Health and Care Bill

Debate between Baroness Brinton and Lord Lansley

Lords Hansard - Part 2 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Lord Lansley (Con)]

My Lords, the purpose of Clause 26 is to introduce a process by which the Care Quality Commission inspects integrated care systems. The structure of this is the subject of my Amendments 162A and 164A. Those two amendments go together—they are not separate, but entirely linked. The purpose of Amendment 162A is to remove the process by which the Secretary of State sets objectives and priorities for the Care Quality Commission in undertaking such inspections of integrated care systems; Amendment 164A then seeks to insert a process by which the Secretary of State, and indeed others, are consulted by the Care Quality Commission over the quality indicators that it would use to assess the quality and performance of integrated care systems.

A bit of background would be helpful for noble Lords in this respect. Think back to what the Care Quality Commission’s existing statutory arrangements are in relation to reviews and performance assessments of existing bodies in the National Health Service. The structure is very straightforward. The commission is asked to set quality indicators, to consult on those and then to review against them and produce reports. I know from personal experience that the Secretary of State cannot direct the Care Quality Commission to undertake a particular review, but they can certainly make a request, and their role as steward of the whole healthcare system has certainly led Secretaries of State to do that from time to time. But the legislation does not permit the Secretary of State to direct the Care Quality Commission in how it does its job; it is an independent body corporate. There is intrinsic merit in the Care Quality Commission, as an inspectorate, operating independently. The structure of this clause in this Bill is at odds with the way in which the existing legislation is structured in the 2008 NHS Act as amended. The effect of these two amendments would be to restore the independence of the Care Quality Commission in undertaking its activities and in the way in which it goes about its job.

The Government’s drafting of the legislation is wrong anyway. There are references to objectives and priorities. The priorities are referred to in new subsection (3), inserted by Clause 26(2), which says that they

“must include priorities relating to leadership, the integration of services and the quality and safety of services.”

I have to say that this is teaching grandmothers to suck eggs. There is no way in which the Care Quality Commission is not going to incorporate such indicators of quality. We know that from the generic nature of the quality indicators that it uses generally for existing NHS bodies. The reference to setting objectives is not only novel but completely undefined. The Secretary of State can set whatever objectives they wish to; we do not know what they are and there is no indication of what they might be. Taking out references to objectives and priorities seems to me to be a very good thing.

As it happens—I declare my own role in this—in the 2012 legislation there was previously a process by which the Secretary of State set standards for the Care Quality Commission in determining what the quality indicators should look like. We actually took that out of the 2012 legislation, precisely on these grounds: that the Care Quality Commission is, and should be, as independent as possible.

I think this clause proceeds from the mistaken apprehension that the Care Quality Commission is a part of the management process of the NHS. It is not. If the Secretary of State wishes integrated care systems to proceed in any particular way, the Secretary of State has the means to do so available via the mandate; the Government plan to add specific powers of direction; and NHS England has duties that go in exactly the same direction. The Care Quality Commission is not part of the management process for integrated care systems; it is an inspectorate. If—and this is a risk we must avoid—the Secretary of State were directly intervening to set objectives for integrated care systems to be inspected subsequently by the Care Quality Commission, whereas NHS England is itself setting objectives for integrated care systems through its responsibilities and duties, those two may come into conflict.

For all those reasons, the Government would be well advised to accept these two amendments and put the Care Quality Commission into the independent role in relation to ICSs that it, and people working in the National Health Service, would recognise as being its role. I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, the noble Lord, Lord Lansley, has set out the tensions underlying the Bill about returning to the Secretary of State powers over independent, arms-length bodies; specifically, in this amendment, the inspections carried out by the Care Quality Commission in its role as a regulatory body. He rightly reminded us of the current arrangements, which give the CQC the ability to set its indicators and which, frankly, work well. I will not repeat his arguments, except to say in a slightly wider context that almost every piece of legislation brought to Parliament by this Government has given Ministers more powers—including, as in Clause 26, the power to intervene and to change remits.

The noble Lord’s amendments maintain the independence that the CQC—and other regulatory bodies—need to be able to inspect and make rulings without fear of favour or influence from politicians, while ensuring that the CQC must consult the Secretary of State when it revises indicators of quality for the purposes of assessment. That seems to me to provide the requirement for the CQC and the Secretary of State to engage in dialogue, but without the political intervention outlined in Clause 26(2) and (5).

Can the Minister explain why the Government feel the need to remove the independence of the CQC—whether this is an issue of management, as the noble Lord, Lord Lansley, said—and how giving the Secretary of State these powers can maintain the independence of a regulatory body?

Public Health England (Dissolution) (Consequential Amendments) Regulations 2021

Debate between Baroness Brinton and Lord Lansley

Tuesday 9th November 2021 Lords Chamber

[Lord Lansley (Con)]

My Lords, it was not my intention to speak in this debate—I wanted to come and listen to it—but I am prompted by a number of contributions just to say one or two things in response to the debate and before my noble friend has a chance to reply. I share with my noble friend Lord Cormack his support for my noble friend in taking on these responsibilities, and nothing I have to say reflects on his role in this. Indeed, I think it has been handed on to the Secretary of State as well, so in a sense we have a new team and I hope they will think about things sometimes in new ways.

I want to make a few, very simple points. The noble Lord, Lord Hunt of Kings Heath, is absolutely right: Public Health England was an executive agency. It worked for the department. In so far as it had operational autonomy, that was not in the legislation; it was a choice made by Ministers. At any stage, as was the case during the Covid crisis, Ministers had all the powers they required in relation both to Public Health England and to the NHS under the emergency legislation.

Let us remember that this House went through the 2012 Act in scrupulous—I might almost say excruciating —detail. It arrived at a conclusion that NHS England should be independent and Public Health England an executive agency. Notwithstanding certain measures put into the legislation to make sure that Public Health England would be more transparent and accountable, that balance was struck not least because I and my colleagues on behalf of the Government said, “We want the NHS to be seen to be independent. We want Ministers to take personal responsibility for public health.”

The noble Lord, Lord Howarth of Newport, referred to one or two things that happened afterwards. I want to share in thanking Duncan Selbie for what he achieved. I want to make it absolutely clear that I understand that Ministers subsequent to the establishment of Public Health England did not give to public health the resources, either for PHE itself or for local government with its responsibilities, that were intended back in 2010-12 under the coalition Government. That did not happen.

Let us remember that, at the beginning of 2020, the King’s Fund produced a report saying that it thought that the public health reforms had worked but they had not been sufficiently funded. Internationally, Public Health England was regarded as being as prepared for a pandemic as virtually any other country in the world. That things fell down needs to be thoroughly examined by an inquiry. An inquiry has not even begun, yet we are already at the point where people have made judgments, reached conclusions and found scapegoats. Heads and deputy heads have rolled.

We are not going about this in the right way. I want Ministers in due course to think again in the light of the report of that inquiry about what constitutes the right mechanism for managing their public health responsibilities. They need an organisation that understands public health in its entirety. How many of us think that the pandemic was unrelated to the extent of non-communicable diseases in this country, to the extent of disparities in this country and to extent of the obesity epidemic that we suffered?

We have so many interconnections between inequalities and public health problems, and our resilience against communicable diseases, that we should never think of managing public health in separate, siloed organisations again, but that is exactly what the Government are doing, without, frankly, having thoroughly understood what happened in in 2020 and 2021. I hope that they will go back and say, “Prevention is not the job of the NHS. Prevention is the job of the Government.” Public Health England was the organisation whose job it was to do that. If it was not strong enough in 2020 to do it, Ministers might look at what they did in the preceding years that might have undermined that role and think carefully about how they should take on the responsibility of building an integrated and fully functioning public health organisation for this country in the future, certainly not simply fragment it.

[Baroness Brinton (LD) [V]]

My Lords, I declare my interest as a vice-president of the Local Government Association.

From the Liberal Democrat Benches, we support the Motion of Regret in the name of the noble Baroness, Lady Merron, and the noble Lord, Lord Cormack and the noble Viscount, Lord Stansgate, are absolutely correct that this House does not like the fact that once again the Government have chosen to use secondary legislation to make major changes to the way the Government manage their business—in this case, public health.

The noble Baroness, Lady Merron, has set out the chaos of a series of announcements from August last year, followed by a variety of procedures and changes when the Government kept getting things wrong. I absolutely support her concerns, and, as have many other speakers, I start from the position that major reorganisations during a global pandemic are unsound and unhelpful, not just to dealing with the pandemic but to the performance of any successor bodies, including the UK Health Security Agency and the Office for Health Promotion and Disparities, with disparity work continuing in NHS England. I echo the comments of the noble Lord, Lord Howarth, and others on the work of all the PHE staff, and Duncan Selbie in particular.

Healthcare (International Arrangements) Bill

Debate between Baroness Brinton and Lord Lansley

Report stage (Hansard): House of Lords
Tuesday 12th March 2019 Lords Chamber

[Baroness Brinton]

My Lords, I support the amendment moved by the noble Baroness, Lady Thornton. Without repeating our debates at previous stages of the Bill, it would be helpful to have reassurance from the Minister that the content of the list in the noble Baroness’s amendment is exactly the sort of detail we need. It is important to reassure people on exactly how any financial arrangements for healthcare will be made.

[Lord Lansley]

Further to that point, I think following the list exactly may be the most difficult thing for the Government to do. Amendment 16 sets out to commit to a report on payments. We have healthcare agreements with, for example, Australia and New Zealand where no money changes hands. As I understand the way in which these agreements work, it would be very difficult for numbers of British citizens in Australia or Australian citizens here to be collected to be reported. The noble Baroness, Lady Brinton, asked for the list to contain exactly the sort of information we need. While the list may indicate the sort of information we are looking for, if it is not available, it is not available.

[Baroness Brinton]

Under current arrangements, the National Audit Office is able to tell us exactly the costs of the reciprocal arrangements with Europe. I am therefore struggling to understand why we might not be able to do this elsewhere in future.

[Lord Lansley]

The costs are exactly what the Government are proposing to report on. The Australian agreement, for example, does not involve payments to and fro. So costs do not arise. We have mutual, reciprocal agreements about treating each other’s citizens in our domestic healthcare system.

[Baroness Brinton]

I am sorry to prolong the point but, surely, we would be clocking up those costs in the NHS, even if they were not reclaimed.

[Lord Lansley]

The Minister may wish to advise on this. I understand that we probably do not—because there is no requirement to recover the money—whereas, under an EU agreement, we collect the data because we are required to charge the Governments who are the competent authorities for those patients.

[Baroness Brinton]

I am really sorry to prolong this point but, if we are trying to make sure that new reciprocal arrangements are effective, this is exactly the sort of data collection that we should be seeking. Even if it is not used initially, the whole point is that we want to understand the costs of each arrangement.

[Lord Lansley]

I am making a simpler point: it is no good asking for information that is not collected. There is a good reason why it is not collected. Although, this might happen in future, at the moment I do not think anybody is proposing to switch the Australian and New Zealand agreements to ones where there is reciprocal reimbursement. In this case, I do not think the information is being collected.

Healthcare (International Arrangements) Bill

Debate between Baroness Brinton and Lord Lansley

Committee: 1st sitting (Hansard): House of Lords
Tuesday 19th February 2019 Lords Chamber

[Lord Lansley]

The noble Lord invites me to go on about a subject that I anticipate Report stage of the Trade Bill will discuss in considerable detail. I do not propose to discuss it now, if he will forgive me, because this is a wide debate that raises broader issues that will have to be addressed. Quite properly, they might be better addressed in the Trade Bill, which is actually about large-scale international treaties that we are likely to enter into in short order. I am not aware of any proposals for an international healthcare agreement that will be presented in the form of a treaty that we will have to ratify in any immediate timescale. I would rather think about it under those circumstances.

I will say one more thing about sunset clauses. Because of their nature, I am rather sympathetic to the idea that, if we know legislation has a limited shelf life, we should put one into the legislation, otherwise the temptation to go on and on will be irresistible to Ministers. But I do not understand that this Bill has such a limited shelf life. We want to enter into healthcare agreements that might or might not be agreed by December 2020; they might be agreed in 2021 or 2022. In so far as they relate to non-European Economic Area countries, they might arise at any time. There is no immediate prospect of them doing so. To have a sunset clause of this kind would be potentially unduly restrictive, especially expressed as a two-year limit, as it is.

For all those reasons, the debate has been useful. I absolutely understand its importance, because I have future amendments, as the noble and learned Lord, Lord Judge, said, about the ability to amend retained EU law and the question of whether there should be different arrangements relating to agreements that replicate an EU agreement or do something different. As my noble friend Lord O’Shaughnessy rightly said, I raised that at Second Reading and I have amendments that will allow us to debate it later. Those are practical steps where we can question the structure of scrutiny and control that Parliament will exercise in relation to these regulations. A future group that I hope we will get to this evening questions the extent of the Secretary of State’s power to pay money—to whom and how much. That is important. All of us want to set down in legislation how we think Ministers’ use of this power should be structured in the agreements they might consider with other countries. Those debates will be useful, not least in terms of the Minister’s response—which I very much look forward to.

[Baroness Brinton (LD)]

My Lords, I will comment on a couple of points from a political perspective. We have heard from a significant constitutional expert during the course of the last hour and a half. I thank the Minister for her letter following Second Reading and for her response at Second Reading. But what has become clear in the past hour is that for most of us who have been engaging in the debate this has clearly been a Brexit Bill. Indeed, the Minister says at the beginning of her letter:

“Although this Bill is being brought forward as a result of the UK’s exit from the EU, it is not intended to only deal with EU exit”.


However, it is one of the series of Bills that must be passed by 29 March, regardless of whether there is a deal, because we do not yet have the detail. As far as this House is concerned, it is in the list of Bills that we have been told must go through by that date. For that reason, I am afraid that I take issue with the noble Lord, Lord O’Shaughnessy, who says that it is not being rushed through. We have been waiting for this Bill and others for some time. We now have to rush it through because we are 39 days away from 29 March and time is extremely limited.

Some of the allegations that some of us made at Second Reading that this was all about future trade deals have become much clearer to us. I raised concerns then about TTIP. In her letter, the Minister appears to contradict herself. She says on page 2:

“Should the Government wish to enter into new comprehensive arrangements, this Bill provides the framework to implement these”.


Two paragraphs later she says:

“This Bill is not about negotiating new agreements, but to ensure … appropriate mechanisms … to implement them”.


It seems from everything that the noble Lords, Lord Lansley and Lord O’Shaughnessy, said that this provides the framework that will influence the Trade Bill and any future trade agreements. That is one of the most important reasons why a Bill that we understood was coming before us in order to replicate health arrangements with the EU, whatever our relationship is with it after 29 March, is now moving into a much broader political arena that deserves more than one and a half days in Committee to discuss it—let alone whatever time we are going to be allowed at Report.

I want to leave it there at this point, except to say to the noble Baroness—because I do not think there is another point at which I can do so without laying down an amendment that does not particularly have reference to the scope—that she tried to reassure me and others, both in Hansard in what she said winding up the Second Reading debate and in her letter, that the NHS was safe in the hands of this Government, and that the Government basically agree with the principle of the service of the NHS being free at the point of need. But the question that I asked has not been answered, either in her letter or in her response on the Bill. I am concerned about the replication of the EU directive on public procurement that provides many of the protections that we are seeking for the NHS in its entirety as we continue in the future.

I went on to the NHS Confederation website to look at what advice the Government were providing for the NHS in the event of a no-deal Brexit, and found that all the bullet points relating to public procurement were about emergency supplies running out. There is nothing about the intrinsic changes that are provided for in the current EU directive about not having to go out to competitive tender for certain parts of NHS procurement. We have used those as a protection over recent years, including during the coalition Government, to say that the NHS is safe in our hands. So I ask the Minister specifically if she can point me to where the replication of that EU directive on public procurement will appear before us prior to 29 March this year, because I am having trouble finding it.