Wednesday 26th January 2022
(2 years, 10 months ago)
Lords ChamberHealth and Care Act 2022 View all Health and Care Act 2022 Debates Read Hansard Text Amendment Paper: HL Bill 71-VI(a) Amendments for Committee (Supplementary to the Sixth Marshalled List) - (26 Jan 2022)
Baroness Altmann (Con)
Can I briefly ask my noble friend whether part of the thinking behind the current wording might be that the remit of the CQC may need extending? For example, when it comes to private operators of social care, the CQC currently does not have the power to look at the financial stability of those operators. Is this provision perhaps based on the thought that the Secretary of State may need to widen the remit and powers of the CQC? If not, we will be returning to this at some point.
Earl Howe (Con)
My Lords, I thank my noble friend Lord Lansley for bringing this debate before the Committee. He has made some worthwhile points but I hope to be able to explain why I think his amendments should not be pressed.
My noble friend Lady Altmann is not quite right in what she suggested was the intention of Clause 26. Clause 26 will allow the CQC to look across the integrated care system to review how integrated care boards, local authorities and CQC-registered providers of health, public health and adult social care services are working together to deliver safe, high-quality and integrated care to the public. That will include the role of the integrated care partnership. These reviews serve several functions. They will provide valuable information to the public, help drive improvement, and review progress against our aspirations for delivering better, more joined-up care across the system.
These amendments would remove the requirements on the Secretary of State to set and approve the priorities for these reviews. They would also remove the Secretary of State’s ability to direct the CQC to revise the indicators of quality that it will determine for these reviews. Instead, the amendments would add a requirement on the CQC to consult on those indicators with the Secretary of State, prescribed persons and other persons considered appropriate.
I entirely see where my noble friend is coming from as regards the CQC’s independence, but I must tell him that we have thought about this issue very carefully and we think it is right that the Secretary of State, who is accountable to Parliament, should have the flexibility to set the overall strategic direction of these reviews, with priorities and objectives. That is not an open-ended facility. In the other place, we accepted an amendment to develop this further by making it clear that the priorities set by the Secretary of State must relate to leadership, integration, and quality and safety. The amendment would remove that certainty.
As I have already mentioned in previous debates, there will be quite a range of different forms of accountability and oversight within the system, including NHS England’s role in overseeing ICBs. As a result, we think that the Secretary of State should play a strategic role to ensure that the CQC reviews complement the other oversight and accountability mechanisms. This will be achieved, in part, through the Secretary of State’s approval of the quality indicators. To provide my noble friend with an analogy, we believe, as I am sure he does, that there is a proper role for the Secretary of State in setting the strategic direction of NHS England. He does this, of course, through the mandate.
Finally, the drafting of this clause is not an accident. It is drafted deliberately to protect the independence of the CQC in how it operates, while also encouraging consultation and collaboration. It will allow the CQC to develop its approach in collaboration with NHS England and other partners in the system. The CQC is already intending to develop its approach to these reviews co-operatively and is able to consider a wide range of views in doing so. We do not think it is necessary to require it to consult.
I hope this has given my noble friend some reassurance as to why we have taken the approach we have and, for these reasons, I ask him to withdraw his amendment.
Baroness Walmsley (LD)
My Lords, I will be as brief as I can. I have a few words about some of the amendments in this wide-ranging group.
Amendment 243 would protect the title “nurse”. I know from family members that the qualification of registered nurse is always hard won, the result of very hard work. It involves rigorous basic training, often followed by further training in a specialty such as mental health nursing or surgery. The title provides a high level of trust among patients and the general population, because we know that a nurse must be registered with the Nursing and Midwifery Council, or a different responsible body for dental or veterinary nurses. There should therefore be clarity about who can use the title, and it could be sorted out very simply by the Minister—I hope he will do it.
A further anomaly, which the Minister can easily sort out in his reply, is that of the appointment of surgeons. I hope he will remove that anomaly as well.
I commend the work of my noble friend Lord Sharkey on rare diseases. I will not repeat what he said about what is needed, but I hope the Minister can give him some assurance.
I strongly support Amendment 266 on the need for a register for those who practise aesthetic non-surgical interventions. I will not repeat what my noble friend Lady Brinton and others have said about the reasons for this.
Amendment 293 requires a special register for cosmetic surgery. It is important that we have an up-to-date, comprehensive and rigorous method of assessing and registering the qualifications of surgeons safely to carry out cosmetic surgery. The question is: how is that done? I have received a briefing from the GMC, which tells me that it does not support the creation of a separate register for cosmetic surgery practitioners. Instead, the GMC believes that its proposal to move to a single GMC register that includes all doctors, anaesthesia associates and physician associates, and special annotation with work to develop relevant credentials, will provide additional assurance beyond that which could be provided by a separate additional register.
We are told that something better is coming down the track and that the forthcoming regulatory reform programme is intended to rationalise and streamline registration across all the UK healthcare regulators, and will allow the GMC to deliver an accessible, flexible and discretionary registration framework for all registrant groups. That is why the GMC believes that that will provide greater flexibility to develop and amend registration rules and improve its ability to innovate. Given the rapid development of new spheres of medicine and practices, such flexibility could be advantageous.
I understand that the GMC is now developing credentials with royal colleges and health education bodies, and that the first group of those is led by one on cosmetic surgery, plus four other disciplines. So, while I heartily agree with the intention of Amendment 293, I ask the Minister: when will the regulatory reform mentioned in the GMC briefing be completed? When will Parliament be able to see it and, in the meantime, how can we be assured that the current system gives the assurance on patient safety that is required?
I too support the noble Lord, Lord Hunt, on hospital catering and I too will resist giving my anecdote.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)
I thank noble Lords for their contributions and for sharing their knowledge and expertise—and, in the case of hospital food, not sharing their tales of inadequate and unhealthy food. I will try to answer as many of the questions as possible but, given the experience of the noble Lord, Lord Patel, of being advised by a nurse Whip, I am keen to make sure that I do not suffer those same warnings, as it were.
On rare diseases, specifying requirements in the way proposed by the amendment would restrict the ability of the CQC to collaboratively develop its assessments of integrated care systems. However, the Government are committed to improving the lives of people living with rare diseases. The noble Lord, Lord Sharkey, rightly talked about the UK Rare Diseases Framework that we published in January 2021, which set out our key priorities for tackling rare diseases. England’s action plan will be published at the end of next month.
I have had conversations with some in the life sciences industry who are keen on the fact that we are focusing on rare diseases and extremely rare diseases, and see that as a positive. One of the things that we are trying to do across government is to make sure that we are seen as a hub for expertise in rare diseases and especially rare diseases. One of my predecessors as a Minister suffered from a rare disease. The momentum is still there in the department to make sure that we tackle the issue.
Also, the CQC, through its ICS assessment methodology, will seek to understand how system leaders are monitoring and meeting the needs of the local population, including those with rare diseases. We expect the CQC, in collaboration with system partners, to use its experience as the independent regulator of health and adult social care in England to develop an approach to those reviews. I know that noble Lords may be tired of hearing this but it is important that the legislation allows the CQC flexibility to do so.
On Amendment 240, while the Government have sympathy with the need to raise awareness, we do not consider it appropriate to put such a requirement into primary legislation. I hope I have reassured the noble Lord about our programmes and our push to raise the profile of rare diseases and extremely rare diseases. We prefer that all healthcare professional regulators require professionals to have the necessary skills and knowledge to practise safely, including awareness of rare conditions. It is the responsibility of the regulators to determine what specific role they should play in raising awareness of rare and less common conditions.
On—and I apologise if I mispronounce this—liothyronine and the power of direction, the NICE guideline on the assessment and management of thyroid disease, as the noble Lord acknowledged, does not recommend liothyronine for primary hypothyroidism. NICE states that there is not yet enough evidence that it offers benefits over levothyroxine monotherapy, and its long-term adverse effects are uncertain. If new evidence was to emerge, I am sure NICE would consider it.
In addition, we must be careful not to override NICE guidelines. But, given the concerns raised by the noble Lord, Lord Hunt, and my noble friend Lord Borwick, I would like a further conversation, if that is okay, to see what can be done in this area, as well as where it is appropriate for me to act and what conversations would be appropriate, given the noble Lord’s experience as a Health Minister.
On Amendment 178, we are committed to further strengthening the innovation metrics and to improving our understanding of how innovative medicines and these products are used in the NHS. Noble Lords will be aware that following the publication of the final report of the Accelerated Access Review, the Government established the Accelerated Access Collaborative—AAC—last year. In fact, last year alone we helped over 300,000 patients access proven innovations, resulting in 17,000 fewer hospital admissions and 140,000 fewer days spent in hospital.
As noble Lords are aware, we published our ambitious Life Sciences Vision, which laid out our priorities. We want to make sure that the NHS is seen as a partner in innovation and that research is embedded into everything the NHS does. I know that this has been raised in relation to other amendments. We are currently developing implementation plans for delivering on these commitments.
As noble Lords acknowledged, NICE is in the final stages of the review of its methods and processes, and is proposing a number of changes that will introduce real benefits to patients, including rare disease patients. The Government are also committed to developing an innovative medicines fund, which my noble friend referred to, and a consultation on detailed proposals for the fund closes on 11 February.
Finally, our rare disease framework outlines the key priorities for rare diseases in the UK over the next five years. One priority area is to improve access to specialist care, treatments and drugs.
On hospital food, although we recognise the expertise and declarations of the noble Lords who spoke, we believe that this amendment is unnecessary because the issues are already covered, either as part of the ongoing work to implement recommendations from the hospital food review or in the NHS food standards document, to be published in spring 2022.
The Government are supporting NHS England to implement the recommendations from the independent review. These recommendations cover a broad range of issues, including nutrition, hydration, healthier eating and sustainable procurement. It is important for me to learn more about this as a Minister, given what the noble Baroness, Lady Barker, said about many people not receiving the recognition they deserve. It would be appropriate, perhaps, for us to meet and follow this up.
In addition, the Government already have sufficient legal powers and obligations to enable them to consult on proposed food standards, and we have engaged with NHS trusts, the food standards and strategy group, and the NHS food review expert group through the NHS food review. We will continue to do all this.
On Amendment 264, the regulations already allow trusts to seek alternative members to contribute to the process. They can be from colleges such as the Royal College of Surgeons of Edinburgh, the Royal College of Physicians and Surgeons of Glasgow and the Royal College of Emergency Medicine. However, the Government agree that the changes proposed by noble Lords in Amendment 264 would potentially be advantageous —to put it that way—and we have undertaken to review the situation with officials.
The National Health Service Act 2006 stipulates that consultation with affected parties must be undertaken before any changes are made. Therefore, before we jump to it and agree, we are required to consult the relevant parties. It does seem a clear-cut case, but we are still under a duty to consult.
Lord Patel (CB)
My Lords, the Minister suggested that, to have any changes in the appointment of surgeons, the department would have to consult first. I assume that the only body it would need to consult is the Royal College of Surgeons, which I understand is sympathetic to the change. If that is the case, it is a simple matter, so can it not be consulted before Report?
Lord Kamall (Con)
If it is as straightforward as the noble Lord suggests, I will see if that can be done.
Baroness Wheeler (Lab)
My Lords, I thank noble Lords for their many expert and very informative contributions. It has been a fascinating debate on a number of issues.
On specialised care services and rare diseases, I note the Minister’s comments and thank him for some of his reassurances, but there were some issues that he did not cover, particularly in relation to my noble friend’s Amendment 178. However, I welcome the dialogue that is taking place on these issues, and the recognition of their complexity, and am very hopeful that that will continue. We will take stock to see if anything else needs to come back on Report. I also thank my noble friend Lady Pitkeathley for her support on this issue.
In the general debate, noble Lords will, I am sure, follow up on the points that they made, as the noble Lord, Lord Patel, just did. I thought the contributions of my noble friend Lord Hunt and the noble Baroness, Lady Barker, on the hospital food situation, really drove home the importance of this issue. We must make progress on it and move forward.
On the title “nurse”, strong support was expected and we certainly got it from across the House. I hope that progress can be made. The issue will not go away, as the Minister knows, and neither will the determination of my noble friend Lord Hunt to pursue the issue of the availability of T3 for thyroid patients. We hope that progress can be made on that, because again it is a situation that a must be addressed.
The noble Baronesses, Lady Masham and Lady Brinton, and other noble Lords made valuable points on the vital need for a licensing regime for non-surgical cosmetic procedures, again underlining the need for urgent, step-by-step progress, and demonstrating in particular why the current situation is unacceptable. Progress can be made. As the noble Lord, Lord Lansley, pointed out, it was seen in the recent Private Members’ Bill on Botox fillers. We need progress to be made, and steadily.
Finally, on the reference to when the review of the regulatory system will be completed—the noble Baroness, Lady Walmsley, also raised this—the issue was about timescales. We know there is a review. We are told that KPMG is on the case and has delivered its report, but we need timescales and action as soon as possible.
With those comments, I beg leave to withdraw my amendment.
Baroness Thornton (Lab)
I thank my noble friend for tabling these amendments; I have added my name to both of them. They are about transparency and legitimacy, raising very important questions which the Minister needs to answer.
I go back to what the noble Lord, Lord Lansley, said at Second Reading, which I think my noble friend referred to. He said that
“we have new provider collaboratives which, in fairness, is where the power in the NHS will lie. The Bill makes no provision for them in terms of transparency, openness or accountability.”—[Official Report, 7/12/21; col. 1789.]
I do not need to say any more than that. The Minister needs to answer that question, because it needs to be resolved before the Bill completes its passage.
Earl Howe (Con)
My Lords, I am grateful to the noble Lord, Lord Hunt, for bringing us back to the subject of place-based structures and taking us into the issues relating to provider networks. I hope it will be taken as a given that the Government have sympathy with the intentions behind his amendments.
On Amendment 165, we absolutely agree on the importance of place, and I hope I can provide the Committee with reassurances on that score. First, the linchpin to the accountability issue is, I suggest, the ICB constitution, which is required to set out how its functions will be discharged. That may include how functions will be carried out by committees and sub-committees, which will include place-level committees. The best size for an ICB area varies according to local circumstances, and some of the smaller ICB areas are coterminous with the local authority. In those systems, place arrangements will quite rightly look very different from the large ICB areas.
ICBs need to be clear about the expectations and roles of place-based structures, including what they are responsible for commissioning, what powers have been delegated to them, and what resources they are responsible for. The current legislation provides for the ability to establish place-based structures and set them out clearly in ICB constitutions. However, Frimley is not Cumbria, and Essex is not Manchester. We want to give ICBs the flexibility to determine structures that work best for them. To help them do that, NHS England has the power to issue guidance to ICBs on the discharge of their functions, and is working with CCGs and the current non-statutory ICSs to develop model constitutions for the future ICBs. Those constitutions will, of course, also have to be approved by NHS England before the ICB is established. This approach should achieve the right balance, because it allows us to support ICBs to develop, without the danger of putting in place further legislation which could act as a barrier to future evolution. Requiring the establishment of a separate place-based board is simply not necessary and would come at a bureaucratic cost.
I turn to Amendment 166. I appreciate the noble Lord’s concern about transparency and accountability for groups of providers working together where they are exercising functions that an ICB has delegated. I shall come on to the concern expressed by my noble friend Lord Lansley, about the purchaser/provider split. Provider collaboratives are intended to deliver the benefits of scale, with providers working together to implement best practice and reduce variation in access, experiences and outcomes for patients and populations. For example, this could involve sharing workforce and managing capacity on a wider scale. Depending on the local circumstances, such arrangements may include a delegation of ICB functions. ICBs and providers should have the flexibility, in line with guidance that will be issued by NHS England.
Baroness Thornton (Lab)
Has the Minister actually seen the model constitution that will be imposed by NHS England, and does it do what he is suggesting it does? Maybe the rest of us could see it, too.
Earl Howe (Con)
My understanding is that it is work in progress—so no, I have not seen it.
Baroness Thornton (Lab)
Is it not then unsatisfactory that we should complete the passage of the Bill without having sight of the constitution, so that we can be assured that the assurances that the Minister is giving us will in fact work?
Earl Howe (Con)
I do not think that is a reasonable ask by the noble Baroness, if I may say so. I am trying to describe a structure that should deliver what I am sure she wants to see—safeguards and good pointers for ICBs to make their own decisions, while also ensuring that some of the pitfalls mentioned in the debate are not fallen into. If I can let her see the work in progress, I shall certainly be glad to do so—I do not have a problem with that—but I suggest that it is not necessary for her to do that to accept the proposition that I am trying to put forward.
As I have mentioned, the Bill requires an ICB to set out in its constitution how its functions will be discharged, including any arrangements to delegate functions to provider collaboratives. Furthermore, as an additional safeguard, the Secretary of State may impose conditions on the exercise of the power through regulations.
Baroness Tyler of Enfield (LD)
Before the Minister sits down, is he in a position to answer the question I asked about the timing of the review regarding the position of GPs within this new set of arrangements?
Earl Howe (Con)
I shall need to write to the noble Baroness about that timing because I do not have it. I meant to say that I was grateful to the noble Lord, Lord Stevens, for his intervention on the way in which we hope that primary care will be better built into the commissioning arrangements than it has been up to now.
Lord Hunt of Kings Heath (Lab)
My Lords, I am grateful to the noble Earl and to the noble Baroness, Lady Tyler, for her helpful interventions on primary care, which were very important.
In essence, the noble Earl said that we should be reassured because, either through the constitution of the ICB or through the more general guidance given out by NHS England, appropriate accountability and monitoring arrangements will be put in place. I accept that, but there are questions about the guidance and the constitution which mean that we may well want to come back. I think it would be appropriate for Parliament to give some oversight approval to that.
We are a bit jaundiced about NHS England guidance because we still cannot get hold of the guidance put out 10 or so days ago about the make-up of ICBs and the new timetable, which I mentioned on our previous Committee day. It is on something called nhs.net but not even our Library can get hold of it because there is a security wall around it, and I do not understand why it has not been put into the public domain. That is why we are a bit wary of any guidance that is going to be put out. I cannot resist saying that I hope the guidance is not going to say that local authority councillors cannot be on the place-based committees, because that would be a mistake. It could be helpful in some places for them to be so appointed.
On the more general issue of purchaser-provider tension, we have had a really interesting debate. The noble Lord, Lord Lansley, said that every Secretary of State apart from Frank Dobson, of blessed memory—my first ministerial job was serving under Frank before he was persuaded, if that is the word, by Tony Blair’s persuasive skills to go and fight Ken Livingstone for the mayorship of London—believed in it.
The point is that, whatever you call it, there is clearly going to be a relationship between the organisations of the NHS that have the dosh handed out by the department and those organisations that provide the services. There is going to be an unnecessary tension and an issue of accountability and monitoring. The puzzle that some of us have is how that is going to work within the integrated care boards when the big providers are sitting around the table. I think the clue was given in the Health Service Journal, which said:
“In the minds of most acute trust chiefs, it is provider collaboratives and groups, and not integrated care boards that will wield the greatest influence”—
an interesting phrase. I suspect the real dynamic is going to be between those collaboratives and the chair and chief executive of the integrated care board, while the board itself, which looks as though it is going to be very large, will be the legitimiser of those discussions and tensions. Still, it is a bit of a strange beast.
The noble Lord, Lord Stevens, raised the issue of CCGs and the fact that, because they were essentially membership organisations of GPs, they could not do the nitty-gritty of managing the contracts, which in the end was kind of half-devolved down to them but with accountability held at the NHS England level. That illustrates the problem of having providers and commissioners around the same table. For very good reasons people want to encourage them to integrate, but that poses its own challenges.
I think it is inevitable that we are going to come back to this issue. This has been a very good debate and I am most grateful. I beg leave to withdraw the amendment.
Baroness Thornton (Lab)
My Lords, I am nearly convinced that I should have put my name to the opposition to Clause 39 standing part of the Bill.
We have had a very informed and interesting debate which comes to the heart of the balances of power that the Bill seeks to change. My noble friend Lord Hunt set out concerns over Clause 39, which gives general powers of direction to NHS England. Amendments 174A, 174B, 175A, 176A and 175 seek to mitigate the power and to put in safeguards. This is very much in tune with concerns expressed across the Committee, by the Delegated Powers and Regulatory Reform Committee, and by the Constitution Committee. Our amendments stop short of that from the noble Lord, Lord Lansley, and the noble Baroness, Lady Walmsley, but theirs is a more elegant solution in many ways. However, the Minister will need to explain why some powers of direction are required, and we on these Benches will listen very carefully indeed.
This is all part of the balance between the responsibilities of the Secretary of State, especially to Parliament, and the powers the Secretary of State has to enable them to discharge their duties. If there is a clear and consistent solution to this, we have yet to hear it. In a way, we are repeating debates we have already had in Committee. The Bill has been severely criticised as a clear and disturbing illustration of disguised legislation, and it will need to be changed. We will need to move on to proper talks about how to do that.
On whether Clause 64 should stand part of the Bill, the issue is a different one. The 2012 Act introduced the formal notion of NHS bodies having autonomy, and since 2003, foundation trusts have had some degree of at least theoretical autonomy. But in the years of austerity a lot of that has gone, and all trusts of all kinds are simply struggling to manage day by day. It may have been the noble Lord, Lord Stevens, who observed that the difference between a trust and a foundation trust was a distinction without a difference. For some years, the process of managing foundation trusts has been the same as for trusts.
We have been hearing in our recent deliberations about local flexibilities. Our scepticism about this has been strong, because it appears—and this group of amendments addresses this—that any flexibility will be as great as NHS England permits. Let us not reject autonomy. Why remove the duties to promote autonomy? Why not replace them, for example, as the noble Lord, Lord Mawson, said, with a duty around subsidiarity and localism?
I will not repeat what was said by the Constitution Committee, but it was very critical of the powers that the Secretary of State seeks to take. Indeed, I raise a different issue: the fact that I thought NHS England was undertaking implementation of the Bill before it has finished its passage through Parliament. It is all part of the same pattern. Since we have an undertaking from the Minister to respond to that concern, we will look for an undertaking from him to provide an explanation and perhaps further discussion about why he wants autonomy removed from the Bill.
Lord Kamall (Con)
I thank all noble Lords for their amendments and for challenging the issues around the power of direction. We believe that we must have the right framework for national oversight of our health system. Following the merger of NHS England with Monitor and the Trust Development Authority, NHS England will be one of the largest arm’s-length bodies in government, responsible for over £130 billion of taxpayers’ money. Without this power, we would be expanding the functions and responsibilities of NHS England without ensuring that there are enhanced accountability measures in place.
Accountability must run from NHS England to Ministers, from Ministers to Parliament, and from Parliament to the public. This is what the power of direction supports. Indeed, a number of politicians from different sides agree that if you walked out into Parliament Square and asked people who is responsible, they would expect us to have answers. Therefore, we want to make sure there is the appropriate power of responsibility.
I also want to give reassurances that we expect the situations where the Government issue directions to NHS England to be rare. Where it does happen, Ministers will of course ensure that the direction is clear, appropriate and has suitable timeframes. It is paramount that this power can be deployed quickly when required, and limiting it to specific instances, or prescribing a time limit as to its efficacy, would undermine the intent of these provisions.
That said, we agree it would be inappropriate to use this power to intervene in clinical decisions, and we have specifically exempted this in the Bill. For example, we have made sure that a direction cannot be given in relation to drugs, medicines or—interestingly, given our previous discussions—on treatments that NICE has not recommended or issued guidance on. The noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, rightly questioned the draft guidance that NHS England has given—we are trying to find a copy of that. However, we recognise the unique role the Secretary of State for Health and Social Care plays in the system. The Secretary of State could use the powers to request to see the guidance developed by NHS England before it is published, to ensure that NHS England is working effectively with other parts of the system, such as local authorities, given the concerns that both the noble Baroness, Lady Thornton, and the noble Lord, Lord Hunt, raised.
On Amendments 176A and 174A, we have already included a number of exemptions to the power of direction in the Bill to ensure the Secretary of State is not able to intervene in day-to-day operational matters. There is also no intention that the power will be used to direct NHS England on procurement matters. Any decision to exercise the power will be subject to and guided by general public law principles and general statutory duties. This means, for example, that Ministers will have to use regulations where they exist, as they do for procurement, and that the Secretary of State cannot direct NHS England to breach procurement regulations, since this would be unlawful.
In relation to allocations to ICBs, NHS England uses a formula to allocate NHS resources to different parts of the country based on long-standing principles of equal opportunity of access for equal needs and informed by the independent Advisory Committee on Resource Allocation. There is no intention to use the power to interfere in this process.
In relation to local organisations, I make the point that the Bill will provide more practical autonomy at a local level by strengthening local leadership and empowering local organisations to make decisions about their population, while also allowing for national accountability. This is the approach we want to take with this power: directing NHS England only on the functions it holds in respect of local bodies, to provide necessary support and assistance to them, especially if they are failing. It is also vital that a power of this nature is accompanied with appropriate safeguards and transparency requirements.
On Amendment 174B, which relates to public interest, the clause already ensures that all directions must be made in the public interest.
On Amendment 175A, the noble Lord, Lord Hunt, has called for directions to be laid in Parliament. It is already the case that any direction issued must be made in writing and will have to be published. This will allow Parliament to hold Ministers to account for use of this power.
On Amendment 175, Ministers already work in partnership with NHS England, and any direction made would come after close working and considered discussion. NHS England will continue to make the vast majority of its decisions without direction, consulting the Government as it needs to. We believe that this power provides additional transparency by ensuring that where Ministers direct NHS England, it is clear, published and available for scrutiny by all. Any direction will come after a considered discussion with NHS England and advice, including on the impact and deliverability of such a direction. Ministers will of course consider, with NHS England and others, that the priorities being set are the right ones and whether they are affordable. However, it is important that we do not put in place too bureaucratic a structure that would bind Ministers’ hands when decisions have to be made quickly.
I end by addressing the questions put forward by my noble friend Lord Lansley and the noble Baroness, Lady Walmsley, about Clauses 39 and 64 being removed from the Bill. Clause 39 is part of our ambition to put increased accountability for the Secretary of State at the heart of these proposals while committing to the NHS’s clinical and day-to-day operational independence. We reiterate that the power will add to the existing ways that the Secretary of State and NHS England work together. The mandate to NHS England, which has been an established means of providing direction since 2013, will continue to be the main place for strategic direction-setting.
Lord Warner (CB)
Before the Minister answers that question, could I add another? We have had 10 years’ experience of NHS England under three chief executives and a number of different chairmen. Can the Minister give any examples of where the powers the noble Lord, Lord Lansley, gave the Secretary of State have been inadequate for them to give direction to NHS England?
Lord Kamall (Con)
The Secretary of State cannot issue a direction to CCGs or ICBs on any of this using this power. We have been clear that direction cannot be given in relation to drugs, medicines or on treatments that NICE has recommended or issued guidance on. I gave the example of where we want this guidance—with the draft guidelines published for ICBs. The Secretary of State would be able to intervene and ask to see that guidance—
Lord Lansley (Con)
I am sorry to interrupt my noble friend again but let us be clear: the Secretary of State would be asked to give a direction in line with NHS guidance. There is nothing in the exception in Clause 39 which says that the Secretary of State cannot give such a direction.
Lord Kamall (Con)
If my noble friend will allow me, I will have to consider that and write, and make that available to all noble Lords.
We have included a number of exceptions to the power of direction in the Bill to ensure that the Secretary of State is not able to intervene in day-to-day operational matters. For example, there is no intention to use the power to direct NHS England on procurement matters.
On Clause 64, the rationale for removing these duties is twofold. First, the pandemic has highlighted the importance of different parts of the health and care system working together. The clause removes some barriers in legislation that hinder collaboration between system partners. It facilitates collaboration between NHS England and system partners and enables broader thinking about the interests of the wider health system. Secondly, removing the Secretary of State’s duty to promote autonomy will put increased accountability at the heart of the Bill.
Overall, these clauses encompass flexibility, allowing Ministers to act quickly and set direction, while balanced with safeguards and transparency requirements to ensure that they can be held to account. I understand that there are a number of concerns about this group of amendments and others. I am sure we will have a number of discussions, but in the meantime, I ask noble Lords not to press their amendments.
Lord Hunt of Kings Heath (Lab)
My Lords, this has been a very significant debate, because when the Minister referred to the fact that Ministers needed to have the answers, I realised that the intention is to go back to command and control from the centre. It was quite clear: that is the intention. I think that is very depressing, because I do not believe that the NHS is going to benefit at all. When he said that this will strengthen local accountability—oh no, it will not. There is no local accountability whatever in this structure. I am sorry to say this again, but the fact that the Government are taking local authority councillors out of ICBs is a visible demonstration that this is a centrally driven health service from the Department of Health.