Previous versions of framework 15 have not quantified the workforce numbers, and the Government have been unable to confirm that the revised framework will set out the required numbers of staff. Even if the updated framework 15 had included projections of future needs—it did not—it would only be a one-off, and there would be no requirement regularly to update these predictions.

Might there be a concern about the financial implications of enacting this amendment? Do some worry that it may herald an increase in health and care staffing costs? I hope not, because to reject this amendment on those grounds would be a false economy. The NHS alone spends vast sums on agency staff, one of the most expensive and least satisfactory ways to manage an endemic workforce problem. The latest number I could find was for 2019-20, when the NHS in England spent an eye-watering £6.2 billion on agency staff, which was an increase on the previous two years. This amendment paves the way for reducing those expensive sticking-plaster solutions in favour of something sustainable and more cost effective.

There are, of course, many hurdles to overcome if we are to improve workforce planning and capacity management. There are issues that far greater brains than mine need to think about—the rise of AI, for example. In my household, married as I am to a farmer, as Members will know, AI has quite a different meaning. I am not referring to artificial insemination, but rather to artificial intelligence. What impact will that have on workforce planning and staffing? What about the rising trend of part-time work, telehealth or changes to skill mix? Those are all good questions that these clever brains stand a far better chance of answering if they have alongside them the regular, credible, national picture that this amendment seeks to provide.

In my view, we owe it to the staff working in health and care, and to the public who rely on them, to do better, to plan better, to prepare for the future and to ensure that the NHS and the care sector are at full strength. This amendment points us in that direction, and I hope the noble Lords here to answer the debate today will work with their colleagues in government to see the value—the worth—of this very simple amendment.

18:45

[Lord Stevens of Birmingham (CB)]

My Lords, in theory these amendments should not be needed, but in practice they clearly are, as the noble Baroness, Lady Cumberlege, has just so forensically set out. It is a statement of the blindingly obvious, particularly coming out of the pandemic, to say that we need better workforce planning at a time when staff are exhausted from having dealt with Covid for several years and the NHS is confronting the need to deal with the backlog of care.

But, frankly, it would be a statement of the blindingly obvious at any time, because the lead times for decisions on training for health professionals are such that they go beyond any individual term of Parliament or government manifesto. Universities need a strong signal as to what future demand will look like. The interconnectedness between health and social care means that we are actually thinking about a workforce of 3 million plus, and the materiality of getting it wrong over a five or 10-year period is bigger in this sector of the workforce than any other part of the economy. As we heard earlier—I think from the noble Baroness, Lady Walmsley—estimates from the Health Foundation, for example, suggest that on the current trajectory the gap could be more than a third of a million staff in the health service by 2030-31; and in respect of the social care workforce, Skills for Care talks about perhaps 490,000 additional posts being required over the period to 2035. Those figures may be right or they may be wrong, but there is not a forensic forum in which those debates are scrutinised and choices made. This is not just about more; this is about different.

It is not all doom and gloom. Over the last two years, during the most intense challenge the health service has faced since its creation, nearly 160,000 people have signed up to join the health and care staff and professions. We have seen applications for undergraduate nursing up by more than a quarter and a huge increase in applications for and interest in studying medicine, yet we have an acceptance rate of only about 52% for undergraduate nursing, according to figures from UCAS, and we are turning away bright and brilliant young people with fantastic A-level grades who would like to study medicine. That is a paradox which stems from the fact that, unlike the day-to-day running costs of the health service, those items which have the longest planning horizon—workforce and capital investment—are the areas with the shortest financial horizon.

Of course, it may well be argued by the Government that we are about to turn a corner and that although there has been a degree of short-termism hitherto, things are about to improve. But I am afraid that I think we are entitled to treat that proposition with a degree of scepticism, because although what has been said up until now may be blindingly obvious, in fact what we have been confronted with is wilful blindness. Health Education England, which should be looking at 10 years, does not yet have its running budget for 10 weeks’ time. If we look back over the history of recent years, we can see a series of missed opportunities. The Minister may assure us that we will be presented with this 15-year further vision from Health Education England this coming summer, which will, of course, be welcome. But if we remind ourselves of the history since 2014 or 2015, as I say, we can perhaps be a tad sceptical. Obviously, I draw attention to my prior NHS interest, and everything I am about to say only draws on the public record, just to clarify that point.

It was back in 2014 that the NHS Five Year Forward View talked about the service changes that were required, but it was not permitted to talk about future capital investment, social care or workforce training, since they were being kept separate. So, in summer 2016, the Department of Health and Social Care was going to produce this detailed quantified workforce plan instead. Twenty-sixteen came and went and instead, in December 2017—three years after the Five Year Forward View—Health Education England launched a consultation document which said: “Your responses will be used to inform the full strategy to be published in July 2018 to coincide with the NHS’s 70th birthday.”

Twenty-eighteen came and went, and answers saw we none. Then in June 2019, we got another, in this case interim people plan, with lots of excellent content but unfortunately no actual numbers and no new pound notes. Despite the fact that it promised:

“We will aim to publish a full, costed five-year Plan later this year”


quantifying

“the full range of additional staff needed”.

But again, “later this year” came and went, and no such documents saw the light of day, until in July 2020 we had a one-year people plan which, at that point, was covering just the next eight months. Fear not, though, because it said:

“Further action for 2021/22 and beyond is expected to be set out later in the year”—


in 2020—

“once funding arrangements have been confirmed by the Government.”

That did not happen.

Instead, in July 2021, last summer, the Department of Health and Social Care again commissioned Health Education England to start from scratch. Last November, HEE published a short PowerPoint—commissioned from a firm of accountants—with the discouraging disclaimer on the first page that:

“We do not warrant or represent that the report is appropriate for your purposes”


and “no warranty is made as to the accuracy of any data”. As it happens, that does not really matter because there were no real data in the document anyway, which came to startling conclusions such as “workforce demand will be affected by demography and disease”.

I think we are entitled to say that this litany tells us that what, to everybody else, is blindingly obvious has instead been confronted with wilful blindness. What explains this? Is it a lack of interest on the part of the committed people to getting this right? No, it is not—some excellent work has been done. Your Lordships may take a clue from a statement that Jeremy Hunt, the former Secretary of State and now Chair of the Commons Health and Social Care Committee, made last Tuesday, when he said that “the Health and Social Care Committee has recommended on numerous occasions that we should have independently verified forecasts of the number of doctors, nurses and other staff that we should be training for the future. But that has been blocked consistently by the Treasury”.

Without in any way commenting on or editorialising that, the Minister may want to take the opportunity to confirm whether that is indeed the case. But just on the off chance that he does not refute the statement Jeremy Hunt has made, then that, I think, tells us that unfortunately, these amendments are necessary and will strengthen the hand of Health and Social Care Ministers in the future. I cannot help thinking that, in their heart of hearts, past Health Ministers know that they would have benefited enormously, were these amendments on the statute book. I am afraid that, if the Government choose not to support these amendments—as I hope will not be the case—that will be proof positive that they are very necessary. Therefore, I hope they will recognise that ignorance is not bliss and if we do find ourselves in that situation, this House will take the opportunity at Report to give the Commons another go.

[Lord Patel (CB)]

My Lords, listening to my noble friend Lord Stevens of Birmingham, I am beginning to feel the pain of his frustration at being chief executive of the NHS and not being listened to in order to fix such an important issue as workforce planning. Also, there is a bit of déjà vu that he may remember, along with some of my colleagues who were took part in the Lords committee inquiry into the long-term sustainability of the NHS and adult social care.

Let me argue the same issues that he just presented. The report on the long-term sustainability of the NHS and adult social care, published in April 2017, looked at data on demographic and disease burden projections of the population over the next 15 to 20 years. It identified a lack of long-term workforce planning as a key threat to the long-term sustainability of the NHS. The Committee heard from the then Secretary of State, the right honourable Jeremy Hunt, who had this to say:

“workforce planning is an area where we have failed… Brexit will be a catalyst to get this right… That is an area where we need to be much more strategic”.

That was nearly five years ago and yet, there is no strategic healthcare workforce plan from the Department of Health and Social Care, as we just heard.

The solution is not going to come from an outside body, no matter how influential. It has to come from the centre, from the leadership of the NHS and social care, and not one in the isolation from the other. What we have heard from the centre and NHS organisations is many publications identifying the problem, but not the solution with a long-term plan. We are told that this may be coming in April 2022—or perhaps later.

On the other hand, there are several detailed authoritative documents on the NHS workforce from think tanks, NHS providers, the BMA, the nursing councils and many others, who have been grappling with this issue and trying to find a solution for a long time and advising the Government on how to do this. There is no lack of authoritative reports based on data related to long-term projections of population, its demography, health needs and the workforce needed to deliver them. For example, an extensive, well-researched report by Dr Latifa Patel, a respiratory paediatrician, and Dr Wrigley, a GP of medical staff in England, projected to 2045—based on population and disease data—the number of doctors needed in each speciality and possible models of plans to deliver on this by 2032. A document extending to 60 pages is not only highly informative and well-researched but identifies a way forward.

Since the Health and Social Care Act 2012, there has been inadequate workforce planning, fuelled by inadequate regional and national workforce data and a lack of accountability for it at government level. We are not training enough doctors, despite record numbers of people applying. The latest figures, as the noble Lord, Lord Stevens of Birmingham, mentioned, show a 21% increase on previous years in applications to medical schools of highly talented young people. This means the NHS is ill-equipped to tackle the backlog of care, is not prepared for future public health crises and cannot meet patient needs, either now or in the future.

If we compare England with EU nations within the OECD, which have an average of 3.7 doctors per 1,000 people, the medical workforce in England is currently short of around 49,000 full-time equivalent doctors. Without significant intervention regarding the current rate of growth, the estimate is that the future medical workforce shortage will be between 26,889 and 83,779 full-time doctors by 2043. Such precise numbers show how well-researched this document is. Each full-time doctor in NHS England is doing an average of 1.3 full-time equivalent roles. I have three of them in the NHS and I can see what they do—although I tell them they are lazy compared to me.

19:00

The NHS faces a huge backlog of care, post pandemic. Estimates are that there were 3.37 million fewer elective procedures and 21.4 million fewer out-patient attendances between April 2020 and March 2021. On top of this, the population is expected to grow around 9% over the next 25 years to more than 61.5 million. At least one in four adults will be aged 65 or over, and the number of people aged 85 or older will have nearly doubled to 3 million by 2043.

Staff retention is poor and is set to worsen without intervention. This is caused largely by the vicious cycle of medical workforce shortages, overworking existing staff, years of demoralising pay erosions and punitive pension taxation rules. We have 1,307 fewer qualified full-time-equivalent GPs now than in September 2015, while shortages of specialist occupational physicians and public health doctors are severely impacting efforts to keep the population healthy. The shortage of medical academics means that training the next generation of doctors has become even harder. You do not just get medical or nursing graduates by increasing the intake: you have to provide the resources—manpower, equipment and capital funding—to train them. In the last 10 years, the senior clinical academic workforce reduced by 27%, while the number of medical students grew by more than 25%. For those of us who have trained medical students and postgraduates for years, medical undergraduate training committed at least two sessions a week from each one of us—that is one day—apart from undertaking extra duties. Not a single region in the country meets the current OECD EU country average of 3.7 doctors per 1,000 people.

The medical workforce itself is ageing, meaning that we risk losing around 16,818 secondary and 8,676 primary care doctors—a total of up to 25,494—in the next 10 years due to natural retirement. One in five doctors is saying that they will leave their career in the NHS altogether post pandemic. I repeat: one in five. This figure might be as high as 31,820 doctors. Those noble Lords who have not seen the recent report by the GMC might like to look at it, because it confirms these findings. Other health services carry a significant number of vacancies, but, even if all currently known vacant medical posts were filled tomorrow, we would still need 42,528 more full-time-equivalent doctors and doctors in training to meet the OECD EU country average of 3.7 doctors per 1,000 people in England.

International medical graduates have always been, and will remain, a key part of our medical workforce. However, international recruitment must not come at the expense of developing countries, so a sustainable, long-term workforce strategy is needed. While there is increasing multidisciplinary working within healthcare services, while there will be technological advances, and while non-medical roles have expanded in recent years, the doctors’ unique skill set is essential.

The report by Patel and Wrigley also makes estimates of cost based on data, along with reports from the Health Foundation and the Institute of Fiscal Studies report of 2018. To meet the current shortfall in the medical workforce by 2030 and increase training slots would require in the region of about £8 billion over the next three years. That is not so much when you consider, as the noble Baroness, Lady Cumberlege, indicated, that we are spending £6 billion on locum or agency fees.

I have spoken about the medical workforce, but I absolutely accept that similar problems—and perhaps even worse—need addressing in nursing and other healthcare professional workforces. I have no doubt that my noble friend Lady Watkins of Tavistock might well address that issue. I make a case for an urgent need—not in two years or three years or four years—for a strategy on health and social care workforce planning from the Department of Health and Social Care. The amendments in the name of the noble Baroness, Lady Merron, do this, and I have added my name to her two amendments. They put a duty on Health Education England to do this, and a further duty on the Secretary of State to report annually to Parliament, not only on the workforce plans but on the funding to support the plans.

There is only one thing that I would add, if the noble Baroness would accept it, and that is for the House of Commons Health and Social Care Committee to have an independent expert analysis carried out every two years on the delivery of government policy commitments on the health service workforce. An example of such an exercise is the one that the committee carried out establishing an expert panel that reported on mental health services and identified the gaps in the delivery of policy commitments in mental health. I strongly support the noble Baroness’s amendments.

[Baroness Verma (Con)]

My Lords, I declare my interest in the register. I am making a very short intervention just to talk about care workers. While there has been a great emphasis on the NHS, the crisis that the care sector is facing now is absolutely devastating. I was with care managers this morning, and they were wondering how they were going to manage the next few weeks, never mind the next few years. I urge the Government to understand that it is not just about added training and it is certainly not about planning for the future when the crisis is now. The crisis in the future cannot actually be estimated now, because we are in a crisis now.

So I urge the Government to look at the key issue around the sectors, and that is money. It is funding. We devalue the very people we expect to have value for in looking after the elderly, the disabled and those who need help. I came here not wanting to intervene today, but I was actually pushed by what I saw this morning with my care managers. They are absolutely struggling, trying to work out where they are going to find these magical beings who do not exist, because they have left the sector as a result of being so poorly paid, so badly treated and so deeply undervalued by everyone. I just wanted to put that intervention on record because, while we do need workforce planning, the problem is that we are so far behind the curve that it is going to take one mighty big plan to get this right.

[Baroness Hollins (CB)]

My Lords, I would like to follow the noble Baroness because my amendment relates to this issue. My Amendment 174 would require the Secretary of State to publish a report on the work undertaken to bring parity of pay between health and social care services.

When reflecting on the pandemic, it is clear that we owe an enormous debt of gratitude to our key workers, who went above and beyond the call of duty to keep people safe and healthy. Their efforts resulted in a deserved pay rise for NHS front-line staff. However, it highlighted the disparity between the treatment of healthcare staff and social care staff. While we clapped for both every Thursday, the gap in pay and reward between the two professions has grown even larger. This amendment reflects the undeniable need to see care staff recognised equally alongside NHS staff.

The social care workforce is, and needs to be, highly skilled. It holds a heavy weight of responsibility for the well-being and safety of vulnerable adults and children. Staff are trained to support medication, undertake PEG feeding, deal with seizures and administer first aid. They help people manage their finances, health and well-being, and they provide emotional support. They operate within a highly regulated sector, necessitating an understanding of health and safety, mental capacity and deprivation of liberty law, safeguarding and even how to positively manage challenging behaviour. The importance of their role cannot be underestimated. Indeed, the same can be said for other, highly skilled allied health professionals, such as nurses and occupational therapists, whose breadth of interventions provide enormous value within the care sector, as well as within the NHS. The turnover rate is just so high. It is unsurprising that staff such as nurses and OTs who can do so are more likely to seek better paid employment in the NHS.

A report recently commissioned by Community Integrated Care shows that many front-line workers in social care are financially “significantly undervalued” by as much as 39%—nearly £7,000 a year—compared to equivalent publicly funded positions. Social care struggles to match pay conditions available within the health sector, including pensions, annual leave entitlements and sick pay. That means that, when faced with the choice of working in either sector, individuals are more likely choose to work in health, if they can. We must help foster a culture of collaboration between the NHS and social care.

Skills for Care estimates that the adult social care workforce in England employs over 1.5 million people, yet there remains a major recruitment and retention crisis which, without intervention, is only likely to get worse. Currently, there are over 100,000 vacancies—that is around 6.8%—with projections estimating that nearly 500,000 new jobs will be needed to meet demand within social care by 2035. The turnover rate of staff is estimated to be over 30%, and higher still among those on zero-hour contracts.

Pay is not a panacea for addressing this issue. Much of it comes down to better wages being offered in other sectors which are able to use market forces to drive up employee pay. Furthermore, if terms and conditions are more closely aligned between social care and the NHS, staff may be able to move more easily between sectors, providing the continuity of care for their patients in the community, which is so valued by so many people.

Social care has been defined as a low-paying industry by the Low Pay Commission every year since the first report of the Low Pay Commission on the national minimum wage in 1998. The average pay for support workers in England who assist people to live independently in the community is £17,695, or £9.05 per hour, which is 45p per hour below the real living wage—that is the average. It seems nonsensical for a single system to have staff working at similar levels but some being paid significantly less than others. The Government have previously argued that, because of the existence of private providers in the care market, they cannot mandate a level of pay for care staff. But this just does not hold up to scrutiny: providers are paid an hourly rate for the contracts they are given by the local authority. This means that there is a conduit through which a fair rate for providers, and by extension employees, could be set.

The continued insistence that an increase in the national living wage is suitable remuneration for care staff does not reflect the level of skill and dedication that they display. While this may reduce the barrier to entering the adult social care workforce, we are still left with problems retaining what will go on to become a much more experienced workforce. There is very little incentive to stay in terms of pay promotion, and the experience pay gap has reduced even more, to something like 1% per hour in the past year. We must address this issue to support this workforce, now and for the future.

Higher pay and lower vacancy rates have been associated with more favourable outcomes during inspections by the Care Quality Commission, which is not surprising. Put simply, a stronger and more valued workforce improves patient care and retention. The demand for the skills of the workforce, now and for the future, means that ensuring parity of pay and conditions between the health and social care sectors is of paramount importance in the care, rehabilitation and protection of people who need this support.

I thank Mencap for a very good brief, Skills for Care for excellent statistics, and my noble friend Lady Finlay for supporting my amendment. I hope that the Minister will see its value.

19:15

[Baroness Watkins of Tavistock (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Hollins, and I completely support what she and the noble Baroness, Lady Verma, have just said. Unless care wages equate with the minimum for personal care in the NHS, we will never resolve this problem. I have been told by the National Care Forum that that means approximately £13.50 an hour. I would like to see that on the record.

The main reason I rise is in support of Amendments 173 and 171, which reflect other amendments looking at the need to ensure that we get workforce planning right for the future. Although we are talking about the future, we are also talking about the immediate crisis in social care.

I was amused at 6.36 pm to get a message from NHS Professionals, which said: “Dear Mary, you are receiving this email because you are registered on our NHS pathway for professionals. We still have many new opportunities that you would be interested in, so please feel free to log in and see now.” I do not know whether the noble Baroness, Lady Chisholm, who is just walking in now, has had the same email from NHS Professionals, but we both logged on at the same time—and she is nodding she has. We will stay here for the time being.

The pandemic has placed a spotlight on the health and care workforce and the pressures it sustained. However, these pressures are against a background of persistent under-recruitment, under-retention and under-representation. This shortfall has serious implications for patient and staff safety, as well as the efficiency of health and care services. In part, as others have said, this has been ameliorated by overseas recruitment. However, as a co-editor of the World Health Organization’s State of the World’s Nursing report last year, I have to say that that is not sustainable or ethical. However, I particularly congratulate the Chief Nursing Officer, Ruth May, for her initiative that enables and encourages refugees to register as nurses in this country, which is clearly an ethical practice.

A strategy to comprehensively monitor and meaningfully respond to the shortfall is essential to support the recovery and development of a strong, safe and sustainable workforce. As it stands, I do not believe that the Bill adequately mandates the actions required to achieve this ambition. As others have said, across the NHS there is a shortage of almost 100,000 full-time equivalent staff, with nursing staff accounting for 40% of vacancies in England. In the last five years, we have seen less than a 10% increase in mental health nursing staff and a continual decline in learning disability services. I understand there is an NHS England ambition for 21,000 new posts across the mental health system. This appetite for expansion—with the view that it translates to a sufficiently staffed and skilled workforce—is welcomed perhaps more so than ever, as 2.8 million people, or 5% of the population, had contact with secondary mental health, learning disability and autism services during 2020 and 2021.

As we are all aware, the workforce shortage is not limited to the NHS. The turnover rate of registered nurses in adult social care is four times higher than in the NHS, with marked regional differences. Getting the right number of staff with the right skills therefore remains a challenge and requires urgent review to maintain quality patient care. In care homes, the shortage of registered nurses has caused some providers to renounce their registration to provide nursing care, forcing some residents to find new homes. In hospitals, high staff turnover and the use of agency staff have contributed to excessive restrictions and blanket approaches to care for people with learning disabilities and autism, for example.

We have also seen an impact on growing waiting lists. In the first quarter of this year, only 61% of children and young people with eating disorders were seen within one week for urgent review—a 72% reduction from last year and falling below the national standard. I therefore welcome the focus on children and young people’s mental health teams, including the proposed approach to facilitate a much better system in schools. However, such healthcare workers will need to be included in workforce reviews to facilitate a system-wide understanding of current and projected needs and resources. We should celebrate that so many people want to become nurses and encourage them to do so by investing not only in university places but in apprenticeship schemes that enable a wide variety of people from different cultural backgrounds to enter the profession.

While workforce data is collected monthly and subject to validation, it is segregated by sector, which makes some comparisons difficult. There are also known data limitations. In social care, only half of the workforce is recorded; in general practice, sessional practice nursing is not directly comparable with the main workforce; and in the independent health sector there is no complete estimate of the total workforce, despite the fact that it provides significant NHS services.

All this necessitates an imperative call for a workforce strategy that goes beyond a five-year snapshot of the NHS. Rather, a collective effort across the health and care labour market, including community nursing and midwifery, is warranted to annually capture and forecast workforce shortages and requirements over time, with a five-year government strategic response and annual update. Without these amendments, England risks a future health and care workforce that lacks the sufficient capacity, competence and diversity that is necessary to achieve more integrated care and safely promote health and support the changing needs of the population.

[The Lord Bishop of London]

My Lords, I will speak briefly on Amendments 170, 171 and 173. As a former Chief Nursing Officer, I recognise the challenge of ensuring the right number with the right skills of those providing healthcare to meet the needs and the future needs of the population. As someone who, while the Government’s Chief Nursing Officer, was given the objective of finding 60,000 nurses, I understand that it requires a whole-systems approach. I often felt it was about science and art—the science was in the work that went on nationally but the art was in the way it was applied locally on the ground. The noble Baroness, Lady Walmsley, talked about how work on the ground is often not about intuition because that is about experience and knowledge; it is about how it is applied on the ground. I also reflect on the fact that although it was my role with all those working around me to find 60,000 nurses some years ago, we are seeking to find almost the same number today. That demonstrates the fact that we do not have a sustainable model of workforce planning and that we need to do better.

We have already heard how the Bill requires the Government to publish a report that describes the systems in place for assessing and meeting the needs of the workforce. We have already heard that that does not go far enough. In meeting workforce needs, systems are required for both planning and supply, but that does not ensure that it will happen. I believe that we need a system that has accountability, that puts into place long-term planning, and that is funded.

The Secretary of State needs to be held accountable for both workforce planning and supply, because there are some things that only the Secretary of State can do. For example, if the workforce planning systems are not co-ordinated at a national level, there is often limited ability to respond to local variations on the ground, such as those between rural and urban settings or between professions or sectors. For example, responding to local variations may require national changes, such as in training or registration.

There are also parts of the workforce planning system for which only the Secretary of State can be accountable. For example, you can assess and put in place workforce plans but unless they are funded, it is done in vain. There are also actions that are often taken at a national level by government, which can impact on workforce supply and which only the Secretary of State can resist. We have seen national policy influence recruitment and retention: for example, as we moved away from the nursing bursary, as we have seen changes in immigration policy and in the challenges faced by the medical profession around its pensions. All those impact on recruitment and retention.

The Health and Care Bill must have embedded in it accountability for workforce planning and supply sitting with the Secretary of State. This will not only ensure good supply but will prevent staff shortages, improve patient safety and the quality of care. If this is not resolved, we will see those deteriorate.

Finally, on sustainability, we have heard how planning for the workforce takes time. We have heard how long it takes to take train a doctor or a consultant or even a clinical nurse specialty. These periods of training reach over the span of a Government. We need a system that does not just respond to the needs of a Government but beyond them, to ensure that our horizons are not limited by politics but by the needs of a population. Our workforce provides not just quality care to an individual but to a community. We have heard how, if we fail to provide the right workforce, we will fail the other aspirations in the Bill.

[Lord Warner (CB)]

My Lords, I have added my name to Amendment 146 in the name of the noble Baroness, Lady Merron, but I support all the amendments in this group. Taken together and perhaps integrated a bit better, they strengthen the focus in the Bill on workforce issues and workforce planning. I also congratulate the noble Lord, Lord Stevens, on his contribution to open government.

For too long, we have been preoccupied with the funding of our health and care system and have tended to assume—I confess that as a Minister I certainly did this to some extent—that if Governments made enough money available, we would be able to acquire the staff we needed, always forgetting, I think, that health and care is a highly labour-intensive industry, possibly the most highly labour-intensive industry in our country.

We were often very good at masking the shortcomings in our planning system by historically relying on recruitment from abroad. There were doctors from Africa, India and Europe, nurses from the Philippines and elsewhere, and we had a lot of staff coming in from the EU to work in our social care sector. Brexit and our national preoccupation with limiting immigration has changed all that, and that is before we calculate the effect of Covid on health and care staff recruitment. To give your Lordships just one example, pre-Brexit, 40% of the social care staff in London came from the EU. You simply cannot make that ground up very quickly.

Today’s reality for recruiting health and care staff is that we are operating in a highly competitive national and international labour market. That situation will not change any time soon. The probabilities are that we will have to pay more for staff and give more thought to our working practices and conditions. We will have to do a much better job of planning ahead and take much more seriously the training, support and recruitment and retention of this increasingly scarce resource—people.

I suggest that Ministers—I include all of us who have been Ministers—must stop political bragging about how many new doctors and nurses a Government will produce, often without the foggiest idea of how long it will take to do so. Ministers might want to give more consideration as to whether they have the right skills in the sector in the first place, before commissioning the training of highly paid, highly skilled professionals. We have not done a very good job of looking at the extent to which many of the jobs done by doctors could be done by other professionals. Our attempt to train nurses in prescribing has been only half-hearted in using the skills that we have paid for them to develop.

19:30

The number of amendments in the Bill that focus on workforce supply and its use is considerable. It is clear from listening to this debate and looking at all these amendments that, across the Committee, there is a strong desire for the Bill to include many more provisions about measuring and assessing the adequacy of the health and care workforce and planning ahead to meet future needs. The amendments in this group make clear that this work needs to be done at both local and national level, and changes in the Bill will need to reflect that consideration. I suggest that we need to get together, across the Committee, to collect and secure the right mix of amendments on Report. The Government would do well to begin discussions with all parts of the Committee on amendments that would meet the concerns expressed today.

While I support the amendments in this group as making a big improvement on the current situation, I do not think they go far enough to deal with DHSC short-termism. The noble Lord, Lord Patel, mentioned the House of Lords Select Committee that reported in 2017. Much more should be done because, as my noble friend Lord Stevens eloquently described, we may not be able to trust any Government to keep their mind consistently on this issue. History is not terribly reassuring on that. I am not making a party-political point; across the parties, there is a danger that we lose sight of this issue when it becomes inconvenient. Even a well-intentioned Health Secretary can be subdued by his colleagues in the Cabinet—I mention no particular names or offices.

That is why I have tabled Amendment 285, which talks about establishing an office of health and care sustainability which would bring together the issues of money and workforce planning. It basically implements a recommendation from the 2017 Select Committee report and is based on the experience of the Office for Budget Responsibility. The noble Lords, Lord Patel and Lord Kakkar, have tabled a similar but slightly less detailed amendment with Amendment 286. Between now and when we reach those amendments, we need to consider whether we are confident that amending the Bill to rely on the Secretary of State doing the right thing, without some independent outside influence, is the right way forward. We want to give the Secretary of State the job, but we also want to ensure that he does it. I mention, if I dare, that the amendment proposed by that 2017 report was put to Jeremy Hunt, who did not act on it—though I am pleased to see that the sinner has repented and decided that there was perhaps some merit in having a national body to look at this kind of issue.

[Baroness Harding of Winscombe (Con)]

My Lords, I add my voice in support of Amendment 170, so ably and brilliantly introduced by the noble Baroness, Lady Brinton, my noble friend Lady Cumberlege and the noble Lord, Lord Stevens.

At Second Reading, I spoke of my personal experience along the timeline set out by the noble Lord, Lord Stevens, as the person charged with developing the 2019 people plan with said absence of numbers. I do not wish to go into more detail on the history; I would rather spend the brief time I have available talking a bit more about why I think this amendment is needed and attempting to pre-empt some of the potential objections which I suspect will come from my noble friend the Minister.

A number of people have alluded to it, but we should be under no illusions that this is the most important debate we will have on health and social care. All our fantastic, lofty ambitions for our health and care system are for naught if we do not have the people to deliver them—and we should be under no illusions that we do not have them today.

I add my voice to those of the noble Baroness, Lady Hollins, and my noble friend Lady Verma: there is undoubtedly an important point about ensuring that healthcare assistants, nurses and managers in social care are paid appropriately. We also need to face the fact that we do not have enough people working in health and care in every single role in the system.

This is not a UK-only problem. As the noble Baroness, Lady Brinton, and the noble Lord, Lord Patel, said, this is a global issue. We cannot rely on people from outside the UK alone to solve our problem; we have to solve some of this ourselves. We undoubtedly need more people, but I would argue that we also need to work differently; we need both more and different. We need to address the way we work in health and social care, which is at the heart of this Bill. We need to embrace new professions and do the forward planning to make that possible, whether that is recognising sonographers as a registered profession; pushing forward on physician associates, where we are some 10 years behind other countries in the world; or developing an approach to credentialling which enables our clinicians to have more flexible careers, as science and technology change through the course of their lives. All of these ways to work differently from the way we operate today are as important as having more people. Neither more nor different is possible unless we start by being honest about the size of the problem, which is why Amendment 170 is so important.

I believe there are two substantial disincentives for this amendment being accepted. A number of your Lordships have alluded to the first one: anyone running a large people-based organisation is always tempted to focus on the urgent today and not invest in training and development for the future. It is just too tempting for the NHS, as well as the Secretary of State and undoubtedly the Treasury, to want to retain the flexibility to focus on the short term and raid the training budget for the future. Any one of us who has run any organisation knows that that is a human temptation. This does not make them bad people and it is not party political; it is just the reality of running a large organisation. That is why legislating to force transparency is so important.

The second major disincentive relates to a view that I suspect has been held in the Treasury for the best part of 20 years and which is counter to most economics. It is a belief that the way to control workforce costs in the NHS is to constrain the supply. I am not a brilliant economist, but most economics is the other way round: the way to reduce the cost is to increase supply. I have no doubt that it is quite a strongly held view in Her Majesty’s Treasury that the way we control workforce costs in the NHS is by constraining the supply. The reality is that that market mechanism is completely failing.

You have to look only at the costs the NHS is paying for locum, agency and bank staff. A recent Getting It Right First Time report, published last autumn, stated that 27% of workforce costs in emergency departments are for locum, bank or agency staff, which tells you that they are not properly staffed. If you are a young junior doctor in your third year in your career and you work as a locum for one week, you will earn £5,800, but if you work for the NHS for one week, you will earn £3,300. We should not be surprised that junior doctors with large student debts want to work as locums, yet we also know that that materially reduces their fulfilment and the quality of the care they deliver. The economic incentives are not working, despite the deeply held view that if we constrain the supply the NHS will somehow magically transform itself.

That is why we need to put this in the Bill. We do need more people, but we also need to drive incentives for transformation, and we will do that only if we face into the challenge. Those working in higher education can plan only if we give them a signal, and transformation teams can challenge the way we work only if we are honest about the need for that transformation.

One final reason I really urge my noble friend the Minister to accept this amendment is that our wonderful people, who have worked so hard in health and care over the last two years, need hope—and we can send them the strongest signal of hope that we really hear them, that we really understand the people challenges that they face, by putting this in the Bill.

[Lord Kakkar (CB)]

My Lords, I support Amendment 173 in the name of the noble Baroness, Lady Merron, to which I have added my name, and I broadly support the amendments in this group.

Many noble Lords have identified the question of workforce as the most important single issue that the Bill has to address. Without effective workforce planning, the NHS, as we have heard—and, indeed, the care system—is in peril. Previously, our country and the National Health Service have depended on overseas doctors and nurses to come and fill large numbers. That has been the principal basis of workforce planning for many years—indeed, decades. But that is no longer a viable option. The World Health Organization has estimated that, globally, there will be a shortage of some 18 million healthcare professionals by 2030. That will be a particularly difficult challenge across the globe, and it means that we can no longer depend on importing healthcare professionals to meet our ever-increasing needs. This is well recognised by all who are responsible for the delivery of healthcare and, indeed, by Her Majesty’s Government.

The question is: how can we dependably plan for the future? Unfortunately, it has to be accepted—indeed, it has been accepted in this debate—that planning to date has failed miserably. That is not a malicious failure, but it is a reality, and one that we can no longer tolerate. That is why amendments in this group that deal with the requirement for independent planning and reporting on a regular basis to provide the basis for determination and projecting future health and care workforce needs, are appropriate—indeed, essential.

My noble friend Lord Warner raised a separate issue about a group of amendments that will come later in the Committee’s consideration, which propose the establishment of an independent office for health and care sustainability. This is a recommendation of your Lordships’ ad hoc Committee on the Long-term Sustainability of the NHS and adult social care, chaired by my noble friend Lord Patel. It is this emphasis on ensuring that there is independent, long-term planning and projection that can provide the fundamental and accurate foundations for workforce planning. We need a broader assessment of what the demand for healthcare will be, and that demand is complex and driven by not only demographic change but changes in the way that we practise, changes in expectations, adoption of technology and changes in working practices. That all needs to be brought together to provide the foundations for planning. Without this emphasis and this obligation secured in the Bill, the NHS and adult social care in our country will not be sustainable.

I very much urge the Minister, in considering this group of amendments, to help your Lordships understand why it would be wrong to secure this emphasis in the Bill. If Her Majesty’s Government are unable to secure this emphasis in the Bill, how can they reassure noble Lords that the failures in planning that have dogged NHS performance with regard to workforce over so many years will not be repeated in the future?

[Baroness Finlay of Llandaff (CB)]

My Lords, to state the obvious, without a workforce plan we cannot have a workforce. Amendment 170 certainly seems to get to the heart of the issue, which was so well introduced by the noble Baroness, Lady Cumberlege, and my noble friend Lord Stevens.

19:45

Others have spoken about the medical and nursing workforce, and therefore I will not repeat those comments. I want to put a plea in for the allied health professionals, because many of them work outside the NHS, so, while we talk about NHS planning, we will undersupply chronically if we do not recognise where else they work. Some 25% of physiotherapists work with other providers such as the military, prisons, hospices and occupational health services. Some 50% of podiatrists work outside the NHS, and speech and language therapists often work with people in education as well as in the criminal justice system, social enterprises, and in the voluntary and third sectors. That is why I tabled Amendment 172.

In Amendment 214, I have tried to address the problem that Clause 79 abolishes local education and training boards. As the noble Baroness, Lady Harding, said, without access to education, time for CPD, funding of courses and backfilling, we will not get the rapid movement of our staff into different areas as the provision changes. Such local assessment could then feed into national planning processes, as outlined in Amendment 170.

I will give a few bits of data to support Amendment 174 on social care, to which I added my name. Skills for Care found that 24% of the adult social care workforce are employed on zero-hours contracts. That means that they cannot get mortgages, et cetera. Care workers represented the highest proportion of workers on zero-hours contracts, at 35%. Those on slightly higher grades are more likely to have full contracts. In the community, a Community Integrated Care study found a gap of £7,000 between equivalent roles in social care and the NHS. With that large gap, it is hardly surprising that social care does not retain its staff. There is no joined-up recruitment yet, and there is no local or national training planning that covers health and social care.

This group of amendments is absolutely essential, and it would be a dereliction of our duty to ignore the messages from this debate.

House resumed. Committee to begin again not before 8.30 pm.

Train Driving Licences and Certificates (Amendment) Regulations 2022

Monday 24th January 2022 Lords Chamber

Motion to Approve

19:49

Moved by

[Baroness Vere of Norbiton]

That the draft Regulations laid before the House on 2 December 2021 be approved.

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Vere of Norbiton) (Con)]

My Lords, I beg to move that these draft regulations be approved. The regulations will be made under the powers conferred by the Channel Tunnel Act 1987. They will make necessary amendments to domestic train driver licensing legislation to enable the implementation of a bilateral agreement, which has now been signed by both the UK and France, on the mutual recognition of British and European train driving licences in the Channel Tunnel zone.

This will continue to support the smooth operation of Channel Tunnel traffic when the current temporary arrangements expire on 31 January 2022. It will also provide long-term certainty, clarity and confidence to cross-border operators, current and prospective, with regard to the future train driver licensing framework for the Channel Tunnel. Although the regulations will apply to England, Scotland and Wales, the main operative provisions will in practice apply only to the Channel Tunnel zone. The regulations are subject to the affirmative procedure as set out in the Channel Tunnel Act and Schedule 8 to the European Union (Withdrawal) Act 2018.

I will now provide some brief background information about this legislation. The regulations will amend the Train Driving Licences and Certificates Regulations 2010, which set out the rules on the licensing and certifying of train drivers operating on the mainline rail system in Great Britain. The 2010 regulations transposed into domestic law an EU directive on the certification of train drivers operating locomotives and trains on the railway system in member states of the European Union. As part of the preparations for the UK leaving the EU, the 2010 regulations were amended by statutory instruments in 2019 and 2020. The 2019 regulations corrected inoperabilities arising from the UK’s departure from the EU, and established a transitional period enabling the continued recognition of European train driving licences in Great Britain for a period of two years from exit day—-two years from 31 January 2020. The 2020 regulations made further amendments to the 2010 regulations by extending the recognition of the provisions so that European train driving licences issued between exit day and 31 January 2022 would also be valid in Great Britain until that date.

Following the end of this transitional period— 31 January 2022—the recognition of European train driving licences in Great Britain as a whole will end. The regulations under consideration today will provide for the continued recognition of European train driving licences in the UK half of the Channel Tunnel and cross-border area when this transitional period expires. This will support the recognition of European and British train driving licences in the Channel Tunnel zone on a fully reciprocal basis under the related UK-France bilateral agreement. These regulations will therefore have a positive impact on cross-border operators and drivers, by providing long-term certainty on the train driver licensing requirements for the Channel Tunnel zone, which on the UK side is up to Ashford International station for passenger services and Dollands Moor station for freight services. On the French side, the regulations apply to Calais-Fréthun for passenger trains and Fréthun freight yard for freight services. These arrangements will reduce the administrative burdens on operators and the drivers whom they employ, by enabling French and British drivers to operate within the Channel Tunnel zone without the need to hold two separate licences.

The territorial scope of these regulations and the agreement that they implement have been chosen in the interests of reciprocity and equivalence in the extent of recognition in the UK and French territories. Train driver licensing policy is a matter of exclusive EU competence, and the European Commission’s view is that, under EU law, France can enter into a bilateral agreement with the UK on train driving licences in relation only to the tunnel itself and the immediate cross-border area beyond it, which means as far as the first station in each territory. These regulations, therefore, provide for the recognition of European train driving licences only up to Dollands Moor and Ashford International. These are the equivalent cross-border stations in the UK to Calais-Fréthun and Fréthun freight yard in France.

The regulations, and by extension the agreement that they will implement, are fully compatible with the Government’s fundamental red lines in the Channel Tunnel negotiations with France, which are to support the continuation of cross-border services while conferring no role for the EU courts or the European rail agency in UK territory, and avoiding dynamic alignment with EU law. Furthermore, information-sharing provisions are also included in the regulations, to give effect to requirements in the bilateral agreement. Under these requirements the Office of Rail and Road, the ORR, will be able to share information with the equivalent French authorities—for example, in relation to any doubts about the validity of a licence or compliance with licensing requirements on the part of either the holder of a European train driving licence operating in the Channel Tunnel zone in Great Britain, or the holder of a British train driving licence operating in the Channel Tunnel zone in France.

The bilateral agreement will impose equivalent obligations on the French licensing authority—the EPSF—enabling information to be shared on a reciprocal basis. These regulations will also maintain the requirement for train drivers to hold a complementary certificate alongside their licence. These certificates are issued by operators and confirm a train driver’s competence and knowledge of the route, rolling stock and the infrastructure on which they are operating. Again, the agreement will mean that British and French train drivers will be able to use one complementary certificate to drive throughout the entire Channel Tunnel zone, as opposed to needing complementary certificates issued in both France and Britain. To that end, the regulations amend the scope of recognition of complementary certificates issued under the 2010 regulations to include the area up to Calais-Fréthun in France.

These regulations will reduce administrative burdens on cross-border operators and enable them to plan their businesses into the future with confidence. I commend the regulations to the House.

Amendment to the Motion

Moved by

[Lord Berkeley]

At the end insert “but that this House regrets that the regulations, while providing interoperability for train drivers between Ashford and Calais, do not extend to full European Union and United Kingdom interoperability in a similar manner to drivers of Heavy Good Vehicles.”

[Lord Berkeley (Lab)]

My Lords, I suppose that I could have added airline pilots to the wording of my amendment, but I did not. First, I want to make it quite clear that I welcome these regulations 100%. I know that Ministers and officials have worked incredibly hard to get them ready and agreed by the deadline, which, I think, is in about a week’s time. If these regulations do not get through by the end of this month, trains will stop—they will not run. It is therefore very important that the regulations go ahead; that is what I have been told. The noble Baroness gave us a pretty good introduction to the purpose and scope of the regulations but I think that she will agree that it is a pretty complex matter, and it is clear that they are all necessary because of our leaving the European Union.

The noble Baroness referred to the Train Driving Licences and Certificates Regulations 2010. Even the Explanatory Memorandum to that legislation was, I think, 22 pages long. What is interesting about it is that more than 10 years ago the UK, and the rest of Europe, signed up to a common driver’s licence for the whole of the European Union. It had a purpose: to

“create a more flexible labour market for train drivers (i.e. make it easier for train drivers to move from one Member State to another … introduce common standards of driver and train crew competence … make it easier for cross-border rail services to operate; and increase public confidence in the rail system”.

I find it extraordinary that the Government have decided that these objectives are not a good idea. Presumably they do not want to encourage public confidence or more cross-border rail services. I do not know. Perhaps the noble Baroness can answer those questions, but it is a bit odd. It certainly does not apply, as I mentioned, to trucks and air services.

20:00

But what happens beyond Ashford and Calais is not clear from the draft regulations and the noble Baroness’s explanation. In other words, will we now see that all the Eurostar trains stop at Ashford and Calais? That will not do the economic timetable much good. Will all freight trains have to stop at Dollands Moor and Calais? Many of them do anyway, but this is to change drivers. In other words, if you have one driver, as many services did—certainly before Covid—driving a train from St Pancras International to Brussels, for example, how many drivers and stops does it need? How many licences do those drivers need? Do you need one licence just to get from London to Dollands Moor, another to get through the tunnel, and the European licence to get beyond it? The same goes for freight. The noble Baroness will not be able to provide this now, but it would be interesting to get a bit more evidence of what the French legislation is on a reciprocal basis.

This is a necessary piece of legislation to get over the problem that has been with us for two years, as the noble Baroness said, but I am worried about whether, now that this will be done, the Government will pursue a wider EU-UK driver licencing arrangement that will enable one licence to provide a more flexible labour market, common standards of competences, easier cross-border services and increased public confidence. There are plans—although they all depend on Covid—for more international services, day services, sleepers, low-cost competition for Eurostar, more freight and different operators. They would all benefit from a much easier driver licence regime—as well as, obviously, encouraging net-zero carbon for rail, which I know Ministers are very keen on.

I know that this next stage that I have just proposed will take a year or two to do, but it would be good to hear that the Government think it worth while. If only we had stuck with the European train drivers’ licence, we would not need to do all this—but the problem, as I understood it from the then Secretary of State, was that we could not do that because the licence still had the word “Europe” in it, and that was anathema. I hope that is not true. There is now an opportunity to go forward in a positive and, I hope, cost-effective way. I beg to move.

[Baroness Randerson (LD)]

I thank the Minister for her clear explanation and the noble Lord, Lord Berkeley, for giving us this opportunity to discuss an important issue. I also place on record the excellence of the Library briefing that we received on this, which is very helpful.

This SI is an example of the complex contortions that we are forced into to recreate—or recreate in part—the system that existed before we left the EU. It is a pale imitation. So much ministerial and Civil Service time is spent on the minutiae of this and dozens of similar SIs, when it would be so much better if Ministers could concentrate on the big infrastructure and climate change challenges that we face—or even just on catching up with the backlog of maritime legislation.

The Minister has answered my first question, of whether the agreement has now been signed. I am very pleased to hear that is the case. Can she confirm that, now that both countries have signed, there is no chance of a legislative hiatus, a problem that was facing us? It is regrettable, to say the least, that Parliament having passed the required amendments in 2019 and 2020, as so often, the further steps required are being dealt with at the last moment. I gather that the operators concerned had already obtained European TDLs for their drivers so that they could continue to drive trains through the Channel Tunnel if the signatures were not forthcoming. Once again, a business community is at the sharp end and incurring extra costs.

As the regret amendment tabled by the noble Lord, Lord Berkeley, spells out, this is a very limited solution, far from the smooth international trade and travel that we used to enjoy. It is ironic that it was in the heyday of Thatcherism that we celebrated the Channel Tunnel joining Britain and mainland Europe to make international trade and travel so much easier.

As the noble Lord, Lord Berkeley, has asked about the relevance of Ashford and Calais and whether you have one driver or two, I will not repeat the detail of those questions, but they are at the top of my mind. Can the Minister explain what the operational answer will be to this in future? Will trains have two drivers so that they can swap over once they have gone through the tunnel in whichever direction they are going, or will they now all stop at Calais and Ashford, which would involve a significant adjustment to the timetables? During Covid, trains have not stopped there on a regular basis.

The Library briefing also raises some important questions in relation to the rights of HGV drivers. The phrasing of the regret amendment by the noble Lord, Lord Berkeley, gives me the opportunity to ask a useful question on the issue for UK-based HGV drivers working for EU companies. Their CPC cards may not be recognised in EU countries. Is this an issue? Can the Minister explain the situation? Also, UK operators wanting to work within the EU must now separately license their business, register their vehicles and trailers, and comply with new and additional customs procedures.

The Minister knows that, in the past, I have asked about the changes to UK rules on testing for drivers of a range of commercial and goods vehicles. There are now fewer steps towards gaining a UK licence, so I take this opportunity to ask the Minister: where do the changes in licences place an HGV driver qualified according to the Government’s new, simpler rules if they have an accident or are picked up by the police for a traffic violation within the EU, for instance? Will they still be deemed fully qualified and insured?

May I slip in a final question about the recent queues at Dover? Drivers are now reporting that it takes between 10 and 20 minutes for a lorry to get through and have the paperwork checked. The CEO of the Port of Dover has expressed additional concern about the new checks that will come in in about six months’ time. Can the Minister assure us that the procedures and systems are entirely ready for that? Have the Government had discussions with opposite numbers in France and the EU about ensuring that this process is as smooth as possible?

[Lord Liddle (Lab)]

My Lords, I rise very briefly to say how much I support what my noble friend Lord Berkeley and the noble Baroness, Lady Randerson, said. They have raised lots of detailed issues, which I hope we will get a clear answer to at the end of the debate. I just want to add one thing. What is the Government’s vision for international rail travel of which Britain is a part? Is that the way that they are thinking about it, or are they thinking, “Oh well, we can’t do anything because it involves ECJ jurisdiction”, or something like that? Where is the vision? There is a real opportunity here: if we are serious about reducing air travel and all the damage it does to the climate, we have to be in favour of more people going on holiday or on business on the continent by rail. The opportunity is growing. I was lucky enough to be brought up as a railway clerk’s son and, every year, we would use our free passes to go from Carlisle to the continent.

[Lord Berkeley (Lab)]

I have often wondered about that. First class too?

[Lord Liddle (Lab)]

Yes, first class, too. It gave me a great taste for it, when we arrived at Basel and saw the great age of international rail transport, which was then gradually coming to an end as flying was growing. But it is coming back. Last year—or two years ago, before all the wretched Covid—we went on the wonderful Austrian sleepers to bring us back to Britain, except they could not bring us back to Britain, of course; they could bring us only to Cologne and then we had to get a train from there. But why should that not be part of the vision? Do the Government have this European vision? That is what we need and it is where the future lies if we are serious about a modal switch in medium-distance travel.

[Viscount Stansgate (Lab)]

My Lords, I associate myself with the comments made by my noble friend Lord Liddle, and I am grateful to my noble friend Lord Berkeley for having moved his regret amendment.

When I listened to the noble Baroness, Lady Randerson, it brought to my mind that vision of the former Prime Minister Mrs Thatcher meeting President Mitterrand when they had the two Eurostars coming nose to nose. I believe that they had to alter the software of the trains to enable that to happen. It was an era of great promise for future travel in Europe and, although I fully understand that the regulations that the Minister has ably moved tonight are necessary and welcome, it is rather depressing to think that we are being restricted.

20:15

I would like to put very simply the point already made by others: can the Minister tell us on what basis trains that exist already and go from London to Paris are taking place? There were other trains that have now been stopped because of Covid that used to go direct from London to Marseilles without any difficulty—a remarkable journey. There are those who would like to have trains that go from stations in Britain direct to Frankfurt and so on, and there is already one from London to Amsterdam. On what basis do these trains now operate if the regulations that we are discussing deal only with this Channel Tunnel envelope from Ashford to Calais? I am not quite sure on what basis the existing trains run, never mind future ones, and would be very grateful if she could address that in her reply.

[Lord Rosser (Lab)]

My Lords, I will try to be brief otherwise the Minister will not have a chance to respond. I thank her for her introductory comments and my noble friend Lord Berkeley for his amendment. In line with what the noble Baroness, Lady Randerson, said, I too appreciated the Library briefing. Before I go any further, can I express the sincere hope that the noble Baroness, Lady Vere, will not be following the latest ministerial fashion and departing the Chamber earlier than anticipated.

The EU stopped recognising British-issued train driving licences on 1 January 2021, and European-issued train driving licences will no longer be valid in Great Britain after the end of this month apart from within the Channel Tunnel zone once the regulations are in force. The Government have stated in the Explanatory Memorandum that operators have already obtained European train driving licences

“for their drivers to ensure they are able to continue driving their trains”

through the Channel Tunnel because of how late these regulations have been brought before us. What has been the cost to train operators of having to obtain those European train driving licences for their drivers? Do their European train driving licences enable British drivers to drive throughout the EU, and for how long are these licences now valid?

The Government have confirmed that a cross-border driver holding a European train driving licence would also need to hold a British train driving licence to drive beyond the Channel Tunnel zone—for example, up to St Pancras International station. Drivers who are driving trains in Great Britain using an EU-issued train driving licence will need to apply for a British train driving licence from the ORR before the end of this month, and current holders will be considered as new applicants. Why will current holders be considered as new applicants?

I come back finally to the questions that virtually everybody else has asked. I think I noticed the Minister say that under EU provisions it would not have been possible for us to agree with France to be able to drive a train to Paris. I think she was saying that it had to be confined to the Channel Tunnel zone area. If I have misunderstood that, I am sure I will be corrected. Can the Government confirm that under the common European regime we had for certifying and licensing train drivers, British drivers could drive a Eurostar passenger train to Paris or Brussels, and indeed into Germany, and a French or Belgian driver drive a Eurostar train to St Pancras? The bilateral agreement with France would appear to apply only to the Channel Tunnel zone. Does that mean that British train drivers will not be able to drive a Eurostar passenger train or a freight train from Calais to Paris or Brussels or beyond and a French or Belgian driver drive a train to St Pancras? The answer may be, as others have suggested, that another licence is needed to do that. No doubt that is what the Minister will say in reply if that is the case. I can say only that, if that is correct, this would hardly appear to represent progress, bearing in mind what we previously had.

[Baroness Vere of Norbiton (Con)]

I thank all noble Lords who have taken part in this short debate and the noble Lord, Lord Berkeley, for enabling us to discuss it in slightly more detail than perhaps we might have done otherwise. I hope that the noble Lord, Lord Rosser, was sincere in not wishing me to depart. If he was not, it is not going to be his lucky day.

[Lord Rosser (Lab)]

I was sincere.

[Baroness Vere of Norbiton (Con)]

I turn first to the issues raised by the noble Lord, Lord Berkeley. I can see where he is coming from. Noble Lords will recall from when we discussed operator licensing that there is this Channel Tunnel zone, the bit that France was allowed to reach an agreement with the UK over. It is the same for train driving licences as it was for other elements that we have discussed in the past.

The noble Lord, Lord Berkeley, asked why we cannot go further. We have been very clear on this. The European Commission knows exactly what its rights are, and they are quite extensive. It has said that France cannot negotiate with the UK to go further. Indeed, the European Commission did not convey any interest in including train driving licences in the trade and co-operation agreement. In any event, if mutual agreement had been sought at this level, it would likely have been conditional on dynamic alignment of train driving licensing regulations and possibly a continuing role for the Court of Justice of the European Union. That would have broken the UK’s red lines during negotiation.

All is not lost, however, and it is potentially a little more positive than some noble Lords fear. There will not be one train and two drivers; it is more the case that there will be one driver and two licences. Drivers for many of the operators already have both the European and GB licences. For the Channel Tunnel zone, they can also have the certificate of competence, or whatever the certification is called. They just need a single one of those, but if you are driving beyond that you need the relevant certificate covering the rolling stock and the infrastructure of whichever routes you are driving on; that is normal.

This does not seem to have held back the people who run the trains. I have some stats that I will not read out, but it strikes me that drivers for all the major operators have stepped up and got an additional licence where needed. Train driving licences issued by the ORR are free; there is no cost to the applicant, so it does not really matter if they are new applicants. It should also be noted that the existing training has not changed since we left the EU, so somebody trained in the EU has received the right training to get a GB licence.

We expect there to be a system in which people will simply have two licences. We do not see a future in which there would be a single licence. Do I think it will be a massive hurdle to the future of a fantastic vision for international rail travel? No, I do not. I am just pleased that the noble Lord, Lord Liddle, no longer has his companion pass, sucking up taxpayers’ funds in first class going to Europe—but I am sure he enjoyed it. I think all noble Lords will agree that travelling by train in Europe is a pleasurable experience, but one often has to change trains because the trains do not automatically go to where you are going—so you need another driver to get another train to go to a different place. Of course, we want the trains to be as good as possible. That is why Eurostar goes to Amsterdam, and obviously we continue to have Eurostar services into London and through to Paris.

I do not know that there is really much more I can say. The system, operators and drivers have managed to cope, the trains are still running and we expect them to run in future. There will be no legislative hiatus, as the noble Baroness, Lady Randerson, feared. On the timeline of the regulations, the Government have been negotiating a number of elements with the French Government—the train driving licence element, the operator licensing element and the safety issues—and we did not get the train driver licensing element signed until 22 December because it had to be cleared by the European Commission. Together with the technical and complicated nature of these negotiations, this meant that January was the earliest these regulations could be debated. As I said, the agreement has been signed and therefore there should be no hiatus at all.

The noble Lord, Lord Rosser, asked me a couple of curveballs about how long a licence is valid for, and I do not know that answer, but I shall of course write, as I shall on other issues that I have not been able to cover.

I come briefly to the issue that the noble Baroness, Lady Randerson, raised about HGV drivers working in the EU. She is right to pay tribute to the House of Lords Library. I read that in the Library briefing and thought, “Oh, I didn’t realise that.” It is true. The current requirements for obtaining drivers’ certificates of professional competence in the EU and the UK are the same. However, the EU has decided not to recognise the UK qualifications post Brexit for use by drivers based in the EU working for companies established in the EU. Of course, it will recognise a UK driver working in Europe, from a cabotage perspective—all those things remain the same—but the EU has taken a slightly different tack. Clearly, we think that we have taken the better tack, but who are we to argue?

As noble Lords will know, we are looking at the driver certificate of professional competence to see how well it works for the UK. I am not convinced that stating that you must have 35 hours’ training is useful: training in what? Beekeeping? We need to make sure that HGV drivers are studying what is useful from a continuing professional development perspective. So that is the situation for a DCPC in the EU.

Operators can register in the EU and get an EU operator licence; otherwise, if they have a UK operator licence, they are restricted by the cabotage arrangements that we have in place. That has not changed. I am not aware of any change to UK HGV testing that has had an impact on C+E drivers in France—that would be for HGV lorries. They are still able to drive in France.

The noble Baroness then went slightly off-piste by mentioning the queues at Dover. I appreciate that she knows she went off-piste, and I know that she was very keen to ask me a Private Notice Question today on it. I will write with more information on that. For the time being, I commend the regulations.

[Lord Rosser (Lab)]

May I just confirm that, after the regulations come into effect, after the end of this month, a British driver driving a Eurostar train from London to Paris and to Brussels will require two licences to make that journey?

[Baroness Vere of Norbiton (Con)]

Correct, but, as I mentioned, the training is the same on both sides and there should be no barrier to the driver getting that second licence.

[Lord Berkeley (Lab)]

My Lords, I am very grateful to all noble Lords who have spoken in this short debate. I am also grateful to the Minister for her answers, which have cleared up a lot of our questions, and for the regularity with which she writes letters to speakers after these debates. They are incredibly helpful—I may not agree with them, but they are really helpful. I thank her for that, and I am sure we will get a good one today—or it may now be tomorrow.

It was really good to hear comments from several noble Lords about the need for a vision. That is really important at the moment for the railways, particularly cross-channel. We had a debate about a year ago about whether Eurostar would survive during Covid and what the Government were going to do about that. It is important that the Government facilitate, encourage and do whatever they can to get as many new services through the tunnel as possible to whatever destinations make commercial sense.

I am sure we will return to this, but it was interesting to hear the Minister’s comments at the end in response to the noble Baroness, Lady Randerson, about HGVs. Everyone thought that, two years after Brexit, it would all be sorted out. It may be that the railway has got there before the roads, for once. I beg leave to withdraw my amendment.

Amendment to the Motion withdrawn.

Motion agreed.

Health and Care Bill

Lords Hansard - Part 2 & Committee stage
Monday 24th January 2022 Lords Chamber

Committee (5th Day) (Continued)

20:31

Debate on Amendment 83 resumed.

[Lord Bradley (Lab)]

My Lords, I shall speak on this group of amendments, and I declare my health and higher education interests, as in the register—and, specifically, my honorary fellowship of the Royal College of Speech and Language Therapists. We have had some excellent speeches, and some forensic analysis, of these amendments, which are so important to ensuring that the workforce is at the centre of the reform programme under the Bill. I cannot match those contributions, so I do not intend to.

However, I would still like to support Amendments 172 and 214, in the name of the noble Baroness, Lady Finlay of Llandaff, to which I have added my name. The noble Baroness spoke eloquently to those amendments, recognising, among other things, the crucial role that allied health professionals play in the delivery of healthcare. It is worth emphasising that allied health professionals are the third largest section of the health workforce, supporting people of all ages with a range of diagnostic and therapeutic interventions both within and beyond health and social care settings. Their contribution can often be overlooked in a narrative that frequently focuses only on the role of doctors and nurses—however important those clearly are.

As we have heard, Amendments 172 and 214 are designed to address those issues. I shall comment particularly on the role of the speech and language therapy workforce; I am grateful to the Royal College of Speech and Language Therapists for its briefing on this matter. There are around 19,500 speech and language therapists in the UK, many of whom have a portfolio career and work part-time. It is estimated that about two-thirds spend at least some of their working time in the National Health Service. Those not working in, or employed by, the NHS may work for local authorities, in schools, in the justice sector—in which I have a particular interest—with speech and language therapists becoming a key part of criminal justice liaison and diversion teams, in the third sector and in independent practice.

However, as already noted, these settings are not represented in current workforce planning. This risks not enough speech and language therapists being trained to meet current and future demand. In turn, this risks people of all ages with communication and swallowing needs not being able to access the speech and language therapy they and their families desperately require. Crucially, there is already a significant backlog identified, comprising unmet need and increased demand—that increased demand exacerbated by the pandemic.

From initial discussions with speech and language therapy services, it is estimated that a minimum increase of 15% is required in this skilled workforce, whereas in recent years the profession has grown by only 1.7% net per year. Amendment 172 would mean that the duty to report by the Secretary of State would include the whole health and care workforce, not only those directly employed by the NHS in England, and Amendment 214 would ensure that workforce planning takes into account the experience and expertise of the whole social care workforce by establishing a workforce board in every ICB area.

For speech and language therapists, establishing an advisory workforce mechanism would help to address current weaknesses of workforce planning in the country. In turn, this would support better service planning and delivery, ensuring that there are sufficient speech and language therapists to meet current and future patient need. I strongly support these amendments, which recognise the value of allied health professionals across many services, who will play a crucial role in the integration of care, which is the purpose of this Bill.

Since the debate has picked up Amendment 285 on the proposal to establish an office of health and care sustainability, I add my voice in support. I was a member of the ad hoc Select Committee on the Long-term Sustainability of the NHS, so ably chaired by the noble Lord, Lord Patel. It was one of that report’s recommendations, and our key recommendation, and we will pick up that debate on another group. In the light of the comments already made on that issue, I recommend our recommendation to this Committee as we develop our thoughts on this Bill.

I hope that the Minister will give a very positive response to ensuring that the role of our allied health professionals is embedded in the plans that will come forward, crucially, on the workforce in our health and care system.

[Baroness Whitaker (Lab)]

I add my support for Amendments 172 and 214, speaking as a vice-chair of the All-Party Parliamentary Group on Speech and Language Difficulties and a patron of the British Stammering Association. These amendments, which again have the support of the Royal College of Speech and Language Therapists, would do much to safeguard the position of that now rare commodity— speech and language therapists. As has been said by both noble Lords who tabled the amendment, they do not all work in the NHS.

The view of the Department of Health and Social Care is that speech and language therapists should be added to the shortage occupation list, because the profession is facing a range of pressures, including increasing demand in mental health in particular. The NHS long-term plan identified speech and language therapy as a profession in short supply. The need for those therapists must be taken account of in workforce planning.

Similarly, Amendment 214 provides an incentive to ensure that there are enough speech and language therapists to meet current and future demand, which is just not the case at present. I remind noble Lords that meeting communication needs, as well as ensuring the ability to swallow safely—both at risk from a wide range of conditions—are an essential component of well-being, and often safety itself. I hope that the Government will look favourably on these amendments.

[Baroness Neuberger (CB)]

My Lords, most of what needs to be said about this group of amendments, which I support, has been said, and said brilliantly well—it has been a wonderful debate. However, I would like to make one more key point. I chair University College London Hospitals Foundation NHS Trust and Whittington Health NHS Trust. In the last two years, during Covid, much of my time has been spent not in your Lordships’ House but walking around both of those institutions, saying thank you and listening to my exhausted staff.

One of the key reasons for putting the issue of reporting to Parliament on workforce planning into the Bill is that our staff—not just their organisations but the individuals themselves—want it to be there. They know what the issues are; they live with the shortages and they know that it has not been thought through. My noble friend Lord Stevens made that very clear: it has not been thought through. If they are not taking early retirement, as some are, they are living with the consequences. We could and should do so much better for them, and for the long term—and our staff know that. For their sake, if for no other, we must put this on the face of the Bill.

[Baroness Bennett of Manor Castle (GP)]

My Lords, this has been an extremely rich and vital debate on crucial amendments, albeit conducted in two parts. I will briefly offer the Green group’s support for all of these amendments. I aim not to repeat anything that has been said but to offer some uniquely Green perspectives on this set of amendments.

I will take them in two groups, starting with Amendments 170 and 173 in the names of the noble Baronesses, Lady Cumberlege and Lady Merron. These are particularly important because they very clearly and explicitly lay out the responsibility of the Secretary of State. When I tabled some amendments last week on the Secretary of State’s duty to provide, they met with something of a frosty reception in some quarters—but it is clear from all sides of your Lordships’ House that it has to be the responsibility of the Secretary of State to ensure that there is a plan for the workforce. I stress that that is coming from all sides of your Lordships’ House.

It is worth referring to the King’s Fund briefing, which I do not think anyone has mentioned yet. I will quote one sentence:

“The measures in the Bill to address chronic staff shortages remain weak.”


That is what a respected outside observer says. Your Lordships’ House is seeking to plug that gap. The noble Lord, Lord Lea, suggested that this was all terribly difficult, and that is undoubtedly true, but a lot of people have been thinking about this for a very long time. I was at a briefing for the Royal College of Physicians before the pandemic, in person, with no masks in sight. It was more than two years ago and they were talking about the need for workforce planning, saying, “We know how this should be”. Indeed, on the Royal College of Physicians’ website, more than four score organisations are listed as backing these amendments for workforce planning. So the support is very much there.

That focuses particularly on the medical side of things, but I will refer also to the Age UK briefing. We have had some very valuable contributions about care workers from the noble Baronesses, Lady Verma and Lady Hollins, but Age UK considers that we need to look at this much more broadly. It is calling for a robust accreditation scheme for care workers working in CQC-accredited facilities. We need a different system.

I think it was the noble Baroness, Lady Hollins, who talked about how this is a low-pay sector, but we also need to talk about this differently and recognise that it is also a high-skill sector. I think of some of the care workers whom I have met: care workers who cared for doubly incontinent, aggressive, advanced Alzheimer’s patients, and who had done so for decades. Anyone who claims that these are not people with amazing levels of skill really is denying an obvious fact. We need to acknowledge the skills of care workers and to make sure that they are appropriately remunerated.

I want to pick up another, perhaps specifically Green Party, point that no one else has picked up on. I noted that the chief executive of NHS England was recently forced into a new deal with private hospitals, which she said did not provide good value for money. The deal provides more care in private hospitals to help recovery from the Covid pandemic; it sees the Government going against NHS England and deliberately pushing up the role of the market in healthcare. For those who deny that this is happening, I am afraid this is very clear evidence of it.

I turn to a report of the Centre for Health and the Public Interest, which notes that the great majority of private hospitals rely entirely on NHS staff contributing outside their NHS hours on a self-employed basis. We are talking here about doctors and associated health professionals such as anaesthetists and other clinicians. The NHS paid for their training, pays for their pensions and covers their insurance, yet we talk about private hospitals “helping the NHS”. Listening to this debate, I think that perhaps as part of the amendments on Report, we need to think in the context of workforce planning about the financial contribution to be made by the private sector to the cost of training to adequately recompense the NHS for what the private sector gets out of it to make profits.

20:45

I come now to a second group of amendments—Amendments 86 and 214—which look at local responsibilities. I want to make the point that in many cases the needs are local, and that if you train up local people who are already embedded in the community, they are very likely to stay in the community. That is why it is crucial that we have local plans and training pathways, so that a care worker who might want to take those care skills and then become a nurse and maybe a doctor over a lifetime of learning and education can bring all those different skills together, stay in one community and bring all those skills to that community.

I think it was in an earlier debate that the noble Baroness, Lady Brinton, referred to the problem of the shortage of dentists. We have just had the Great British Oral Health Report, and one stat from that which really struck me was that 22% of people in the north-west have not been able to register for a routine dental appointment. This is just the kind of supply problem we are seeing all the time. In the Morecambe Bay area, there are only 49 dentists for 100,000 people, which is obviously grossly inadequate.

I will make one final point, which picks up points made in particular by the noble Lord, Lord Kakkar, and the noble Baroness, Lady Whitaker, about the global aspect of this. There was a recent report from the International Centre on Nurse Migration, working with the International Council of Nurses, which stated that there is now a global shortfall of almost 6 million nurses. On top of that, it is estimated that 13 million more nurses will be needed over the next decade. Currently, the whole workforce is 28 million. This picks up a point that the noble Lord, Lord Patel, raised about pay erosion for all medical professionals, but it is particularly evident with nurses. The noble Lord, Lord Lea, again said that it was difficult to plan. We have to acknowledge that any medical professional in the UK can potentially take those skills and find a ready place to use them all around the globe. We know that many British doctors have gone to Canada, Australia and all around the world—and nurses the same.

We are a wealthy country. Traditionally, we have imported these skills, all too often from places that have a gross shortage—even far greater shortages than we have. We have to stop doing that. We have to train significantly more people than we need, because quite a number of them will, for whatever personal reasons, decide to go elsewhere, even if we are providing them with the best possible working environment we can. So we have to train vastly more people. That is our global responsibility.

[Baroness Merron (Lab)]

My Lords, I start by acknowledging—as I am sure we all do in your Lordships’ House—the value, commitment and contribution of the workforce who are the backbone of our health and social care services. We owe them our gratitude. The noble Baroness, Lady Finlay, and my noble friends Lady Whitaker and Lord Bradley are all absolutely right to acknowledge the breadth and depth of the workforce: that it is a team, and that each part of that team is absolutely connected with the other.

I very much agree with the noble Lord, Lord Kakkar, who said that this debate is absolutely central to all that we are here to discuss and to all that patients need from our health and social care services. I am extremely grateful to noble Lords who have tabled and supported amendments and spoken in this debate. All of them have made a compelling case for a workforce plan that will, if these amendments are taken on board by the Minister, feature a laser-like focus on valuing the entire staff team, along with providing planning, financial resources, responsibility, reviewing and reporting—all essential features of any effective strategy. This begs the question: if we see these pillars in a strategy in every other part of our economy and of the way that our whole society functions, why can we not have this for the NHS and social care?

I am glad to have tabled an amendment that calls for a duty on the Secretary of State to ensure that there are safe staffing levels—this was very clearly emphasised by the noble Baroness, Lady Walmsley, in her opening to this debate. This is extremely important because it places a duty where it ought to be and allows examination and transparency.

Of course, we all know that the situation we are discussing today is not new: the noble Lord, Lord Stevens, spoke to your Lordships’ House about a litany of unfulfilled promises and missed opportunities in workforce planning. The noble Baroness, Lady Harding, spoke of her efforts to resolve this and explained the need, which we see in these amendments, to introduce improvements to the Bill to resolve the matter of workforce supply against the demand that is there. All of that requires a lead-in time, and it has to be underpinned by the requisite funds—there is no shortcut to this. In England, we now have a whole website that is full of guidance, and NHS boards are required to take this into account, and yet there is no national workforce plan or credible plan for funding. Until there is, the ICBs will not be able to plan either. The noble Lord, Lord Warner, rightly pointed out that this is not an either/or situation: we need a national workforce plan, and it has to have the funds to deliver it.

I will draw the Minister’s attention to particular aspects of the amendments: explicit recognition of the need to consult with the workforce through trade unions; that planning must cover health and social care; that timescales for reporting should be testing but not too onerous; and that the financial projections in any workforce plan should be subjected to some level of independent expert verification, through the Office for Budget Responsibility, for example.

Behind all of these discussions, we started in a place highlighted by the noble Baronesses, Lady Masham, Lady Walmsley, Lady Watkins and Lady Bennett, and other noble Lords, who spoke of the crisis of the levels of vacancies that we now see and the impossibility of dealing with this without preparation and resource. Any national plan for the workforce needs to be built from the bottom up and not imposed from the top. I hope that the Minister will consider this when he looks at ways to improve the Bill.

I will raise a couple of related points. The scale of the workforce challenge is well established, but it goes far deeper than just numbers and structures. It goes to issues around workforce terms and conditions and career development, particularly in social care, which the noble Baroness, Lady Hollins, brought our attention to. It also has to deal with cultural issues; there is a clear indication that all is not entirely well in the NHS when it comes to diversity, whistleblowing and aspects of how staff are or are not nurtured and supported.

I have one final specific issue to raise, which we have heard about in the debate today and that I would like to extend: international recruitment. I ask that the Government do more to prevent international recruitment, particularly of nurses and midwives, from countries where it is unethical to recruit, and that this be a part of any future strategy. The existing code of practice on international recruitment is not legally enforceable, so when Unison or others report breaches of the code by recruitment agencies, there is no provision for sanctions to be brought against rogue operators. I ask the Minister to confirm that the code of conduct will be promoted and will be enforced.

The situation in which we find ourselves is fixable. I hope the Minister, in his response tonight, will show your Lordships’ House that he understands the situation, that he understands what needs to be done and that he will do it.

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

Well, this has been another fascinating debate, and I welcome the contributions from all noble Lords speaking from many years of experience, including former chief executives of the National Health Service and former Health Ministers, medical experts and practitioners. I am grateful to the many noble Lords who have laid amendments in this group; there clearly is a strength of feeling, not only in this Chamber but in the other place. To cut a long story short, this will clearly require more discussion.

However, I am duty bound to give the Government’s perspective on this. We have committed to publishing a plan for elective recovery and to introduce further reforms to improve recruitment and support our social care workforce, as set out in the White Paper, People at the Heart of Care: Adult Social Care Reform. I take the point of the noble Lord, Lord Stevens, that he is aware of many expectations that have passed, and I hope that this time we surprise him. We are also developing a comprehensive national plan for supporting and enabling integration between health, social care and other services that support people’s health and well-being.

The monthly workforce statistics for October 2021 show there are record numbers of staff working in the NHS, with over 1.2 million full-time equivalent staff, which is about 1.3 million in headcount. But I am also aware of the point of noble Lord, Lord Warner, that it should not just be about the number of people working—it is about much more than numbers and quantity; it is about quality and opportunities. We are also committed to delivering 50,000 more nurses and putting the NHS on a trajectory towards a sustainable long-term future. We want to meet our manifesto commitment to improve retention in nursing and support return to practice, and to invest in and diversify our training pipeline, but also, as many Lords have said, to ethically recruit internationally.

On that, I want to make two points. The first is this. When I had a similar conversation with the Kenyan Health Minister and expressed the concern we had about taking nurses who could work in that country, the Minister was quite clear that they actually train more nurses than they have capacity for in their country—they see this as a way to earn revenue. There have been many studies on how remittances are a much more powerful way of helping countries, rather than government-to-government aid. With that in mind, we recruit ethically, and we have conversations.

The second point is also from my own experience. I was on a delegation to Uganda a few years ago and I remember speaking to a local about the issue of the brain drain and our concerns. We were talking about immigration, and he said, “You do realise, though, it is all very well for you to patronise me and say that I should stay in this country, but sometimes the opportunities are not here for me in this country. You talk about a brain drain; I see my brain in a drain”. Sometimes we have to look at the issues of individuals who are concerned that they do not have opportunities in their countries, even if the numbers dictate otherwise. Having said all that, we are committed to the WHO ethical guidelines, but I also think that we should be aware. Look at the way that, post war, the people of the Commonwealth came and helped to save our public services. I hope we are not going to use this as an excuse to keep people out, though I understand the concern that we have to make sure that we recruit ethically internationally.

21:00

On Amendments 170, 171 and 173, the department has commissioned HEE to work with partners to develop a robust long-term strategic framework for the health and social care workforce for the next 15 years, which for the first time includes regulated professionals working in adult social care such as nurses and occupational therapists. The report provided for in Clause 35 will also increase the transparency and accountability of the workforce planning process. However, this amendment would require an independently verified report to be published every two years with the assistance of HEE and NHS England. Given what we have heard tonight about some of the long lead times for training of health professionals, there is a concern that publication in a two-year cycle could be seen as too rapid given the long lead times for many health professionals.

However, one of the things to be welcomed is the different pathways into nursing. There are nursing apprenticeships, and there are also different pathways into becoming a doctor. If you have been a nurse and you have worked a certain number of hours, you can train to become a doctor. That shows that we are being innovative with regard to the different pathways into different jobs in the health and care sector.

Last year, we announced our intention to formally merge NHS England with HEE. The transfer of HEE’s functions to NHS England is subject to parliamentary approval. If approved, this will help ensure that service, workforce and finance planning are integrated in one place at a national and local level.

The Government share the wish to see safe patient care. Safe staffing remains the responsibility of local clinical and other leaders, supported by guidance and regulated by the CQC. Good quality care is influenced by a far greater range of issues than how many of each particular staff group are on any particular shift, but it is clearly important, which is why the Government are committed to continuing to grow the workforce.

On applying the lessons learned from formal reviews and commissions concerning safety incidents, in the last decade the Government have introduced significant measures to support the NHS to learn from things that go wrong, to reduce patient harm and to improve the response to harmed patients. These include a regulated duty of candour, protections for whistleblowers, the Healthcare Safety Investigation Branch, the first-ever NHS patient safety strategy, medical examiners implemented across the NHS and legislation to establish a patient safety commissioner.

On Amendments 83 and 86 from the noble Baroness, Lady Walmsley, responsibility for safe staffing rests with individual employers, and it would be inappropriate to confer such a duty on ICBs instead. Reaching the right staffing mix for the right circumstances and the right clinical outcomes requires the use of evidence-based tools, the exercise of professional judgment and a multi-professional approach, as well as considering local issues specific to individual employers. There need to be safeguards to ensure that they deliver this responsibility effectively and that robust arrangements are already in place.

Appropriate staffing levels are already a core element of the CQC registration regime for health and social care providers, and providers are required by the CQC to deploy sufficient numbers of suitably qualified, competent, skilled and experienced staff. Staff must also receive support, training, professional development, supervision and appraisals as necessary. In this work, employers are supported by guidelines from the National Quality Board and NICE which are based on the best available clinical evidence and are designed to ensure patient safety.

Amendment 83 seeks to amend new Section 14Z41—“Duty to promote education and training”—in order to consider safe staffing. I highlight to the noble Baroness that Health Education England already has a statutory duty to exercise its functions with a view to ensuring that a sufficient number of persons with the skills and training to work as healthcare workers for the purposes of the health service is available to do so throughout England, as in Section 98 of the Care Act 2014. To place additional obligations on ICBs in relation to the workforce is at this stage seen as unnecessary.

Turning to Amendment 172, the Clause 35 report is not intended to produce assessments of supply and demand of staff itself, but rather to describe the system in place for assessing and meeting those needs. However, in relation to the coverage of non-regulated staff in the Clause 35 explanatory report, currently, Clause 35 does not seek to make a distinction between the regulated and non-regulated elements of the workforce. Clause 35 requires that the Secretary of State’s report cover the

“workforce needs of the health service.”

Our intention, therefore, is to include a description of the systems in place that cover the non-regulated elements of the health workforce, where appropriate.

The noble Baroness also raises the issue of integrated workforce planning across NHS and non-NHS employers. I hope to reassure her that we share her view of the importance of this issue and that work is under way on it. Section 1F(1) of the NHS Act 2006 places a duty on the Secretary of State for Health

“to secure that there is an effective system for the planning and delivery of education and training to persons who are employed, or who are considering becoming employed, in an activity which involves or is connected with the provision of services as part of the health service in England.”

This duty is delegated to Health Education England under Section 97 of the Care Act 2014.

In discharging this function, HEE takes account of requirements of employers of health and care staff beyond the NHS in England, including independent practice, social enterprises and the voluntary sector, because to ensure that the needs of the NHS are met, the needs of other sectors with which it works must be taken into account. We heard the noble Lord, Lord Mawson, speak so eloquently about the work of social enterprises and the voluntary sector.

The amendment also calls for the assessment of workforce demand to include demand across Scotland, Wales and Northern Ireland. Although we recognise that workforces across the health services in the UK are interlinked, this amendment to formally report and assess demand is unnecessary and represents an additional burden for the devolved Governments, who have their own systems in place. Where appropriate, the department and HEE already work collaboratively with the devolved Governments and their arms-length bodies in relation to workforce planning and supply, without the need for formal legislative requirements. We must continually stress to the devolved Administrations that we recognise the constitutional settlements.

For example, the UK Foundation Programme office, which facilitates the operation and continuing development of the foundation programme for doctors, is jointly funded and governed by HEE and the devolved Governments. In addition, there is a regular dialogue, which I have alluded to previously. Also, many of the healthcare professional regulators, including the GMC, NMC and HCPC, operate on a UK-wide basis to enable doctors, nurses, midwives and other health professionals—so eloquently referred to by the noble Lord, Lord Bradley, and others—to work across the UK. As part of their regulatory activities, they publish data on how many registrants are on their register and therefore available for work in the UK. This data is available for use for workforce planning across the UK.

Turning to Amendment 174, we recognise the importance of ensuring that staff across the NHS and social care are properly paid—an issue that noble Lords have rightly raised a number of times. However, we are not sure that an annual report by the Secretary of State is the right approach. There is a well-established process in the NHS for those on national contracts. Individual NHS organisations determine what roles are required and where these fit on the agreed pay structures within national contracts. These national contracts set out progression arrangements where applicable. For those on entry level pay points, we do not expect NHS organisations to report to us on the profile of their workforce.

In addition, the vast majority of adult social care workers are employed by private sector providers, who ultimately set their pay, independent of central government. An issue with using these private sector providers is that often, they cross-subsidise taxpayer-funded patients from their private patients. But local authorities do work with care providers to determine a fair rate of pay based on local market conditions. Part of the increase in funding that we announced was to address that issue, to ensure that care homes taking taxpayer-funded patients are paid a fair rate. The Government would not expect any private sector organisations to undertake additional reporting to government on pay rates, the rates of progression available and the profile of the workforce at different pay points. We see that as an unfair additional burden on social care providers.

Amendment 146 places a requirement on ICBs to report on workforce requirements. We agree that ICBs will have a critical role to play in growing, developing, retaining and supporting the entire health and care workforce locally. To support them in fulfilling this role, in 2021, NHS England published—I use this word advisedly—draft guidance on the ICS people function.

ICBs will have specific responsibilities for delivering against the themes and actions set out in the NHS people plan, as well as the functions outlined in guidance. These functions include growing the workforce for the future and enabling adequate workforce supply, through strategic planning and collaboration on recruitment and retention across the system. NHS England will have a role in supporting this. It has also set out an expectation that ICBs will develop collaborative workforce plans based on population health needs and take an integrated approach to planning across workforce, finance and activity. We expect this approach to tie into their strategic planning cycle. The guidance also asks ICBs to work with regional and national workforce teams to support aggregated workforce planning and to inform on priorities.

On Amendment 214, most, if not all, ICSs already currently have an ICS people board or equivalent for overseeing delivery of these plans. The draft ICS people function guidance sets the expectation that these will continue to be in place, including as part of preparatory arrangements for formal establishment.

As previously discussed, the Bill intentionally sets a floor, not a ceiling, for ICB membership. This is one of the issues we will have to continue to discuss, given all the amendments noble Lords have submitted on mandatory places on integrated care boards; this is clearly going to mean discussions in the round. The ICS design framework, published in June 2021, sets out the proposed requirement for ICBs to have executive board roles that include, as a minimum, a chief finance officer, a medical director and an executive chief nurse. NHS England and NHS Improvement’s guidance on effective clinical and care professional leadership, published in September 2021, aims to support future ICBs in ensuring appropriate involvement of multi-professional clinical and care leadership in decision-making within the ICB area.

Having said all this, I see that the number of amendments that have been tabled reflects the strength of feeling in this House and the other place on workforce issues and workforce planning. I hope I have been able to assure the Committee of the department’s extensive, ongoing work to support the entire health and social care workforce.

[Lord Warner (CB)]

I am sorry to interrupt the Minister. I have been listening extremely carefully to his response to these amendments and have to say, as gently as I can, that I did not hear many concessions to the points made by noble Lords across the Committee. Unless something really exciting is going to come in the last couple of pages of his brief—I have been watching him turn them over—I suggest that he needs to go back to those above his pay grade and bring home to them the level of distrust about whether the Government are serious about putting proper amendments on workforce issues and planning into this Bill.

[Lord Kamall (Con)]

You can tell the noble Lord used to have my job, because he clearly anticipated the exciting bit—perhaps not exciting, but more practical—I was coming to. It is quite clear there is a strength of feeling on this issue—

[Lord Lea of Crondall (Non-Afl)]

As a slight modification of the question that was put, one way that Ministers conclude such debates is by saying that they will write to noble Lords on specific questions, to make sure they have been dealt with.

[Lord Kamall (Con)]

We recognise the strength of feeling in this House and in the other place. This will clearly require more work and more discussions. In that spirit, I ask the noble Baroness to withdraw her amendment.

[Baroness Walmsley (LD)]

I thank the Minister for his comprehensive response to this debate, which the noble Baroness, Lady Harding, suggested was probably the most important that we have had and will have in Committee on the Bill. Staff are absolutely central to the delivery of health services.

Unfortunately, in this debate we have heard about a great deal of failure. We have failed the staff because we have not provided them with enough colleagues for them to be able to do their work without feeling stressed, being worried about risk to patients, feeling burnout or wanting to reduce their hours or retire early. We have failed to provide enough GPs; we were promised 5,000 or 6,000 extra, but, as the noble Lord, Lord Patel, said, we have fewer than we had in 2015. We rely on 30% of doctors from abroad—an enormous number. Although I absolutely accept what the noble Lord says about the appropriateness of temporary training placements, opportunities and remittances going back to the countries from doctors and nurses coming here, it sounds a little excessive to me. Perhaps we need to do better in planning our own workforce.

21:15

It is not just doctors and nurses: the noble Baroness, Lady Finlay, highlighted the allied health professionals, whom I mentioned only briefly in my introduction. They are very important too, and there is a lot of shortfall there. She also mentioned CPD, which is vital, particularly as health technologies, practices and opportunities for treatments change.

There is a great deal more to do. The Minister is quite right that those of us who have been talking about these issues will undoubtedly get together over the next few weeks and, I hope, have discussions with him. The noble Baroness, Lady Cumberlege, has put forward a comprehensive measure that could be put in place—I was so pleased that she agreed with me on this—not just for normal service but for the unexpected needs of the health service. I can assure your Lordships that there will be some.

The noble Lord, Lord Stevens, gave us a woeful litany of failures. My husband always says that the family motto is, “Who can we blame?”. The noble Lord, Lord Stevens, fairly and squarely blamed the Treasury, so I hope it is listening. Doing what needs to be done will cost more money, but if we do not do it there could be a total disaster in our health and care services. In fact, in social care there already is.

I was surprised, and I think the noble Baroness, Lady Verma, was probably surprised, to hear the Minister say that care homes are paid a fair rate for publicly funded patients in social care. I do not think we would have private payers charged more if that was really the case. Perhaps her managers might agree with that.

One noble Lord—I cannot remember who—said that we need a system-wide understanding of what is needed and the right way to go about providing it. The noble Lord, Lord Warner, and others mentioned that we have a very competitive global market in all the health professions, and therefore we need to be very clever about recruiting enough for this country while at the same time fulfilling our obligations to the rest of the world and lower and middle-income countries.

I turn briefly to my two amendments. I accept what the Minister says about the fact that duties exist to train enough staff to provide safe staffing levels. However, this whole debate has proved that those duties are not being carried out. Employers are not able to carry them out, because there is not enough of a pool of the right staff in the right places at the right training level to enable them to carry out that duty. That is why it is perhaps a good idea to restate it.

This has been an excellent debate, and I know that the Minister has heard what we have to say and that there will be more discussions. In that light, I beg leave to withdraw my amendment.

Amendment 83 withdrawn.

Amendments 84 to 92 not moved.

Amendment 93

Moved by

[Lord Hunt of Kings Heath]

93: Clause 20, page 18, line 26, at end insert—
“(d) the impact on the diversity of provision of health and care services, including social enterprises, independent providers and charities in that area.”Member’s explanatory statement
The amendment would place a duty on NHS England and Integrated Care Boards to ensure that there is a diversity of provision within local areas including social enterprises so that there is a range of choice and expertise available to local communities.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it has been rather a long wait, though I doubt that we shall spend as much time on this group as we did on the last. I do not pretend that the issue of procurement is as important as that of the workforce; none the less, when we come to Clause 70 there are some very important considerations.

I should say that, although my own two amendments are narrowly focused, in opening this debate I must register with the Minister concerns about the open-ended nature of the power to be given to Ministers under this clause. In essence, through secondary legislation, the whole procurement regime can be changed at the whim of an executive order. Services could be privatised or outsourced or whatever Ministers choose to do with them subject to regulations. It seems rather extraordinary that we are taking out the marketisation sections from current legislation only to replace them with an open-ended power and a procurement regime when we simply do not know what it will be.

I remind the Minister that the Delegated Powers Committee has been very clear that Clause 70 needs very careful attention. As it says,

“initial consultation has been carried out by NHS England on the content of the”

procurement regime, but

“full analysis has not been completed and there has not been time to produce a more developed proposal.”

The Delegated Powers Committee concluded:

“We do not accept that the inclusion of regulation-making powers should be a cover for inadequately developed policy.”


I hope that the Minister, when he winds up the debate, will say something more about this and how the Government intend to respond. I think it very unlikely that we will let this Bill leave this House with this clause unaltered. Indeed, I note that the noble Lord, Lord Lansley, intends to oppose that Clause 70 stand part of the Bill.

My two amendments are probably the easiest that the Minister will have to deal with in this group and I hope that, for once, he will just get up and say that he accepts them both because they are very sensible and helpful to the way in which one wishes to see the NHS develop commissioning arrangements at the local level. The first, Amendment 93, requires NHS England and integrated care boards to consider the impact of their decisions on the diversity of provision for health and social care services, particularly social enterprises and charities.

I just want to talk about social enterprises: they are set up with a social mission and deliver that mission with all the income that they receive. Over the past 20 years, they have become an ever more important part of delivery of healthcare services. My understanding, from Social Enterprise UK, is that there are 15,000 social enterprises delivering health and care services in this country and that there is very strong evidence to suggest that these organisations are very good at what they do—often better than the alternatives. Indeed, according to a review of public service mutuals, a form of social enterprise, commissioned by DCMS in 2019, these organisations are developing high levels of productivity and better outcomes than their peers and the private sector. Their productivity has increased 10 times faster than that of the rest of the public sector over the past decade. Why? They have done it through innovation: by listening to communities and focusing on their social mission, social enterprises have been able to prepare to make changes to service delivery that other providers have been unwilling to do. As a consequence, a report in 2020 by the King’s Fund described social enterprises as

“‘engines of innovation’ within health and care”.

The Bill as it stands does not provide any duty, responsibilities or guidance for integrated care systems or NHS England to consider social enterprises within their activity. My understanding is that, because we already have these shadow ICBs, it is being interpreted at local level that there is not a future for social enterprises within local systems. There is a risk that decisions are now being made by these shadow organisations, which have no statutory being at all, that there will be a reduced role for these social enterprises in the future. That would be a tragedy, and I must ask the Minister to look at my amendment. It is very innocuous: all it asks ICSs and the NHS to do is to consider the impact of their decisions on a wider provider lattice. He could go further. It would be very simple for a message to be sent down the service from this debate to say that they got it wrong about social enterprises and they should indeed be thinking of commissioning more services in the future from there.

My Amendment 211 is linked to it. It deals with social value and how they should be embedded into procurement processes by integrated care boards. The definition of social value is the process by which public bodies seek to maximise the additional social, environmental and economic outcomes of the money that they spend. The coalition Government in 2012 supported the passage of the Public Services (Social Value) Act 2012. The adoption of the Act in the NHS has been very patchy indeed. I shall not delay the Committee by going into the details, but it is very disappointing. All my amendment would do is put a simple duty on NHS England to create guidance and ensure that social value is clearly understood across the system. It would be only guidance: it surely could not be a problem for the Government to endorse their own policy on social value in the NHS. I hope that the Minister will be sympathetic. I beg to move.

[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

The noble Lord, Lord Howarth, is taking part remotely and I now invite him to speak.

[Lord Howarth of Newport (Lab) [V]]

My Lords, I support my noble friend in his aim, expressed in Amendments 93 and 211, to require that procurement practices by the NHS are such as to ensure diversity of provision and maintain social value. The case was made convincingly, I hope, in previous debates that the non-clinical and voluntary community and social enterprise sectors have important contributions to make to preventing ill health, both physical and mental, aiding recovery and reducing health inequalities. That being so, it is only common sense that the NHS, and ICBs in particular, should use their power and influence to ensure that there is a flourishing ecology of the community organisations that share their agenda. The NHS should engage with them, listen to them, enlist them and cherish them.

Although the value of community organisations to healthcare has long been obvious, that has been all too little recognised in the actual practice of the NHS. Responsibility here, however, does not rest only with the NHS. The non-clinical sector must help the NHS to relate effectively to it. The King’s Fund has been doing important work on contractual models for commissioning integrated care. This was the basis, for example, for the way arts and cultural organisations came together in Gloucestershire to enable the CCG to fund the work without having to deal with lots of small organisations and individual artists. In Suffolk, the CCG has provided administrative support and leadership in providing training for arts and cultural workers to connect to link workers. We cannot expect ICB commissioners to deal with a mass of organisations in the VCSE sector, but they can support that sector to develop suitable models of co-ordination. I think “market-placed development” is the bureaucratic term here. Organisations such as the National Centre for Creative Health and the Culture, Health and Wellbeing Alliance stand ready to support non-clinical providers to get their act together to enable ICBs to negotiate with them productively.

21:30

On procurement regulations—the subject of Clause 70 —I want to see among the general objectives the relevant authorities specifically enjoined to support the non-clinical sector to play its full part in contributing to the better health of the nation. On the provision referred to in new subsection (3)(a), on

“fairness in relation to procurement”,

I want to see a requirement of financial equity between clinical and non-clinical bodies from which the services are procured. Rates of pay in the non-clinical sector should bear a decent relationship to those in clinical organisations. Public health should no longer be the poor relation.

Non-clinical organisations should have the core costs of providing services to the NHS realistically funded, and provider organisations should be enabled to budget over sensible periods of time. That way, they will be able to provide a more reliable and higher-quality service. On financial grounds alone, it is in the interests of the NHS to invest constructively in the non-clinical sector in order to ensure that high-quality services are available when and where they are needed. If enabled to do this, the sector would provide remarkable value for money for the NHS.

[Lord Lansley (Con)]

My Lords, I am pleased to follow the noble Lord and I endorse the points he makes about the diversity of provision, which is certainly something that we should aim for; I am not sure how we will make sure it is in the Bill, but we will get to that later on. I will not dwell on the other amendments; I will simply explain why I oppose Clause 70 standing part. I was pleased to see that the noble Baroness, Lady Thornton, shares that view, although she may do so for different reasons.

This gives me an opportunity to explain something that I have been saying to Ministers—not necessarily these Ministers but their predecessors—for the last two or three years: if the NHS took the view that the structure of the procurement regime that was applied to it was a constraint, cumbersome and the various other words that it used, Ministers could do something about it very quickly because, in the legislation, they have the power to change the regulations. So why do they not do so? I also want to explain that the existing regulations do not impose some of the constraints that it is argued they do. That begs the question behind my opposition to the clause standing part: why are we legislating in this way in this clause, when the effect is to remove a power to make regulations relating to the procurement regime in order to then put into the Bill a power to do just that? It really does nothing much more than that.

Of course, in truth, we do not know what these new regulations will look like because they have not been published, as the noble Lord, Lord Hunt of Kings Heath, rightly said. The issue lies in the regulations because, as I will demonstrate, what mattered to the service, as it turned out, was not what was in Section 75 of the 2012 Act but what was in the subsequent 2013 procurement, choice and competition regulations. I am sorry, but this is going to take a few minutes.

Clause 70 does nothing much more than refer to the fact that there should be transparent and fair processes, that “managing conflicts of interest” should take place and that compliance should be verified—I do not know quite what that means but it is probably a good thing. It also makes reference to general procurement objectives. You might ask what those are, since they are not specified in Clause 70 itself.

If one goes back to the previous legislation, one gets to the point in the NHS (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013, which are also revoked later in Clause 70. In the regulations, there is a paragraph that says what the procurement objectives are:

“for the purposes of the NHS … a relevant body must act with a view to … securing the needs of the people who use the services … improving the quality of the services, and … improving efficiency in the provision of the services”.

I rather hope that we are not yet encountering anything to which people would object. It then goes on to say:

“including through the services being provided in an integrated way (including with other health care services, health-related services, or social care services).”

Frankly, we have had years now of people explaining that the legislation did not allow them to do things in an integrated way. But when one looks back to 2013 and the regulations brought in, they say that the objective is to do things in an integrated way. I slightly wonder why the NHS did not do that, rather than complain that it could not.

Let me go on. When looking at the general requirements of procurement subsequently in that regulation, it includes the provision to

“act in a transparent and proportionate way, and … treat providers equally and in a non-discriminatory way”,

and wants projects delivered with “best value”. So far, again, there is nothing to which people object.

In Regulation 3(4) we hit something that people might object to. In defining what quality and efficiency look like, the regulations go on to say that the services should be

“provided in a more integrated way”—

which we have already heard about, and it repeats exactly that point—

“enabling providers to compete to provide the services”.

This may be where the objection came from, in which case my argument to Ministers is this: if that is what you do not like in the regulations, omit it from them. Ministers could have done it literally in a matter of weeks.

What is the other objection to the existing structure of the legislation? Section 75 of the Health and Social Care Act 2012, about the power and what it should be used to do, talked about good practice in procurement and the right to patient choice. I mentioned in a previous group the importance of, in my view, putting the right to patient choice into the provider selection regime, but we will come on to that again at a later stage.

Here is a third point, and something to which I think some people objected to, and have objected to subsequently; that providers

“do not engage in anti-competitive behaviour which is against the interests of people who use such services.”

I might say that if the anti-competitive behaviour is in the interests of the people who use those services, it is not necessarily objectionable. However, when one looks further, Regulation 10 of the subsequent regulations describes the circumstances in which anti-competitive behaviour might be justified:

“unless to do so is in the interests of people who use health care services … which may include … the services being provided in an integrated way”.

We keep coming back to this.

The other point I would make—she is not here, but the noble Baroness, Lady Blackwood, said it at Second Reading—is that the NHS objected to the fact that it was required to engage in compulsory competitive tendering. Section 75 of the 2012 legislation says that the regulations may

“impose requirements relating to … competitive tendering”,

as well as to the management of conflicts of interest, but it does not require the regulations to be made at all, and it certainly does not require the regulations to include compulsory competitive tendering, and nor do the subsequent regulations published in 2013 require that.

All of that leads me to the conclusion that Section 75 of the 2012 Act simply creates a power; it does not need to be changed for new regulations to have been made. Section 75 says that subsequent 2013 regulations may be objectionable to people in so far as they refer to qualified providers and to competitive tendering. If that was the problem, you should revise the regulations, publish them, take out the bits you object to and give the NHS a provider selection regime that fits their anticipated needs. The objectives are all there: quality, efficiency, best value, fairness, proportionality and an integrated service—and an integration, if that is what this Bill is all about, was already there in the 2012 legislation.

My question to my noble friend for before Report, and the question asked by the stand part debate, is: why are we doing what we are doing in Clause 70? Cannot we do it perhaps more simply and effectively by amending the existing legislation, rather than by trying to do wholesale repeals, introducing something that we will not know what it looks like until after this Bill has passed through this House?

[Lord Sharkey (LD)]

My Lords, Amendment 213 is in my name and that of the noble Baroness, Lady Thornton, and I am very grateful for her support. I can be briefer than I was expecting to be, given what the noble Lords, Lord Lansley and Lord Hunt, have said in the last few minutes.

My amendment addresses another instance of an attempt by the Government to bypass parliamentary scrutiny, and it proposes in response an enhanced form of parliamentary scrutiny. As the noble Lord, Lord Hunt, remarked, the DPRRC report on the Bill notes that the delegated powers memorandum says that, although initial consultation has been carried out by NHS England on the content of the procurement regime, full analysis has not been completed and there has not been time to produce a more developed proposal. Clause 70 gives the Minister the power to impose a new procurement regime, without giving any details of what it might be. This is the clearest possible example of the Government taking powers to make policy without specifying at all what that policy may be.

The DPRRC rejects the inclusion of regulation-making powers as a cover for inadequately developed, or undeveloped, policy. What is worse, the delegated powers memorandum says that a Cabinet Office procurement Bill will most likely follow this Bill, and it may require some amendments to the regulation-making powers that we are discussing in this Bill. The regulatory powers in question are to be subject to the negative procedure. I think we all, except for the Government Front Bench, would recognise that the negative procedure is emphatically not effective parliamentary scrutiny.

What we have here is a skeleton clause, with regulation-making powers of very broad scope. There is nothing in this clause, or in the Bill more generally, which would in practice constrain how broadly these powers could be used in constructing a procurement regime. It would probably be better, from the point of view of parliamentary scrutiny, to leave out Clause 70 entirely, as the noble Lord, Lord Lansley, my noble friend Lady Walmsley and the noble Baroness, Lady Thornton, propose, and wait for the full policy to be set out in the Bill, as promised to follow soon from the Cabinet Office.

If the Minister can advance compelling reasons why this Bill should be the vehicle for setting up the procurement regime by regulations, there is one route we could take, as set out in my amendment. This amendment imposes the super-affirmative procedure on the delegated powers proposal. The super-affirmative procedure is designed and used to deliver a measure of real scrutiny in circumstances that require it. In proceedings on the recent Medicines and Medical Devices Bill, the Minister very helpfully summarised the super-affirmative procedure as follows, saying that the

“procedure would require an initial draft of the regulations to be laid before Parliament alongside an explanatory statement and that a committee must be convened to report on those draft regulations within 30 days of publication. Only after a minimum of 30 days following the publication of the initial draft regulations may the Secretary of State lay regulations, accompanied by a further published statement on any changes to the regulations. They must then be debated as normal in both Houses and approved by resolution.”—[Official Report, 19/10/20; col. GC 376.]

According to the Library, the last recorded insertion in a Bill of a super-affirmative procedure was by the Government themselves, in October 2017, in what became the Financial Guidance and Claims Act.

I repeat that, if the Minister really can convince us that he has a compelling reason to have this new procurement regime set up by regulations in the Bill, my amendment would provide the opportunity for detailed parliamentary scrutiny. If he cannot accept that, then we would be wise to take out Clause 70 in its entirety.

21:45

[Lord Warner (CB)]

My Lords, I will briefly speak in support of the amendment in the name of the noble Lord, Lord Hunt, and echo many of the points made by the noble Lord, Lord Lansley, although I draw slightly different conclusions to him.

We have been around this track on social enterprise over the last 15 or 16 years and, in what I might call the good old days, there was a social enterprise unit in the Department of Health. That arose—it is worth remembering this—because many NHS staff preferred to work in a social enterprise unit rather than be direct employees of the NHS. The early days of social enterprises saw a number of groups of staff, particularly nurses, producing, in effect, co-operatives to work as social enterprises. While the noble Lord is entitled to feel a little anxious if there is nothing in the Bill even as modest as Amendment 93 in the name of the noble Lord, Lord Hunt, that arrangement gives some degree of protection to social enterprises which have served the NHS pretty well over the last 15 or 16 years. So, the least the Government could do is accept Amendment 93.

To some extent, the points made by the noble Lord, Lord Lansley, relate to the points I made earlier about Amendment 72. The bottom line on all this is that the way the Government have gone about trying to say, in Clause 70, that there needs to be a new provider selection regime, while not declaring their hands, has actually created the worst suspicions. If indeed, as the noble Lord, Lord Lansley, says, there is adequate provision already, why create the suspicion that some dastardly deed is going to be produced at a later stage by putting in Clause 70 and then not producing the draft regulations before the House clears the Bill?

The Government have got themselves into a fair tangle over this issue, and the Minister would perhaps do well to take this back to the department and try to reassure people as to what the Government are up to. Are they trying to change the Section 75 arrangements, and, if so, in what way? We want a lot more clarity about what the future provider regime will actually look like.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak very briefly, having attached my name to a couple of amendments in this group. The issues around Clause 70 have been very clearly addressed, and I will just add one reflection, looking back to a discussion on an earlier group last week, when I said that if the Secretary of State gets great power, with that comes great responsibility. From the debate in your Lordships’ House, the noble Lord, Lord Hunt, is right to say that the Bill will not leave the House in this condition, but, if it were to, or if, after future amendments and ping-pong it were to end up back in this condition, the Secretary of State would really be in quite a dangerous place.

I pick up on social enterprises and the amendment of the noble Lord, Lord Hunt. We will be coming to some amendments, perhaps on Wednesday, when I will be talking about the impact of privatisation on social care. There will at some point—we have already seen this several times—be a huge crisis of the financialised social care sector, particularly care homes. When large chains fall apart and we have to find a way forward, social enterprises will be one way. I am aware that Clause 70 mentions healthcare and associated services, but to think about this in a whole and integrated way, we should ensure that there is recognition for social enterprise.

I attached my name to Amendment 208 because I thought it was important to demonstrate maximum cross-party support. Dare I say that events in the House earlier today demonstrated the need for transparency and openness in official contracts? There is great public concern about the misallocation of resources and the need for a guarantee of openness in government and official spending, so that amendment is crucial.

I do not know how I missed Amendment 209 in the name of the noble Baroness, Lady Thornton, but I certainly would have attached my name to it had I not done so. It is often commented that I cover a very broad range of subjects in your Lordships’ House, so I often talk about trade deals in other contexts, but there are very grave concerns about trade deals undercutting principles and priorities that have been identified in British politics, so that amendment is also important.

Finally, on Amendment 211, we have seen that giving government contracts to the lowest cash bidder has had disastrous consequences across a whole range of sectors. It has benefited a handful of giant companies, some of which have collapsed, some of which have engaged in rampant fraud and all of which have delivered a disastrous quality of services, exploiting poorly paid staff. Social enterprise is a different approach, a different way of commissioning and a way out of that. It is a way of relocalisation: stopping those few large companies that keep winning contracts because the whole thing is structured so that only a handful of companies can bid for them anyway. These are all really important amendments.

[Baroness Walmsley (LD)]

I have my name to Amendment 93 and Clause 70 stand part. As the noble Lord, Lord Warner, just told us, Clause 70 is a bit of a mess, and having listened to the explanation of the noble Lord, Lord Lansley, of why it is a bit of a mess, I do not find much need to say much more. However, on the issue of compulsory competitive tendering, I understood that the Bill will reduce its importance. I wonder how those things link together and whether the Minister can explain it to me.

On the amendment of the noble Lord, Lord Hunt, about diversity of provision, it is usual that those with the biggest voices shout the loudest and, in the health sector, it is often also those with the biggest budgets, such as the acute hospitals. We have this very valuable not-for-profit sector that has a small voice and a small budget—at least individually, although it adds up to quite a lot—and a great deal of it comes from the NHS.

As has been said, many of them are spin-offs, comprising former NHS staff who prefer to work in that context. There are an awful lot of them—about 15,000—and they feel particularly threatened by the Bill because, despite the fact that they are specifically mentioned in the ICS design framework as a vital cornerstone of a progressive health and care system, they are not referred to in the Bill and there appears to be little, if any, recognition of the potential impact of the new structures of provider collaboratives and place-based partnerships on their funding and, crucially, their involvement in decision-making. As others have said, that missing piece has caused a lot of suspicion and concern in the sector, and we must not lose these important organisations, because they really understand their client base: they are local, they are flexible, they are fleet of foot, they innovate and they are vital in providing services, in particular for those with complex needs. We must make sure that their voice is heard.

[Baroness Thornton (Lab)]

My Lords, this group is in two parts. The first part consists of the amendments tabled by my noble friend Lord Hunt. I need to declare an interest as a patron and the founding chair of Social Enterprise UK, and also as an associate of E3M, for public sector social enterprise leaders, particularly in the healthcare sector, so I have been living with this. Indeed, I must declare an interest as the Minister who helped take through the right to request in the NHS for our staff. I am very committed to these amendments, and to the need for social enterprises to continue to innovate and deliver in our health and social care system, which they do at the moment. There is a report due out very soon from the group chaired by the noble Earl, Lord Devon, on Covid and social enterprise; the way that social enterprises have delivered during Covid is stunning.

I turn to the amendments in the second part of this group, many of which have my name on them. I think that the noble Lord, Lord Lansley, and I find ourselves in broadly the same place: it is a mess. Our first thought was, “Why is this clause here?”, because it does both the things that my former noble friend Lord Warner—I still regard him as a friend—said. This clause does not tell us what is going to happen but it makes us extremely suspicious about what might happen. My amendments—and also, I think, the amendments of the noble Lord, Lord Sharkey—are about that suspicion. It is quite right that the regulatory committee also said that we needed to pay attention to this, because it gives the Secretary of State very wide powers and it does not tell us what the Secretary of State will do with them.

I have quite a long speaking note, but I do not intend to go into the detail now. I simply say to the Minister that if, by the next stage of the Bill, we have not resolved the issues behind this clause, the Government may find themselves struggling to get it, as it stands, through your Lordships’ House.

[Lord Kamall (Con)]

My Lords, again, I have heard the excellent contributions that have been made, really holding the Government to account on a number of these amendments.

I begin with Amendment 93, tabled by the noble Lord, Lord Hunt. I assure him that social value is a very important matter for the Government. I know that this importance is echoed across the NHS, as the country’s largest employer and public service, and that we see the value of the excellent services and innovation that social enterprises, independent providers and charities bring to health and care—indeed, not just to health and care but to the wider economy. However, we do not think that this is an appropriate duty to put on NHS commissioners, or an appropriate addition to the triple aim.

We have been discussing the triple aim and other issues around how that ends up. We fundamentally believe that the focus of NHS commissioning decisions should be on offering the best possible treatments and services based on quality, rather than any decision being based on the type of provider, but, again, while recognising the diversity of non-clinical providers, especially social enterprises, voluntary organisations and charities. The duty of the triple aim is intended to be shared across the NHS. The aims represent a core shared vision of what the NHS should offer, and are intended to align NHS bodies around a common set of objectives and support a shift towards integrated systems. In this context we would not want to split the duty by adding a section relevant to commissioners, NHS England and ICBs, but not to trusts and foundation trusts.

On Amendment 211, in its long-term plan the NHS committed to reducing health inequalities and supporting wider social goals. Again, this refers back to previous debates on how we make sure that we really capture the essence of tackling inequalities in the Bill. We recognise that NHS organisations can contribute to social and economic development, and aim to reduce the impact of social determinants of health and reduce heath inequalities. It is with this in mind that social value, alongside sustainability, has been proposed as one of the key criteria which will be used for decision-making under the provider selection regime.

We believe that this amendment, at this stage, is not necessary, as alongside the role of social value as a key decision-making criterion, NHS England and NHS Improvement will produce guidance on applying net zero and social value in healthcare procurement, which includes taking account of social value in the award of central contracts.

The Cabinet Office social value model has been applied to procurement decisions taken by NHS England and NHS Improvement since 1 April 2021 and will be extended to the whole NHS system from 1 April 2022. Adopting the Cabinet Office social value model across the NHS complements strategic initiatives and policy within the NHS.

22:00

Amendment 206 is on the wider provider selection regime reforms. The NHS procures many services, but has specifically asked us to introduce a new tailored provider selection regime with key criteria that would enable decision-makers to arrange healthcare services in a more flexible way and deliver value for patients. With regard to the noble Baroness’s desire to cover non-clinical services—catering, porters, et cetera—while these are valued roles within the NHS, it is right that the procurement of these services should still fall under the Public Contracts Regulations 2015 and, in future, the new Cabinet Office procurement regime so that these services are arranged in a way that continues to add the best value to the healthcare system.

There may also be cases where it is essential that a service is procured as part of a healthcare service contract. It is for this reason that we have included the ability for regulations made under this power to include provision in relation to mixed procurements, where other goods and services are procured together with healthcare services. The regulation of these mixed procurements needs to work both for the effective management of health services and for the arrangement of wider public services. We are working closely with the Cabinet Office and stakeholders across the health service to ensure that this is the case.

If a contract were not awarded to a trust or foundation trust, Amendment 207 would require a commissioning body to conduct a consultation on the process and to specify terms and conditions. As we have set out, we intend that the new provider selection regime will allow the NHS and local government the flexibility to best arrange healthcare services for patients.

[Baroness Thornton (Lab)]

Will the consultation on outsourcing be published?

[Lord Kamall (Con)]

I assume it will be but, as I am about to say on a number of other issues, there is clearly a lot to take back to the department, not only tonight but on the whole Bill. I pledge to take that back to the department.

Where there is only one possible provider or where the incumbent is delivering well, it is intended that the regime will enable commissioners to continue contracts in an efficient way. However, if a trust or foundation trust currently holds a contract or did hold a contract, it should not be assumed that it is or was always with the most suitable provider. It is the view of the Government and the NHS that patients should be able to access services based on quality and value, delivering the best possible outcome, rather than basing the decision on what type of provider they are.

Amendment 208 would require a competitive tender for contracts with an annual value of over £5 million. While we recognise the role of competitive tender—and expect that, in many cases, this may be the appropriate route—the NHS asked the Government for greater flexibility in tendering contracts. It is for local commissioners to select the most appropriate provider for a service and to do so in a robust way. We agree with the importance of open, transparent and robust decision-making. Regulations and statutory guidance made under the provision in Clause 70 will set out rules to ensure transparency and scrutiny of decisions to award healthcare contracts. Decision-makers will also need to adhere to any relevant existing duties, act with transparency and appropriately manage conflicts of interest. This and other aspects of the regime will provide sufficient safeguards to fulfil the important need for fairness when making decisions about the arrangement of services.

On Amendment 209, the Government’s position on trade agreements is clear. We have been unequivocal that the procurement of NHS healthcare services is off the table in our future trade negotiations. This is a fundamental principle of the UK’s international trade policy. In fact, it dates back to the days when we were a member of the European Union; this issue came up a number of times. I remember working in the European Parliament with colleagues from the Labour Party and elsewhere to ensure that this was part of our agreements. Therefore, we do not consider the noble Baroness’s amendment necessary. My department has worked with the Department for International Trade to ensure robust protections for public services. For example, in the recent UK-Australia trade agreement, it was clearly stated that the procurement of health services is not included in the scope of the agreement’s services procurement coverage. We will ensure that our right to choose how we deliver public services is protected in future trade agreements.

Amendment 212 would mean that the provisions of Clause 70 expired three years after the day on which they commenced. In 2019, the NHS provided recommendations to the Government and Parliament for this NHS Bill. These recommendations told us that

“there is strong public and NHS staff support for scrapping Section 75 of the Health and Social Care Act 2012 and for removing the commissioning of NHS healthcare services from the jurisdiction of the Public Contract Regulations 2015.”

The recommendations also voiced support for the removal of the presumption of automatic tendering of these services. Our intention is that, through this clause and the new procurement regulations to be made under it, we will deliver what the NHS has asked for: new rules for arranging services that work for the NHS, and, most importantly, for patients.

[Baroness Thornton (Lab)]

I am very sorry—I know it is late—but, frankly, these are not rules that will serve the locality. At the moment it looks as if these rules will be set by the Secretary of State and will serve the Secretary of State. That is what the Bill says at the moment; those are the powers that this clause takes.

[Lord Warner (CB)]

Before the Minister answers that question, could he make clear whether the primary concern of the Government is the interests of the patient or of the NHS? They could be in conflict. Much of what he has said implies that they are the same but they are not, and some of the issues on which the Minister is saying “We’re doing what the NHS wanted” concern me about where the patient’s perspective is in that kind of approach.

[Lord Kamall (Con)]

The noble Lord raises a concern that I have heard a number of times: that we should be careful about saying “This is what the NHS wanted”—that the focus has to be about patients. We clearly take the view that this should be patient-centred and patient-focused. Indeed, I have had a number of conversations with many noble Lords about how we make sure that it is patient-focused. We understand, however, that concerns have been raised that Clause 70 may in part be a temporary measure, to be replaced or significantly edited by the Cabinet Office procurement Bill to follow. This is not and never has been our intention, but I understand the concern and recognise that there is value to aligning processes when such alignment is in the wider system interest. We continue to engage with the Cabinet Office on its proposals.

Amendment 213 would make regulations under Clause 70 subject to the super-affirmative procedure. I appreciate the intention behind this amendment. However, we do not feel at the moment that the super-affirmative procedure is necessary. As set out in our delegated powers memorandum, the powers created by Clause 70 are inserted into the NHS Act 2006, in line with the vast majority of regulation-making powers under that Act.

We know that there is significant parliamentary interest around the rules determining how healthcare services are arranged, so it is vital that we strike the right balance between democratic scrutiny and operational flexibility. The negative procedure provides that balance and ensures transparency and scrutiny. We will continue to engage widely on the proposals for the regulations to be made under these powers, to ensure that they will deliver—

[Baroness Thornton (Lab)]

I am sure that the noble Lord knows that there is actually no parliamentary scrutiny with the negative procedure—none.

[Lord Kamall (Con)]

May I explain about the point made by the noble Lord, Lord Lansley, on Clause 70—

[Lord Sharkey (LD)]

Before the Minister abandons Amendment 93 entirely, could he explain why it is necessary to have, in this Bill—when there is another one coming along—regulation-making powers that are unconstrained and non-specific?

[Lord Kamall (Con)]

We do not believe that they are, but clearly there is a difference of opinion about it.

I would like to turn, however, to the point made by my noble friend Lord Lansley on Clause 70. The regulations that we create under Clause 70 will have a broader scope than those currently created under Section 75. The provider selection regime will include public health services commissioned by local authorities, thereby recognising their role as part of joined-up health services delivered for the public. While we always want to act in the interests of people who use our services, our regime recognises the reality that in some cases integration, rather than competition, is the best way to achieve this for the health service. Finally, removing the section and creating a new bespoke regime, is—despite the scepticism of the noble Lord, Lord Warner—what the NHS has asked for. There is strong public and NHS support for scrapping Section 75 of the 2012 Act—

[Lord Lansley (Con)]

I am sorry—it is getting late—but will my noble friend at least, at some point, tell us: did Ministers ever challenge the NHS on whether what it was asking for required primary legislation? Did they ever ask, “What are you trying to achieve?”—and then let us, the Government and Parliament, who actually pass the legislation, see how it should be achieved? Or has Parliament in practice now become merely the cypher for the NHS?

[Lord Kamall (Con)]

I take the point that my noble friend makes, and I completely understand the concerns; that is why it is important that I take many of the concerns raised today back to the department.

Clause 70 inserts a new Section 12ZB into the NHS Act 2006, allowing the Secretary of State to make regulations. I have a lengthy explanation here but, frankly, I am not sure that it will pass muster. If noble Lords will allow me to go back to the department—I may be a sucker for punishment, but I accept the concerns and I will go back—

[Lord Warner (CB)]

Would the Minister like a few of us to go along to the department with him?

[Lord Kamall (Con)]

As the noble Lord will recognise, when I was appointed to this job, I did say that I wanted to consult as many previous Health Ministers as possible, as well as people who have worked in the field. It is clear from this debate that more consultation and discussion are needed, so I would welcome noble Lords’ advice. On that note, I beg that Clause 70 stand part of this Bill and hope that the noble Lord will withdraw his amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the hour is late. We cannot have the extensive debate that we probably require. I shall be very brief. I should have declared an interest as president of the Health Care Supply Association, the NHS procurement professionals.

On social value, I am very grateful to the Minister because he said that guidance will be issued to the health service on this, which is gratifying. On social enterprise, my noble friend Lord Howarth, the noble Lord, Lord Warner, the noble Baronesses, Lady Bennett and Lady Walmsley, and my noble friend Lady Thornton of course, all referred to the value of social enterprises. The Minister is not convinced that we need to put anything in the Bill. The point I need to put to him is this: it is clear from intelligence from the health service what the people running what I call the shadow ICBs want. I do wonder what we are doing legislating when obviously, everything is up and running; it is very difficult to know why we are here tonight debating these issues. Clearly, the NHS wants it, so it has got it and it is Parliament’s job, presumably, to just legitimise what it is already doing.

Having said that, these integrated care boards believe that social enterprises are not to be invested in in the future. So, my appeal to the Minister is this: fine, do not put it in the Bill, but please get a message out to the 42 ICBs telling them not to be so silly as to think that they should carve social enterprises out of the new regime.

More generally, on procurement, it is very interesting to be debating with the noble Lord, Lord Lansley. We fought tooth and nail for days on Section 75 of the 2012 legislation. Along come the Government, now saying, “Oh, we’re going to get rid of it. We don’t know what we will replace it with, but it is all right because we can have some negative regulations which mean we can steam it through without any scrutiny apart from a desultory debate as a dinner-break business sometime in the future. Oh, and by the way, there’s procurement legislation coming along too, but we can’t tell you what will be in there.”

Somehow, between now and Report, collectively we need to find a way through. I confess to the noble Lord, Lord Lansley, that I am rather pleased to see Section 75 go. However, something has to be put in its place, or we will just leave the NHS to get on with it and await future regulations and legislation. One thing for sure is that the idea of leaving the Bill with Section 70 and not even accepting the noble Lord’s sensible suggestion of the super-affirmative procedure is quite remarkable, and clearly it will not run. Having said that, I beg leave to withdraw my amendment.

Amendment 93 withdrawn.

Amendments 94 to 101 not moved.

Amendment 101A had been withdrawn from the Marshalled List.

Amendments 101B to 105 not moved.

House resumed.

House adjourned at 10.17 pm