NHS England: Health and Social Care Act 2012

Baroness Armstrong of Hill Top Excerpts

Wednesday 7th May 2014 Lords Chamber

[Earl Howe]

My Lords, we are not happy with that and, as I have said in the House before, Ministers have made it very clear to NHS England that this decision is both surprising and unwelcome in view of the need to maintain parity of esteem. NHS England, the NHS Trust Development Authority and Monitor are addressing this issue vigorously and we have regular discussions with those bodies to ensure that mental health services do not suffer.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, I wonder whether the Secretary of State now regrets supporting those aspects of the Bill—now an Act— that put him at a distance from interfering in the National Health Service and its agencies. Will the Minister nudge his colleague the Secretary of State to show that the level of micromanaging he is indulging in disempowers and disables the very people and organisations that his legislation put in charge?

Alcohol: Calorie Labelling

Baroness Armstrong of Hill Top Excerpts

Thursday 13th March 2014 Lords Chamber

[Earl Howe]

My noble friend may like to know that, in fact, 125 companies have pledged, under the responsibility deal, to help people drink within the guidelines. Perhaps the most significant pledge that has been made is the one by more than 30 alcohol retailers and producers to remove 1 billion units of alcohol from the market—around 2%—by the end of 2015. Companies, pub chains and retailers have also made a whole range of other pledges. We are making significant progress in this area.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, I wonder whether the noble Earl is aware of quite how much this costs the NHS. Abuse of alcohol is very damaging to families and to individuals but also costs the NHS a fortune. Is it not about time that we, and the Government, took responsibility by backing the consumer, the patient and the taxpayer rather than siding with the drinks companies? Is it not about time not only for labelling, as my noble friend has called for, but for a minimum pricing policy?

[Earl Howe]

The noble Baroness raises a number of areas. We believe that this issue can benefit from action on a number of fronts. One of them is the responsibility deal to persuade the industry to take voluntary action. We are making significant progress in this area. Of course, the other is behaviour change by individuals and the choices that people make. Ultimately, people need to take control of their own behaviour, and the Chief Medical Officer is currently overseeing a review of the alcohol guidelines so that people can make informed choices about their drinking at all stages of their life.

Health and Social Care Act 2012: Risk Register

Baroness Armstrong of Hill Top Excerpts

Wednesday 4th December 2013 Lords Chamber

[Earl Howe]

My noble friend is quite right. We can all look forward to the publication of that thorough report.

[Baroness Armstrong of Hill Top (Lab)]

My Lords, if the reforms are going so well, why does the Secretary of State, who now presides over an Act that said that the health service would be at a long arm’s length from Ministers, now see the key people in the health service at least once a week? Why does he take it upon himself personally to interfere in ways that during the passage of the Bill the Minister here told us very clearly Ministers would no longer be doing?

[Earl Howe]

The noble Baroness would have cause to complain if, in accordance with the debates that we had in this House on accountability, my right honourable friend did not hold the NHS to account on some of the areas of its activities where there were concerns. That is exactly what he does, and he does it quite properly.

NHS: Keogh Review

Baroness Armstrong of Hill Top Excerpts

Tuesday 16th July 2013 Lords Chamber

[Earl Howe]

I know that this is a concern of the noble Baroness and I understand that. She will know that work is going on to try to frame better rules of thumb and guidance on staffing numbers. When Sir Bruce looked at this area he had very closely in mind the precept that Robert Francis gave in his report when he said:

“To lay down in a regulation, ‘Thou shalt have N number of nurses per patient’ is not the answer. The answer is, ‘How many patients do I need today in this ward to treat these patients?’ You need to start, frankly, from the patient, as you do with everything”.

That was the basis of Sir Bruce’s assessment on that issue.

[Baroness Armstrong of Hill Top]

My Lords, will the Minister acknowledge that Sir Bruce Keogh made it absolutely clear that over the past decade there has been significant improvement in mortality rates across the National Health Service? He said that, because of the increasing complexity of the patient, that improvement is probably greater than the 30% that is measurable. Will he therefore congratulate those hospitals—the vast majority—that have led the improvement? At the same time, of course, we must tackle poor performance and make it clear that that is unacceptable. However, in doing so we have also to acknowledge the significant improvement that has happened over the past decade.

[Earl Howe]

I applaud that and we should all celebrate the success of outstanding hospitals—there are many in the health service—which have led the way in improving mortality rates over the past few years. The noble Baroness is quite right. Indeed, Sir Bruce suggests that those hospitals should now be asked to partner with some of the hospitals that are struggling in certain respects to show the way, whether that is on governance, on systems in A&E, on quality of surgical outcomes or whatever it happens to be. That is an appropriate idea, and we should undoubtedly ensure that it is taken forward. However, as the Statement itself reflects, the 14 hospitals that are under the microscope at the moment are not representative of the quality of care that the NHS delivers day in and day out, which is of a very high standard by any benchmark.

Health and Social Care Bill

Baroness Armstrong of Hill Top Excerpts

Monday 27th February 2012 Lords Chamber

[Lord Newton of Braintree]

Perhaps I may respond to the noble Lord from a sedentary position. I was aware of that but, to be honest, I think that we need a coherent single approach.

[Baroness Armstrong of Hill Top]

My Lords, this debate has been very interesting. I agree with the last comment of the noble Lord, Lord Newton: we need an integrated approach. I support the amendment but I do so with deep frustration. The truth is that the Bill is inadequate and contradictory, and it starts from the wrong place. What everybody wants from the Bill is an answer to the question, “How do we reform the National Health Service now to deal with the starkest view that is facing us in terms of increased numbers of people with long-term conditions?”. The past success of the health service is now keeping many more people alive and many of them will have long-term conditions for much longer. That is the single thing with which the National Health Service is going to have to deal with much more skill and integration than ever before, but the Bill makes it very difficult to do that. The noble Lords, Lord Mawhinney and Lord Newton, have made that point for us, so I shall not go on with it. We need a Bill which understands where the National Health Service needs to go and what we need to do to reform our services so that patients get the very best outcome in the most cost-effective way, given what is and will be going on in our economy for a long time to come. However, this chaotic Bill will not do that.

Health and Social Care Bill

Baroness Armstrong of Hill Top Excerpts

Monday 13th February 2012 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, I thank the noble Lord, Lord Hunt, and all noble Lords who have spoken in another excellent debate. I understand the arguments that have been put forward in favour of these amendments. It is important for me to say at the outset that the Government’s general approach is to allow the NHS Commissioning Board as much autonomy as possible in determining its own membership, structures and procedures. It is our firm view that the board is the body best placed to determine how to organise itself in the most effective and efficient way. We would not want to undermine that.

It is also worth restating that, looking across government, it is the responsibility of all departments to ensure that public appointments to arm's-length bodies are open, transparent and made on merit. However, it is not government policy for such appointments to be subject to Select Committee approval—in this case the Health Select Committee. These are ministerial appointments. The Secretary of State is ultimately accountable to Parliament for the performance of the health service as a whole, as we have made clear through amendments to the Bill. The current process under which some posts are subject to pre-appointment hearings by a House Select Committee does not represent a power of veto, which the amendment would amount to. Of course, noble Lords will be aware that we followed this process, as the noble Lord, Lord Hunt, reminded us, in the recent appointment of Professor Malcolm Grant as the chair of the NHS Commissioning Board Authority. When we discussed this last in Committee, I was pleased that the noble Lord, Lord Hunt, said that he thought that this process ensured proper and effective scrutiny of that appointment. I gently wish to hold him to that view. He raised the comparison of the Office for Budget Responsibility, saying that the NHS Commissioning Board was just as important. Importance is not the issue. The Office for Budget Responsibility has a unique role because it has dual accountability to both government and Parliament directly. The NHS Commissioning Board is accountable to government and, through Ministers, to Parliament, which is somewhat different.

I turn to Amendments 21, 21A and 22. We recognise that the Bill strikes a fine balance between giving the board as much autonomy as possible in how it operates, and providing the necessary accountability. It is important to strike that balance accurately and consistently. If we were so prescriptive in the Bill as to set out further requirements for the board's membership, we would be moving too far away from that necessary autonomy. It is right that it should be up to the board to decide whether it has a vice-chair or a senior independent director, as Amendment 21 suggests. Of course, a vice-chair or deputy chair, were they to be appointed, would have to be non-executive.

Likewise, while I agree that it will be key to the effectiveness of the board for it to involve and obtain sufficient advice and input from public health experts, and to have public health well within its purview, it would not be right to specify that it must have a public health specialist as a member, as Amendment 21A proposes. Again, I am sorry to disappoint my noble friend Lady Williams in particular, but we think that the board will be best placed to determine whether it has the right structure and range of skills, knowledge and experience appropriate to the issues that it will face. In the material that David Nicholson published he made it clear that, rather than making token appointments, he intends that clinical leadership will run right through the organisation. That is a very reassuring statement.

Amendment 22 takes the Secretary of State out of the loop of appointing the chief executive. That moves us too far away from one of the key principles that most of us have signed up to: the necessary accountability of the board to the Secretary of State. It also seems at odds with the ethos of other amendments proposed by the noble Lord, such as Amendment 19, which we debated on the first day of Report and which sought to make every other aspect of the exercise of the board's functions subject to direction from the Secretary of State.

[Baroness Armstrong of Hill Top]

My Lords, there is some confusion outside the House about the relationship between the Secretary of State, the chief executive and the other senior appointees. The chief executive’s appointment was made before there was a board and a chair, but seems to be permanent. It is very unclear what the process will be for appointing directors. Have the Government a view on the governance of those sorts of arrangements, because the governance in this case does not seem to match what people expected in other areas of policy?

[Earl Howe]

My Lords, I will attempt to answer the noble Baroness in a moment. She is right that the chief executive designate, Sir David Nicholson, was appointed before the establishment of the NHS Commissioning Board Authority. My right honourable friend felt that not only was it a sensible and good appointment, as we think very highly of Sir David—as most people do—but that it would provide continuity for the NHS. I hope that the noble Baroness accepts that it was a rational decision. As I outlined, Malcolm Grant, too, was the Secretary of State’s appointment, as was appropriate. I will probably have to come back to the noble Baroness on the non-executive directors because I am not aware of the precise timescale or mechanism for doing that, but I will enlighten her as soon as I possibly can.

The noble Lord, Lord Rea, asked me about the relationship between the board and Public Health England. Public Health England will be an executive agency carrying out functions of the Secretary of State with relation to public health. Those functions are conferred on the Secretary of State primarily through Clause 10. As regards the relationship between the two bodies, the simplest way of putting it is that they will work very closely together on public health issues. I have no doubt that there will be a number of ways in which Public Health England will commission public health services from the board in one or other of the aspects of its health protection role.

To get back to what I was saying before the intervention, the Official Opposition at one moment want the Secretary of State to be hands on and at another moment to be hands off, so perhaps I am entitled to feel a little confused about the direction that they are coming from here. The noble Lord, Lord Hunt, questioned the rationale for the Secretary of State appointing the chief executive. As I said in Committee, the requirement for the Secretary of State to consent to the appointment of the chief executive of the board is included for the very important reason that the chief executive of the board will be the accounting officer for the commissioning budget—more than £80 billion of public money—for which the Secretary of State is accountable to Parliament. It is entirely appropriate in our view that the Secretary of State should approve his or her appointment. It is quite usual for chief executives of non-departmental public bodies to be designated as the accounting officer by the department to which they are accountable.

I hope the noble Lord will agree on reflection that we have struck an appropriate balance between autonomy and accountability in the current provisions for appointments to the board and that he will be content to withdraw his amendment.

Health and Social Care Bill

Baroness Armstrong of Hill Top Excerpts

Tuesday 13th December 2011 Lords Chamber

The NHS already has a competition policy, and I pay credit to the previous Government for making important advances in this area, such as the Co-operation and Competition Panel, which was described by Ben Bradshaw, who was the Minister at the time, as the NHS’s first ever competition policy. So it was, but the previous Administration took piecemeal steps, which left gaps, confusion and ambiguity. The Bill rectifies that. Under the Bill, Monitor would at the same time continue its role as the specific regulator of foundation trusts.

[Baroness Armstrong of Hill Top]

The noble Earl knows that that part of the Bill does that only for a limited period of time. He also knows that many people involved with foundation trusts think that should be a consistent and ongoing role of Monitor. Have the Government reassessed so that that is a more complete and comprehensive approach for Monitor, signalled clearly in the Bill?

[Earl Howe]

What the noble Baroness says it quite right. It would be open to a future Secretary of State to extend the period under which Monitor retained that role. My purpose at the moment is to set out the Government’s position. I am sure we can come on to debate these things, if the noble Baroness will allow, but it is important for the Committee to have the Government’s prospectus in their minds.

The remit of Monitor would be expanded to cover all NHS-funded healthcare providers. This approach ensures that Monitor and everything that it does is governed by a single, coherent legal framework and that all its functions are bound together by a single, overarching statutory duty—the one that I read out. For that reason, I would counsel noble Lords to resist amendments that may seek to achieve similar aims, but do so by retaining a separate legal framework for regulation of foundation trusts.

Many people have sought to portray the new role for Monitor as some sort of mighty club-wielding behemoth, dictating to commissioners how NHS resources should be spent. This is not the case. Monitor’s role, as set out in Part 3, is intended to support and complement the role of commissioners, as set out in Part 2. Our aim is to empower those commissioners—GPs and other clinicians—to take the lead, arranging access to services to meet their patients’ needs and stimulating innovation and improvement. Commissioners will have various tools at their disposal to do this. They will need to decide how to use co-operation, integration and competition to improve quality or efficiency or reduce inequalities.

In that context, the appropriate role for Monitor would be to support commissioners by enabling integration and where competition is used, ensuring that this operates effectively. Monitor’s role is not—I repeat, not—to impose competition from above. Competition is not now and will not be an end in itself.

Our strategy for improving the provision of NHS services is firmly based on the principle of autonomy and accountability for providers. Building on this, we have proposed functions for Monitor that aim to strengthen incentives for providers to improve, rather than simply relying on the ability for Monitor to set and enforce rules. Promoting competition is part of this, but again the context of promoting is quite different from the idea of driving competition through top-down controls. It will not do that, and it would not be effective even if it did.

What has struck me, looking at these amendments, is that, while there are clear differences between some noble Lords and the Government, I also feel that there is a significant consensus emerging. I want to reiterate that the Government are always willing to listen to how the Bill could be improved. I have listened to the points made by the noble Baroness, Lady Thornton, but I have also studied very closely the amendments tabled by other noble Lords, particularly my noble friends Lady Jolly, Lord Clement-Jones, Lady Williams and Lord Marks, as well as the noble Lord, Lord Whitty and the noble Baroness, Lady Murphy.

I am sympathetic to a number of the concerns raised by noble Lords, which we shall hear about. I would like to highlight four at this point. The first is the Secretary of State’s ability to specify matters that Monitor must take into account. I am sympathetic to noble Lords’ concerns that we should clarify the mechanisms by which this can happen. The second is the conflicts between Monitor’s functions. It has always been our intention that Monitor should take responsibility for making appropriate arrangements within its organisation to avoid potential conflicts. However, I will explore this further with Monitor in time to provide greater clarity and reassurance before Report stage. The third area is failures to co-operate. Again, I am sympathetic to noble Lords’ concerns that Monitor should have the ability to address abuses and protect patients’ interests. We believe that the safeguards in the Bill already achieve this aim, but we will look to ensure that Monitor is properly equipped to enforce this. The final issue is reviews by the Competition Commission, where I sympathise with noble Lords’ concerns that the provisions as drafted may not yet fully reflect the revisions to Monitor’s role that were introduced in response to the NHS Future Forum.

That is all that I propose to say for now. I hope that it has been helpful for me to speak early in this debate to give some additional clarity to the Government’s intentions in this vital area of the Bill.

--- Later in debate ---

[Baroness Armstrong of Hill Top]

My Lords, I want to ask the Minister questions, although the debate tempts me into other things. I will start with the other things.

I found the debate fascinating. I have also found some of the re-writing of history fascinating. The previous Government introduced competition, and I am very proud of what the previous Government did in rescuing the health service, as my noble friend on the Front Bench said. The reality is that when we introduced ISTCs there was no pricing in the National Health Service. There were no tariffs. Nobody knew what it cost. The amount of money that the private sector charged was substantially reduced because we put a charge on it, but we had to do something to create the market. I have been extremely frustrated by the Minister saying, again and again, that we introduced preference for the private sector. We were taking the very first steps to introduce architecture which could allow the comparison that he now makes in order to get to a level playing field. However, there was nothing there that would have allowed the previous Government to introduce the architecture of a level playing field from the beginning. I remember discussions at the time with organisations such as Bupa which were really concerned that we were bringing down the amount that the NHS would pay them per patient once we introduced tariffs and pricing.

That was a significant development. It then allowed other developments to take place. Yes, it has allowed the Government to take a comprehensive look at all of this, although, as we have been reminded on occasion, the Government did not need ideologically to say that they had to completely open things up. The Government have admitted that 90 per cent of what they wanted to do could have been done without this legislation. I now suspect that the Government wish that they had never embarked on this in the way that they have done. It has actually meant that most people out there think that, following the pause, there will be no competition. Some of them will be surprised by the debate that we have been having today and, indeed, the debate that we had a couple of weeks ago.

The introduction of foundation trusts was very significant and a real revolution. It said that you had to take control in your own area and be responsible for how you were organising hospital services. That principle is very important. Given the changes that the Government are making in allowing the Secretary of State to intervene in the way that the noble Lord, Lord Newton, described earlier, can the Minister assure me that that will not mean that the Government will be tempted to, for example, raid the successful FTs to ensure that they cover up with sticking plaster those which are not succeeding and therefore not take the difficult decisions?

We are having the debate while, outside, there have been significant reports from the King’s Fund and comments from my noble friend Lord Darzi about the challenges in London. Those challenges will demand that the Government recognise that you cannot have comprehensive healthcare that works effectively, let alone efficiently, on every street corner. There will have to be places that specialise in hips and knees. The noble Lord, Lord Ribeiro, talked of the efficiency of ISTCs. Although it is within an NHS hospital, there is what is essentially an ISTC in Epsom. The hospital, from what I read, may be having problems generally, but its unit that just does hips and knees is now the most efficient in Europe, if not the world. It has done incredible things to make it so, such as buying a taxi firm so that it can ensure that it gets people there and so does not lose any slots. That, of course, helps with efficiency.

We are going to face very different challenges and the Government have to be careful that they do not introduce architecture that institutionalises the superiority of hospitals. One of my concerns about our discussion is that sometimes we reinforce the centrality of hospitals in the modern healthcare system when we should not. We ought to be embedding the centrality of the patient pathway, which is much more about the patient’s experience before they go to hospital and after they leave hospital than the period—I hope it will be shorter and shorter—that they are actually in hospital. That is where competition will play an increasingly important part. There has to be some sort of regulation of other providers but it has to be done in a way that does not reinforce hospitals. This has been the experience of Monitor to date, so is it going to be most effective to have it regulating other bits of the architecture? There needs to be regulation of the private sector and of the voluntary sector that are providing pieces of patient care. How do we do that in a way that does not reinforce hospital care?

I have been fascinated by today’s discussion of the European Union and whether the NHS will be subject to the competition law. I remember very well, as Housing and Regeneration Minister, trying to negotiate with Mario Monti, who simply did not understand that we would frequently want to give support from the public sector, but to have that matched from the private sector. That was seen as anti-competitive and a real problem. I do not want the NHS to get involved in that architecture. I would love the Minister to comment on what his colleague Simon Burns said in the Commons. Mr Burns agreed that the application of EU competition law was inevitable but also desirable. Does the noble Earl concur with his friend in the Commons?

I have also been fascinated by the discussion around how competition is to be measured and the fact that we are now going to measure competition on quality as well as price. Ideologically I support that absolutely, but I am not sure how you do it, and I want to know how the Minister intends that to happen. What is it that will be measured so that, at a local level, proper decisions that are not contestable in court are made around the wording currently in the Bill? We all want to get there but the reality is that it is very difficult to find an objective measure that will be clear about the quality of patient care. We have a long way to go in terms of getting an architecture that will deliver the health service that the majority of people want to see where the patient is at the centre of every decision. I have been impressed with the foundation trust board that I have joined in Durham and Darlington. The businessmen on the board are saying that if you get patient care right, the financial decisions will become much easier and more straightforward. I believe that but we have to be able to get there. The real problem is that the Government have got so many things confused that people out there do not see it as simple. They see it as a confused and muddled agenda that has objectives which do not look for a patient pathway that is clear and open to the patient, with the patient getting a hold of how they can be more in control of that pathway. That is where we all want to get to. I am just not sure that the Government have got us there.

[Lord Ribeiro]

Does the noble Baroness agree with me about the pricing of ISTCs? As a surgeon I had a perfectly good idea of the cost of operations in the private sector because I did private work. I also had a reasonable idea of how much it cost in the NHS. One of the principal reasons why the Labour Government introduced ISTCs was to act as the grit in the oyster to challenge the NHS to reduce its costs and to improve the quality of its care. The issue was not just that the Government did not know what the actual price was going to be.

[Baroness Armstrong of Hill Top]

It certainly was not. I do not believe that the previous Government ever acted just on price, despite what the Minister keeps alleging. The noble Lord might have known what the price was but the price in his hospital was very different from the price in another hospital. One of the problems was that there was massive inconsistency across the health service, and that was being addressed. The Government were also challenging everyone involved in healthcare to be honest about what they were doing and to put patients at the centre, making sure that they got treated more quickly—a very important issue for us and our commitment to the public—and as fairly and as well as possible. We were able to get more consistency by driving through a price mechanism.

Health and Social Care Bill

Baroness Armstrong of Hill Top Excerpts

Wednesday 30th November 2011 Lords Chamber

[Earl Howe]

I take the point but I hope my noble friend will agree that I have an answer. The crucial point is that, while we would expect the board to have a clear shared understanding of what the interests of the health service are, the Secretary of State has mechanisms over the board which he can use if necessary to clearly set out what these interests are. He can do that by setting objectives and he can hold the board to account for those. So he has other levers.

Amendment 277, also in the name of my noble friend Lady Williams, would prevent the Secretary of State from intervening in specific cases where he considers that Monitor has failed or is failing to perform its functions. We believe that it is important for the Secretary of State to be able to intervene in the event of a significant failure by Monitor to perform its functions. That intervention power does not exist at all under current legislation, and we believe it should. We do not believe Ministers should have the power to intervene in individual cases. Such a power would risk politically motivated interference and undermine the independence of the regulator. That point is extremely important.

However, there is an important exception to this rule in relation to the continuity of services. Amendments introduced in another place allow the Secretary of State to intervene in relation to proposals for securing access to services where a provider has become unsustainable. The Secretary of State would be able to exercise a veto if Monitor and clinical commissioning groups have failed to discharge their functions, to follow the proper procedures or to secure access to services.

We are clear that the wording of the clause as it stands strikes the right balance, enabling the Secretary of State to intervene when necessary to address systemic failure, while ensuring that Monitor is able to carry out its functions free from potentially time-consuming and politically motivated interventions relating to individual cases. The NHS Commissioning Board will also have powers of intervention, as set out in new Section 14Z19, to support CCGs and take action where necessary if there is evidence that they are not meeting their statutory duties or that there is a significant risk of them failing to do so.

I recognise that the intention behind Amendments 220ZAA and 220ZAB, which look to ensure that the board only intervenes in a CCG when it is satisfied that the CCG is failing, or is at significant risk of failing, is to exercise a function in the best interests of the NHS. However, as the Bill is drafted, the board can determine when a CCG is not exercising its functions properly and that is surely the better approach. We are giving the board discretion to determine when intervention is necessary, based on the terms of each statutory function that CCGs have, not in relation to a separate criterion. The amendment would actually narrow the grounds on which the board would have power to intervene, which I do not think would be at all helpful.

Finally, I would like to address the point put to me by the noble Lord, Lord Hunt, about waiting time objectives. The noble Lord implies that Ministers would be powerless in the face of waiting times. That is simply not the case. Ministers’ main weapons on this issue would be the standing rules and the NHS constitution. Current contractual requirements relating to waiting times, such as 18 weeks, are covered by the constitution through the handbook and will form a key feature of the standing rules pending passage of this Bill. If the Secretary of State wanted to act on a new waiting time issue, the option is there for the NHS constitution handbook to be revised and the standing rules updated accordingly.

I hope that I have provided enough detail on these clauses to enable my noble friend to withdraw the amendments.

[Baroness Armstrong of Hill Top]

Will there be issues around the National Health Service that Members of Parliament will not be able to question Ministers about or to get clear answers from Ministers on? I have listened very carefully to the Minister, but I am still very confused about the accountability to Parliament and what the Minister will answer questions on and what he will say is the responsibility of Monitor, the NCB or whatever.

[Earl Howe]

There are no areas that will be out of bounds to parliamentarians in the sense that the noble Baroness has said. What may happen is that the Secretary of State or other Ministers may respond directly, or in a way that draws upon advice that they have received from, let us imagine, the NHS Commissioning Board; they may quote what the board has said and say that this is the advice that they have received, or they may, as with some agencies at the moment, refer the parliamentarian to that body directly. It will vary. The main question that the noble Baroness asks is whether parliamentarians will be inhibited in some way. The answer is no.

Health and Social Care Bill

Baroness Armstrong of Hill Top Excerpts

Monday 28th November 2011 Lords Chamber

[Baroness Armstrong of Hill Top]

My Lords, I, too, am extremely concerned about the provisions within the Bill. How are the Government going to implement the policy as stated in it? Is there going to be a general expansion of the health service, so that they can change the proportions of the private and the voluntary sector? I am concerned that, even in the private sector, there is going to need to be innovation and change. Are the Government going to do that on a one-in, one-out basis? Are they going to say that there can be expansion only in those areas of the country where, at the moment, there is no private sector? Are they going to do the same regarding the voluntary sector?

If there is going to be the development of hospices, for example, we know that one key area of concern for the Government is the whole handling of end-of-life care. I think there is unanimity across this House that hospices, Macmillan nurses and so on are probably the best organisations to deal with end-of-life care. I say this through being involved with an NHS trust: the trust would not want to be taking over those areas of responsibility from hospices. Yet this provision may well mean that there can be no development of hospices in this country and that as we discover areas where there is paucity of provision there may not be the opportunity for development, because it may change the proportion. This seems madness.

[Earl Howe]

My Lords, to put completely at rest the mind of the noble Baroness and, indeed, the minds of noble Lords, I assure her that she need have no anxiety. We are coming on to a group of amendments which deal specifically with social enterprise and the voluntary sector. I shall have more to say then, but I want to reassure her at this point.

[Baroness Armstrong of Hill Top]

My Lords, I might have more to say then too. However, we are dealing with what the Bill actually says and with what the Government said at the end of the pause. They said then that the Bill would “outlaw” Ministers arguing for an increase in the size of the three sector providers—public, private or third sector. That means that they want to preserve aspects of the third sector and of the private sector. However, it also means that it freezes in aspic what is there. I do not think that is in the interests of anyone.

I ask the Minister, so that he can perhaps come forward with replies to this in thinking about the next amendment: what is going to happen to the voluntary sector and social enterprise programme that the department currently runs? It was set up to maximise the extent to which third-sector organisations were able to achieve their full potential. There is also the social enterprise investment fund, which provides investment for social enterprises to start up, grow and develop in order to develop NHS services. There are real rumours that this is being finished and that it will not continue into the future.

[Baroness Williams of Crosby]

Might the noble Baroness consider more closely the actual wording of Clause 144? It refers to the Minister not being able to choose a variation for the purpose of choosing that variation; it does not in any way rule out the possibility of choosing that variation for the purpose of providing better provision for patients. It distinguishes between a direct political purpose and the purpose of doing what we all want, which is to provide a better service to patients. A great deal of what has been said in this short debate about the effect on the voluntary sector would therefore not stand up to very close and careful investigation.

[Baroness Armstrong of Hill Top]

My Lords, that is precisely the sort of reassurance and clarity that we are seeking from the Minister. At the moment there is real anxiety out there about this; whether we like it or not, that is the reality, and it is our job to tease out exactly what Ministers mean because they have given different messages about this.

The third area that I ask the Minister to be clear about is the future of the Health and Social Care Volunteering Fund, which is important as a means of supporting volunteering in the National Health Service. All three of those aspects are currently in the Department of Health and I want to see them continue. I would like some reassurance from the Government that they will continue. That would reassure me and, I am sure, people outside that the Government will continue to see the role of the voluntary sector grow in areas where it is most appropriate for it so to do.

[Earl Howe]

My Lords, the amendments take us to the fundamental issue of who should provide healthcare services. The Government are clear that there should continue to be a mixed economy in which the public, independent and voluntary sectors should all have opportunities to contribute in improving outcomes for patients. Our policy is therefore that services should be commissioned from those providers best able to meet the needs of patients and local communities. This is consistent with the previous Government’s policy as set out in principle 1 of the Principles and Rules for Co-operation and Competition, and we believe that it is commissioners who should be free to decide who can best meet patients’ needs and offer value for money for the taxpayer within a regulatory framework that ensures transparency and protects patients’ interests.

Although that has always been the Government’s position, the listening exercise earlier this year highlighted that some people had genuine fears about the Government’s long-term intentions for the NHS. The NHS Future Forum recommended that,

“the government should not seek to increase the role of the private sector as an end in itself”,

and that additional safeguards should be brought forward, so in another place we tabled amendments to the Bill that created the provisions in Clauses 20, 59 and 144. These prevent the NHS Commissioning Board, Monitor and, when he exercises certain functions, the Secretary of State from acting with the intention of varying the market share of any particular type of provider. Removing this provision from Clause 20 and deleting those at Clauses 59, 10 and 144 would leave it open to the NHS Commissioning Board, Monitor and the Secretary of State on exercising the relevant functions to distort the market in favour of, for example, private providers. We do not think that that would be in the best interests of patients or taxpayers. I hope that that has clarified matters.

--- Later in debate ---

[Earl Howe]

My point is that either for the board or Monitor to act with a specific view to change the market share for its own sake would run counter to these provisions. However, that does not mean that the market share of the NHS, the independent sector or the voluntary sector could not change. It depends entirely on what is seen to be in the interest of patients. In a particular area of the country, one might find that there was a considerable case for increasing the share of social enterprises in order to meet the needs of patients. That would not be illegal. What would be illegal would be the board setting out with the express intention of expanding a particular sector for the sake of it. That is the distinction here.

[Baroness Armstrong of Hill Top]

My Lords, could the Government never decide that it was important to increase the share of hospices as part of palliative and end-of-life care?

[Earl Howe]

The board and clinical commissioning groups might well decide that it was important to have more hospices. The question would be: who would provide them? It might be that a charity would provide those hospices. That is fine, as long as the justification is that the expansion in market provision is there to meet the needs of patients and that it is not some covert way to boost artificially a particular sector of the market, unrelated to patient needs. That is the distinction.

The concerns that noble Lords have raised, that these clauses would make it illegal for the department to build capacity in the voluntary and social enterprise sectors, are unfounded. This is neither the intention behind these clauses, nor is it their effect. As I have said, we will debate the third sector in the next group of amendments, but I can reassure noble Lords that we will ensure that procurement practices do not unfairly restrict the opportunities for charities, voluntary organisations and social enterprises to offer health and care services. We continue to value and support the many contributions that the voluntary and community sectors play in improving health and well-being for our communities; and there are a number of ways in which we can do that in a tangible fashion. We are already doing this, and the noble Baroness listed a number of the levers that we have at our disposal. I hope that the distinction I have outlined makes sense and that it will therefore reassure noble Lords that the fears they have expressed are groundless.

--- Later in debate ---

[Lord Warner]

My Lords, I speak in support of my noble friend Lord Rooker’s amendment. I pose a couple of questions and add a couple of facts for the Minister. I will not repeat what I said on the previous group of amendments. I speak from two perspectives; first, as a former chairman of a number of voluntary organisations competing for public service contracts; and, secondly, as the former Minister involved in the setting up of entities at the centre to facilitate the growth of social enterprises and voluntary organisations to participate in NHS service provision.

I want to mention some of the things which were set up at the centre because you could not rely on people at local level to actually provide this kind of help to the voluntary and social enterprise sector. Can the Minister say whether these initiatives will continue in this brave new world we are going into? The first one was the Department of Health voluntary sector and social enterprise programme, which was set up to maximise,

“the extent to which third sector organisations are able to achieve their full potential”.

That was a central unit aiming to help people to develop their capacity. There was the social enterprise investment fund, which provides investment to social enterprises to start up, grow and develop in order to deliver NHS services. The third I would mention is the health and social care volunteering fund—both the local and national programmes—which supports volunteering in health and social care.

Those are three areas where an initiative had to be taken well away from the local level to ensure there was some capacity building of social enterprises and voluntary organisations. If those are disbanded in the guise of leaving it up to clinical commissioning groups, it is very difficult to see how those sectors will be able to participate.

Now briefly, I turn to my experiences as a chairman of voluntary organisations. Voluntary organisations simply do not have the capacity to go at risk for entry into new markets without some guarantees. They often do not have the working capital or access to loan facilities because there is no guarantee of the revenue streams that would fund those loans. Unless they happen to have very large reserves, which many do not, they cannot easily enter that market without a big brother to help them over their first steps. I cannot see how we can move in this direction without an amendment of the kind that my noble friend has proposed, and which has backing it some capacity to help these sectors grow when the need arises rather than just leaving it all to clinical commissioning groups.

I hope that the Minister can give us some reassurances about how that capacity-building capability can continue to be preserved and developed because, if it is not, we will see a growing volume of partnerships between the private sector and the voluntary sector, because they have the capacity to borrow money and provide the working capital to help those organisations to play their role in developing services in the NHS.

[Baroness Armstrong of Hill Top]

My Lords, I, too, support the amendment. It is critical that the Government are clear as to how they will support and enable the voluntary and community sector to participate in ways that we know, from experience, are valuable to the National Health Service. In my previous intervention, I mentioned the three parts of the DH which the Minister referred to as levers. It is important that he is clear with the Committee that those parts of the Department of Health will remain, and that the financial contribution put into the fund will continue in order to support the capacity building and the ability of the voluntary sector to put in bids.

The problem is that the Government's rhetoric has not so far been followed through in action. I take, for example, the work programme, which came not from the Department of Health but from the Department for Work and Pensions. Serious commitment was given in the House that significant parts of the work programme would be contracted to the voluntary sector. This simply has not happened. In most of it, the voluntary sector was a very lowly partner. I must say that the organisation I am involved with in the north-east, which is now the largest voluntary organisation in the north-east, is a lowly partner with others in the work programme. We have not signed anything, because we cannot afford to go into it unless we get more than what is left after everyone else has taken their cut, because we are at the bottom, committed to work with only the most disadvantaged, who are therefore the most difficult to get into work. It is six months later, and we are not yet anywhere near agreeing to go in with the other groups. We have to cover our costs.

It is very important that the Government do not follow the same route in the health service. I know that that will be done locally, which the work programme was not, but it is very important. I also have experience through the voluntary organisation on negotiating on detox facilities and facilities for addicts. It has cost us an enormous amount to finally be allowed to provide the service. Because we are providing a unique service and no one else in the National Health Service in the region is following what is called the recovery method, rather than methadone and so on, we have decided that it is worth pursuing that. I must tell the Minister that, were we not such a large organisation, we would struggle. Were we not therefore so prepared to continue to work on it, it simply would not happen. It is vital that the Government give the voluntary sector much more reassurance than they have to date in these areas. Accepting my noble friend’s very good amendment would be one way to do that.

Health and Social Care Bill

Baroness Armstrong of Hill Top Excerpts

Monday 14th November 2011 Lords Chamber

[Baroness Jolly]

My Lords, I think I am the last Member of the Committee to speak on the amendments in this group and I promise I will be brief.

I have two amendments in this group. One concerns a public health specialist on the clinical commissioning groups. We have been around the houses with this and my noble friend Lady Williams has spoken most eloquently on this matter so I will not emphasise the points again. My second amendment is to do with the recruitment and remuneration of lay members of clinical commissioning groups. The Committee has rehearsed the arguments that there is a lot of silence around clinical commissioning groups and their governance. This just underpins that. There is a bit of a Catch-22 with this situation because the Bill makes provision for an audit committee and a remuneration committee and also for a lay member to chair each of the two groups. Therefore, you could argue that a remuneration committee might play a part in deciding how much a lay person would be remunerated for sitting on the group. However, we do not yet have the lay person to chair the group and take the decision, so who will take the first decision about the appointment of these two lay members? They will also need remuneration; who will take that decision?

The other big issue that has been discussed by the Committee this evening is that of transparency within the governance of clinical commissioning groups. I expect the noble Earl hopes to wind up soon. When he does, I hope he will be able to give us a steer on the Government’s thinking on this.

[Baroness Armstrong of Hill Top]

Briefly, this is a very important set of amendments, which we do not have time to deal with effectively in the next 10 minutes. I understand that the Government do not want to spend more money. Indeed, the Minister said earlier that the whole idea was to cut down the amount of money spent on CCGs, relative to what was previously spent on PCTs. The problem is that there will be more CCGs than there are PCTs and there is deep anxiety over the lack of clear governance. The Government have a problem here. So far we have had clues that there is to be accountability upwards. These amendments make it clear that there must be accountability downwards, too.

As the noble Baroness, Lady Finlay, said, GP groups are different from other groups in the National Health Service. They are not used to this level of accountability or this level of governance—even at the level that the Government have already put into the Bill. Nobody outside, particularly in other aspects of the NHS, thinks that the governance in the Bill is adequate. I share the concerns that other people have expressed tonight; I share the concerns about coterminosity.

I have mentioned previously to the Minister that Durham is now a unitary county. We used to have seven PCTs in Durham and Darlington; we now have one. We will have three CCGs. I do not believe that that will be cheaper and I am not yet convinced that it will be more effective for commissioning. The Government have a lot to do to reassure people that this will be more effective and that it will be accountable. There are many GPs who are now anxious the other way around. They are anxious that if they go into CCGs, the level of accountability, governance and bureaucracy will be so great that they are saying, “We’re not sure we want to have anything to do with it”.

This is an area where I suspect the Government will say that, in all truth, this is not where they want to be. However, this is where we are and the responses that we have heard so far simply do not meet the level of anxiety and the need for accountability that everyone thinks is there.

[Lord Davies of Stamford]

My Lords, what I want to say might have been a little long as an intervention in the Minister’s speech but it will be very short as a speech. I simply want to ask the noble Earl, when he replies to this debate, to address in a considered way how the Government intend to deal with an enormously significant and worrying conflict of professional interest that could arise in this context. Anyone who is a member of a clinical commissioning group, whether he or she is a GP or not, must presumably be committed and signed up to the priorities, policies and plans of that clinical commissioning group. However, where that individual is also a GP who has his or her own patients, some of those patients may have conditions that do not get a very high priority in those plans and policies. Surely there is an immediate conflict of interest. In the present circumstances, the GP can say to his or her patient: “I am doing my best to battle with the PCT to get the treatment that I really think you need”. However, in the situation that arises as a result of the structure in this Bill, that GP would be on both sides of the table. He would be arguing with himself and making representations to himself. Surely the noble Earl would agree that it is a thoroughly unsatisfactory situation. Can he assure the Committee that it will not arise and, if it does, that the Government have a clear set of rules or procedures for dealing with it?