Health and Care Bill

(Limited Text - Ministerial Extracts only)

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

[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.

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[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.

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[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.

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[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.

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[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.