Health and Care Bill

Baroness Thornton Excerpts

Lords Hansard - Part 1 & Report stage
Monday 7th March 2022 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, I echo the thanks of my noble friend Lord Sharkey to the Ministers and their officials for the very helpful discussions that we have had with them on reciprocal healthcare agreements. I also thank my noble friend for his persistence in leading on those discussions between Committee and Report on the two points of difference between us—the definition of reciprocal healthcare, with our concerns about the ability to create a privatisation of parts of healthcare, and that an SI under a negative resolution is not strong enough for Parliament to scrutinise properly. My noble friend’s amendments are, as he said, very specifically aimed at removing these concerns, and I look forward to the Minister’s response.

I also particularly thank Ministers for understanding that the House was deeply unhappy with the original proposals for regulations via a negative resolution. I hope to hear that Ministers will now agree to the affirmative resolution proposed in the amendment of my noble friend Lord Sharkey. Scrutiny by Parliament needs to be timely, and Parliament needs to be allowed to effectively challenge proposals about which it has concerns.

[Baroness Thornton (Lab)]

My Lords, it is a great pleasure to speak about reciprocal healthcare, which is not how I felt several years when we dealt with this exact issue in your Lordships’ House, as many noble Lords might remember. It was with some trepidation that I and these Benches looked at this part of the Bill, because we were so concerned and had to do so much work to protect our NHS in the passage of the 2019 Act.

I am very grateful to the Minister and the Bill team for engaging with us so thoroughly to take on the board our concerns, which needed to be built into this part of the Bill. I say particularly how impressed I am by the noble Lord, Lord Sharkey, and how grateful I am to him for his understanding and persistence—and his ability to read long, complex documents, understand them and then translate them so that other people can understand them too. That is a great talent.

From these Benches, with the idea that the affirmative resolution will be agreed, we are very happy indeed.

[Baroness Penn (Con)]

My Lords, I too thank noble Lords for their helpful engagement on this matter over the last few weeks and for bringing forward the debate on this issue today. It is important that the results of those discussions are on the record, so I hope that noble Lords will forgive the length of my response.

I am pleased that we agree on the overarching benefits of having reciprocal healthcare arrangements with countries across the world, which would provide support to UK residents when travelling abroad and can be particularly valuable to those with long-term health conditions. Such arrangements can also support enhanced healthcare co-operation with our international partners. It is for these reasons that the Government have negotiated new arrangements with the EU and Switzerland and now wish to refresh arrangements with countries outside Europe and with our overseas territories and Crown dependencies. This policy is fundamentally aimed at assisting UK residents to access healthcare abroad.

Turning to the amendments tabled by the noble Lord, Lord Sharkey, I start by making some assurances to him and to the House over the policy intentions of the international healthcare arrangement clause in the Bill. To be clear, this legislation is not about the negotiation of international healthcare agreements. Those agreements are negotiated using prerogative powers. This clause and the 2019 Act that it amends simply ensure that the Government have the powers to implement international healthcare agreements. Healthcare agreements contain substantive provisions, such as eligibility criteria and which treatments will be covered. New Section 2(1) gives us the power to implement those healthcare agreements; for example, by putting in place administrative arrangements and conferring functions on public bodies to deliver our reciprocal healthcare commitments. We could, for example, set out which public body will administer the global health insurance cards. It is anticipated that any regulations made under new Section 2(1) will be materially the same as the current Healthcare (European Economic Area and Switzerland Arrangements) (EU Exit) Regulations 2019 No. 1293.

The department has been undertaking careful analysis of how to take forward international healthcare agreements, balancing the benefits for citizens when abroad with the Secretary of State’s duties in the NHS Act 2006, which apply when exercising functions in relation to health services, for example, the duty to continue the promotion in England of a comprehensive health service. Our analysis to date shows that there are clear benefits to be derived from state-to-state reimbursement models, but that these will generally work only with countries with public healthcare systems.

I recognise the noble Lord’s concerns about the breadth of the powers, and I reassure him that Clause 151 narrows the powers under the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 to better reflect what is necessary now that the UK has left the EU and has reciprocal healthcare arrangements in place through the trade and co-operation agreement. It does this by revoking existing powers in Section 1 of the 2019 Act, which currently enable the Secretary of State to pay for unilateral healthcare policies in the EEA and Switzerland; enabling payments to be made for treatment outside the scope of a healthcare agreement only if exceptional circumstances justify the payment; allowing the payment power to be exercised only if authorised by regulations. and limiting the Secretary of State’s ability to make regulations in areas of devolved competence.

Our approach follows concerns raised by noble Lords in the original Bill debates in 2019 about the breadth of the unilateral payment and regulation-making power. Under the current Sections 1 and 2, the wide powers given to the Secretary of State to fund healthcare in the EEA and Switzerland were intended to cover various EU exit options and ensure that UK nationals were not left in a cliff-edge situation in the EEA and Switzerland in the event of a no-deal scenario. There was limited additional scrutiny for the payment power in the original 2019 Act due to the circumstances at that time. We consider that this power is no longer appropriate or necessary now that the trade and co-operation agreement is in place.

Amendment 126A would limit the exceptional payments power so that it is exercisable only after the Secretary of State has set out reasons for, and details of, any payments made before Parliament. However, I do not believe that this would work in practice. The policy intention is that the exceptional payments power will be used in circumstances where an individual falls marginally outside of the scope of a healthcare agreement. We have, for example, used discretionary payment powers under the 2019 Act to provide crisis mental health support to a minor in the EU who was not covered under the European health insurance card scheme due to the structure of the member state’s healthcare system. These circumstances are often where an individual has a very serious and urgent medical need, and it remains essential that the Government are able to move quickly to support that person and ensure their welfare. An amendment where this power is exercisable only after the reasons and details of payments have been laid before Parliament could severely hamper our ability to act quickly—something that I am sure is not the intention. Furthermore, the Government are already obliged under Section 6 of the 2019 Act to lay before Parliament an annual report outlining the payments made pursuant to the Act. This ensures that there is transparency and will continue to apply following amendments made by this Bill.

I confirm that the amended definition of a “healthcare agreement” in this Bill is materially the same as the current 2019 Act definition. Both cover commitments between the UK and a country, territory or international organisation for healthcare provided outside the UK in whatever form. Making reference to “other commitment” is a drafting change to make it clearer that the regulation-making power can be used to implement non-legally binding arrangements, such as memoranda of understanding. This ensures that implementation of reciprocal healthcare arrangements made with close partners, such as the overseas territories and Crown dependencies, are in scope of the 2019 Act, as they do not have the authority to become parties to treaties in their own right. They can, therefore, enter only into non-legally binding arrangements.

Amendment 184ZC would make regulations subject to the affirmative resolution procedure. With thanks to the noble Lord, Lord Sharkey, for his constructive engagement, the Government are content to accept this amendment and, as the noble Lord is aware, may amend it further to ensure that the drafting is optimal for our shared objective.

The purpose of the 2019 Act and the provisions that we have put forward in Clause 151 is not to implement trade deals. The Government have categorically stated in their manifesto that the NHS is off the table when we are negotiating agreements with our international partners. To be clear, it is important to state that reciprocal healthcare agreements that we agree with other countries do not relate to the commissioning and provision of services for the NHS. The policy intention in that reciprocal healthcare should cover publicly available healthcare.

This legislation narrows the scope of the powers compared with the 2019 Act and is tailored to negotiate more comprehensive healthcare agreements with our closest partners, as well as provide support to our citizens when they need it most. For that reason, I ask the noble Lord to withdraw this amendment and not move Amendments 126B to 126G. I confirm the Government’s support for Amendment 184ZC.

Health and Care Bill

Baroness Thornton Excerpts

Lords Hansard - Part 1 & Report stage
Thursday 3rd March 2022 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, the noble Lord, Lord Lansley, has made some important and sensible points, and I look forward to hearing the Minister’s reply.

My noble friend Lord Scriven raised the important question of the role of local authorities. I simply want to add that I happen to know that some of the chairs-designate of the ICBs would really like to know the answer to the question posed by the noble Lord, Lord Lansley, early on in his speech. What is the relationship of the health and well-being boards to the ICBs? If those people are confused, it is not surprising that noble Lords are too.

[Baroness Thornton (Lab)]

My Lords, the noble Lord, Lord Lansley, has once again put his finger on an issue that the Government need to take seriously and which, as the noble Lord, Lord Scriven, said, has run through our debates at Second Reading and in Committee. What is the role of the ICPs’ joint working and what should a place board be doing? As I said during the previous day’s debate on Report, we need also to treat place boards—or any commissioning body—in the same way as we do the ICBs.

The noble Lord, Lord Lansley, is right. If the Government do not address this issue in the next few weeks by putting something in the Bill, we may well find ourselves back here in two or three years’ time, doing exactly what we are doing now.

[Baroness Penn (Con)]

My Lords, this has been an important discussion about place and joint working, and although the Government are unable to accept my noble friend’s amendments, for reasons I shall touch on, I hope I can reassure him that the questions which he and other noble Lords have raised have been considered in the Bill.

England is so large and diverse that a one-size-fits-all approach will not be right for everyone, and that is why we have been flexible about the requirements for integrated care partnerships and joint working arrangements. We fundamentally believe that, if integration is to work, we must allow local areas to find the right approach for them.

As my noble friend will appreciate, our provisions on integrated care partnerships build upon existing legislation, particularly in the case of health and well-being boards. We know that health and well-being boards have played an incredibly important role in the last decade, and this legislation intends to build on their success. We will be refreshing the guidance for health and well-being boards in the light of the changes that this Bill proposes, in order to help them understand the possibilities of these arrangements and their relationships with ICBs and ICPs, so that they can find the most appropriate model for their area.

Fortunately, this Bill and existing legislation already provide the framework to do what these amendments intend to achieve. Two or more health and well-being boards can already jointly exercise their functions, and where the local authority area and ICB area are the same, there is no reason why the health and well-being board and the ICP cannot have the same membership. The ICP is intended as an equal partnership between the local authorities and the ICB. By restricting the right of the local authority to nominate a member who they see fit and requiring them to do so through a committee with a potentially wide membership, including the ICB, risks undermining that equality. Local authorities may ask their health and well-being board to nominate those members. However, we do not wish to restrict their options and unintentionally prevent better collaboration and integration by adding further requirements to the Bill.

I turn to the joint working arrangements. The Bill also provides for the ability to establish place-based committees of ICBs and to set them out clearly in their constitutions. I assure my noble friend on this point that the legislation allows the flexibility to establish these committees, so we should not find ourselves in the situation that he talks about. ICBs will be able to enter arrangements under new Section 65Z5, which allows an ICB to delegate or exercise its functions jointly with other ICBs, NHS England, NHS trusts, foundation trusts and local authorities, or any other body prescribed by regulations. Under these powers, a committee of an ICB could be created to look at population health improvement at place level and could consider entering an arrangement under Section 65Z5 to work jointly where appropriate.

The membership of that committee can be decided locally by the ICB, and it is entirely open to the ICB to seek views from other organisations as to who best to appoint. I hope that reassures my noble friend that there is already the legal framework for ICBs to look at population health improvement at a place level. We are trying to protect the ability of ICBs to determine the structures that work best for them. To help them to do that, NHS England has the power to issue guidance to ICBs on the discharge of their functions. The flexibility that we have set out in the Bill makes my noble friend’s intentions possible. However, our provisions also give a degree of flexibility, so that areas can take control, innovate, and adopt what works best for them, rather having to meet prescriptive top-down requirements.

It is for these reasons that I hope that my noble friend feels able to withdraw his Amendment 61 and not move his Amendments 95 and 96 when they are reached.

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[Baroness Walmsley (LD)]

My Lords, the CQC is a competent and independent organisation. Long may that continue, and any attempt to trammel it is unwelcome. We have here a 265-page Bill. If the CQC cannot get from the Bill the intentions of the Government and carry them out carefully in doing its job inspecting and reporting on how the integrated care systems are working, I do not think it needs any further direction from the Secretary of State.

[Baroness Thornton (Lab)]

I agree with that and with the noble Lord, Lord Lansley. We will be coming to other issues about the Secretary of State’s powers later on Report, but the noble Baroness, Lady Walmsley, has put her finger on it. I think I was there at the CQC’s inception because I was a Minister at the time, or certainly soon after. It has discharged its duties extremely well. The Minister needs to explain why the Government feel it necessary to put these powers into the Bill.

Health and Care Bill

Baroness Thornton Excerpts

Lords Hansard - Part 2 & Report stage
Thursday 3rd March 2022 Lords Chamber

[Lord Lansley (Con)]

My Lords, noble Lords will recall from Committee some substantial discussion about whether it was wise for the Secretary of State to take additional powers of direction in relation to NHS England. I suppose I should declare an interest since I gave the NHS commissioning board, or NHS England, the freedoms it currently enjoys. I am probably the person least likely to be persuaded that it is a very good idea to take all that away. After our debate in Committee, I thought it was probably sensible, rather than to seek to remove the powers of direction that the Secretary of State is given under Clause 39, to look at the exceptions to that power in new Section 13ZD and ask: are these all the exceptions that we should have?

On Amendment 83, the conclusion I reached was that there were at least two specific areas which are not mentioned in new Section 13ZD but should be; namely, limitations on the use of this power on the part of the Secretary of State. First, the local allocation of resources to integrated care boards—and the difficult decisions of trying to remedy the inequalities in access to healthcare services through the resource allocation process—is not something which any of us want the Secretary of State to interfere with; otherwise, it is sure to be regarded as being done for a political purpose, even if it might be done for another.

Secondly, there is the question of

“procurement of goods or services”.

After all the experience we have had over recent months, the last thing any of us wants is to go too far in the direction of the Secretary of State having a power in relation to procurement when that can perfectly well be given as a responsibility to NHS England. This is Amendment 83, and I hope that my noble friend, if he cannot accept the amendments, will give us some specific assurances in relation to the Secretary of State not using those powers.

In this group, I also put my name to Amendment 84, which would remove Clause 40—and, by extension, Schedule 6—from the Bill. This is about the Secretary of State coming in and acquiring more powers than was formerly the case. I was shadow Secretary of State for six years or so. During that time, I would have loved it if the then Secretary of State had all these powers to intervene in every reconfiguration, because I went around the country—as people are fond of reminding me—mobilising opposition to some of the ways in which the health service, led by the then Government, was trying to reconfigure services. This is not something that the Secretary of State or the current Government should wish for themselves or for their successors in office. I will not go back into all the arguments, but there are plenty of good examples of where, if the Secretary of State had this power, people would press the Secretary of State to use it—and it would be deeply unwise for a Secretary of State to get involved.

The justification on the part of the Government is that it stops this going on for ever. But there is a reason that these things go on for a long time—because they are intensely difficult, and the balances are very difficult to strike. Sometimes, the processes of consultation and public engagement take a long time. If the Government’s argument is that they are going leap in, intervene and settle it all quickly, both sides will yell when they do that. We can be absolutely certain of this. No one will be happy, and everyone will blame the Secretary of State. This is very firmly in the “be careful what you wish for” category. We would do the Government a great service by deleting Clause 40 from the Bill. If the noble Baroness, Lady Thornton, pursues that, I will certainly support her. I beg to move Amendment 83.

[Baroness Thornton (Lab)]

With the leave of the House, I thought it might be useful if I used my slot to speak right now on leaving out Clause 40. First, I thank the noble Lords, Lord Patel and Lord Lansley, and the noble Baroness, Lady Walmsley, for putting their names to this amendment. The noble Lord, Lord Patel—with whom I spoke this morning, and who is definitely on the mend, so I hope we will see him next week—said how strongly he supports the amendment. I will speak very briefly because we have already said much of what needs to be said about saving the Secretary of State from himself—as the noble Lord, Lord Lansley, said, I think. This is what this amendment is about.

Clearly, this is not what the NHS asked for in the Bill. It did not ask for this power. It has been added to the Bill—by a previous Secretary of State, I suspect—and I hear rumours that even the current Secretary of State is not a great fan. Why would any Secretary of State want to have this power—to be lobbied and drawn into any minor local dispute, particularly as we head towards a general election?

I have a small anecdote. A small coastal town had a small hospital with an accident and emergency department. It could not be properly staffed, it regularly closed for random periods, and far too often patients arrived there only to be moved to the larger A&E 20 miles down the road. Proposals were made to close it—and of course, outrage ensued. “Save our A&E”, people said, even though it was unsafe. Local politics were poisonous, and the blame for the closure was thrown on opponents, whichever side they were on.

However, over time, good communications, clinical leadership and, eventually, bringing local people into the team, got the proposal moving. People understood what was needed and why, and the reconfiguration process went through its stages, with external reviews and analysis by the national clinical advisory team, which all gave reassurance. The clincher came when a distinguished clinician leading the review told a meeting that he would personally go and paint over the road signs for the A&E, because it was so unsuitable. It shut, which probably means that lives were saved.

The process of rational argument and proper analysis works, and on this occasion we should not just leave it to local politics to decide what reconfiguration means. The Secretary of State has enough powers to direct the whole NHS in its fullness, but should not be involved in what may be very small reconfigurations indeed. We agree, and many people in the NHS and its organisations agree, that this clause should be removed from the Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have no doubt that when the Minister responds he will say that the Secretary of State is likely to use this power very rarely. The point is that the moment the health service knows the Secretary of State has such a power, that will immediately influence its behaviour in relation to any improvements or major changes of services likely to lead to opposition from the local Member of Parliament. I think that the Minister is responsible for innovation in the health service, and this will put the kibosh on innovation and service changes.

Written on my heart is Kidderminster General Hospital. The Minister may not recall this, because it is a long time ago now, but Worcestershire Health Authority made proposals to reconfigure A&E services and close Kidderminster General Hospital. The then Member of Parliament, David Lock, who was a loyal member of the Government, bravely defended that decision. He lost his seat in 2001, and it has been written on the hearts of many MPs since then that they do not defend that type of change, because they might lose their seats.

I cannot believe that the Government wish to give the Secretary of State the nightmare of that kind of lobbying—I am trying to tempt the noble and learned Lord, Lord Clarke, to intervene here, because he knows what MPs do. What we have at the moment is a very good system, at arm’s length, and it beats me why on earth the Government want to do this. We need to do the business and get rid of the clause. I suspect that we shall not see it back again.

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

I thank noble Lords for bringing this debate to the House today. I am sure that the Secretary of State will be grateful for the desire to save him from himself and his powers. Let me read out the following quote:

“If we went out to Parliament Square now and straw-polled people walking by, asking them who they thought was responsible for the NHS in England at a national level, I think we would wait a very long time before anyone gave any answer other than the Government and, by extension, the Secretary of State”.—[Official Report, Commons, Health and Care Bill Committee, 21/9/21; col. 393.]


These are not my words, but those of the Opposition spokesman during Committee in the other place.

One of the core pillars of the Bill is to ensure appropriate accountability for the NHS. This is of the utmost importance as we invest further in local service decision-making and delivery. It is critical that, in line with the aims of the Bill to empower local systems, the Secretary of State has the appropriate levers to meet the public expectation for ministerial accountability.

There has been some confusion about what the powers in the Bill will do, and if noble Lords will allow me, I will spend a moment on this to add clarity. Clause 39 will simply allow the Secretary of State to direct NHS England—and only NHS England—on matters where it already has functions. This is not a power over local bodies. Clause 40 and Schedule 6 will allow the Secretary of State to call in and decide on reconfiguration decisions. They do not remove any of the existing safeguards, including the requirement to consult or the role of the Independent Reconfigurations Panel in providing advice to the Secretary of State.

I understand the arguments put forward in Amendment 83, and I will take procurement first. We agree that it is inappropriate for the Secretary of State to be involved in individual procurement decisions. That is not the motive behind this power, and it is not the way it would be used. The regulation-making power inserted by Clause 70 prevents the Secretary of State being able to use this direction-making power to direct NHS England—

[Baroness Thornton (Lab)]

The Minister said that this was not the motive behind the power, but motive is not the point here. I am sure that the Secretary of State has the best of motives, as does the Minister, but the point is the effect of what the Bill says.

[Lord Kamall (Con)]

I thank the noble Baroness for clarifying that. Of course, we completely understand the concerns that have been raised. The Secretary of State must use regulation-making powers where they exist, rather than using the power of direction to achieve what could be achieved under regulations.

Turning to the allocation of resources to the ICBs, the Government have no ambition to use this power to interfere with individual allocations of money to the system. It will not be used to interfere with the independent Advisory Committee on Resource Allocation. NHS England will continue to make funding allocations to ICBs to support them to deliver functions via the target formula, in order to reduce inequalities between patients. We have attached safeguards to this power to make sure it is not misused. Any exercise of this power must be done transparently: it must be made in writing, be published and be made in the public interest. This will enable Parliament to challenge Ministers and hold them to account.

Turning to Amendment 84, Clause 40 and Schedule 6 will allow the Secretary of State to better support effective change and respond to stakeholder concerns, including views from the public, health oversight and scrutiny committees and parliamentarians, in a more timely way. The clause and schedule will ensure that key decisions made about how services are delivered are subject to democratic oversight.

It is a misapprehension that the Secretary of State currently has no role in the decision-making process for reconfigurations. He does and without these provisions that role will continue. However, currently, referrals usually come at a very late stage in the process, which represents neither good value for the taxpayer nor good outcomes for patients.

I understand the concerns from noble Lords, including former Ministers, about how these powers might be used. But I have been asked to make clear that we expect the vast majority of reconfiguration decisions to continue to be managed by the local system—

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am implacably opposed to privatisation of the NHS—not for ideological reasons, although the Green Party is strongly opposed as well. I think it is inefficient. Privatisation has not worked. It has failed to deliver on promises to increase quality, decrease cost and help patients. Rather than save money through reduced bureaucracy, the main cost savings of privatisation seem to be in cutting the terms and conditions—chiefly the pay and pensions—of staff. If private companies can compete for public services, let them compete on a level playing field, rather than simply capturing staff and paying them less.

I am pleased that the noble Lord, Lord Lansley, explained his Amendment 98 because I had understood it completely the other way around—that he was protecting private services. I was going to have a word with him afterwards about it, but there is now no need.

As the noble Lord, Lord Hendy, just said, most people in Britain do not want a privatised NHS. They want a public service because that is what will give them the best results.

[Baroness Thornton (Lab)]

My Lords, this group contains a number of helpful amendments. I welcome the amendments that the Government have tabled in response to the many and varied discussions we have had. I am grateful for this positive and constructive approach, which proposes transparency at the heart of procurement.

We have discussed with the Government at some length why the NHS has to have its own bespoke procurement regime, which the Bill paves the way for. We have seen two consultation documents about the scope, scale and nature of this bespoke regime. Although they seem quite sensible, we have been assured that the Government feel that the regulations will be based on a sound foundation.

The noble Lord, Lord Warner, is quite right about patients not knowing their right to choose. It is a hole in the provision. The right to choose is very important. People absolutely do not know that they have it.

While not being explicit, the new providers’ selection regime will actually get us to where Labour tried to get in 2010 with the NHS as the preferred provider, at least as far as the many complex and expensive services provided by NHS trusts, FTs and other core patient-facing services are concerned. Therefore, the principle is fine. The problem is that it does not extend across everything that the NHS procures, and that is partly the nub of what my noble friend said in his amendments, which I will return to in a moment.

Our view is that in any circumstances where competitive procurement is to be used, the national rules apply, so why does the NHS need a bespoke system for all non-clinical stuff? We have never actually had an answer to that, except that the NHS comes up with wider regulations, and we feel that that it is a waste of time and effort. However, we have had ample assurances from the Government that the NHS bespoke regime will be properly documented and all the rules set out, with some route to enforcement and challenge. We are assured that there will be no award of contract without applying the process that is set out—no back doors and no flexibility when contracting with private companies. With those assurances in mind and the knowledge that campaigners and trade unions will be vigilant and might even stump up for judicial review, and because of the ICB amendments agreed earlier in the week, we will get more or less what we wanted and we will not try to remove Clause 70 from the Bill.

I turn to the remarks of my noble friend Lord Hendy, who has our sympathy and approval. Had we been discussing this at a different time of day, we may have sought to support some of his amendments, and certainly the spirit of them. He has posed a legitimate question to the Minister: why do the Government not insist on good employment of staff as a criterion for their procurement regime?

We on this side of the House remain opposed to the outsourcing of NHS-funded services such as cleaning, catering and many others because we can see that it has led to staff being transferred into the private sector, corners being cut and standards dropping. It has been a symptom of chronic underfunding and it is a terrible long-term strategy. It has of course been completely counterproductive because it has sometimes meant that our hospitals have not necessarily been cleaned, serviced or looked after as we might have wished them to be. We have tried at various stages to introduce safeguards and to outlaw altogether the NHS’s tax-dodging habit of setting up SubCos, but those are probably matters for another day.

I would say to my noble friend that I am not sure that changing the procurement regime is the best way forward for this issue, although he has our support in the politics and context in which he introduced his amendments.

[Earl Howe (Con)]

My Lords, before addressing the amendments in the name of my noble friend Lord Lansley and the noble Lords, Lord Hendy and Lord Warner, it may be helpful if I speak to the six government amendments in this group: Amendments 101 to 104, 106 and 107. The first five of these amendments would amend Clause 70, which inserts a new regulation-making power in relation to the procurement of healthcare services, Section 12ZB, into the NHS Act 2006. They amend the clause so that regulations, when they are made under this power, will have to include provision for procurement processes and objectives, for steps to be taken when competitively tendering and for transparency, fairness, verifying compliance and the management of conflicts of interest. Amendment 106 also requires NHS England to issue guidance on the regulations.

Health and Care Bill

Baroness Thornton Excerpts

Lords Hansard - Part 1 & Report stage
Tuesday 1st March 2022 Lords Chamber

[Lord Crisp (CB)]

My Lords, I echo that statement and say how much I appreciate both the way in which the discussion was held and the end point whereby these amendments have now been placed in front of us.

[Baroness Thornton (Lab)]

I absolutely concur with the noble Lord, Lord Crisp, and the noble Baroness, Lady Walmsley, and congratulate the Minister on a concise and accurate proposal of these amendments. Long may this continue.

[Baroness Penn (Con)]

My Lords, this has been a welcome, consensual and short start to Report stage, which I am sure we will continue through future groups. I am not sure there is much to add, so therefore I ask that these amendments be agreed.

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[Baroness Walmsley (LD)]

My Lords, from these Benches I thank the Minister and the whole Front-Bench team for the way they have engaged with the House on the issue of doing something really serious about addressing health inequalities.

Many of us put down amendments in Committee: dealing with inequalities was dotted all over the Bill. We even suggested that perhaps we needed a quadruple aim—an additional aim. The Government have taken a different but none the less effective approach, and I really welcome the fact that dealing with health inequalities has been made integral to the first two aims of the triple aim.

The Government have done two things that I particularly welcome. The noble Lord, Lord Kakkar, mentioned the engagement of the noble Lord, Lord Patel, with the Bill team on making sure that data can be collected. Without collecting the data, you cannot analyse or take action on addressing health inequalities.

The second thing, which the Minister mentioned in his introduction, is government Amendment 21, which is about the experience of people in the health service. He mentioned that the experience of people from an Asian background can sometimes be poor. I can give him an example of where that has been the case. My daughter has a friend, an Asian gentleman, who had a very painful physical injury. Very unusually, although his physical problems have now healed, he has been left with a mental scar because of his experience with the health service. This is very unusual, but he was not treated with compassion or respect. Indeed, it was more like discrimination—so I really welcomed what the Minister said about the importance of the experience of people from all demographics and ethnic backgrounds in the health service. It is vital.

I turn to the amendments from the noble Baroness, Lady Armstrong. Like all noble Lords, I have been watching the television recently, looking at the pain that the poor people of Ukraine are going through and seeing children, mothers and whole families huddled in cold, damp cellars. Some of them are taking several days to drive to the border to go to a country that will welcome them, perhaps with even more open arms than we do. It occurred to me that those people, when all this is over—and let us hope it will be over very soon—will probably be suffering from mental and physical illness. It also then occurred to me that there are people in this country who have poor-quality housing, insecure housing or no housing at all. When you put those things together, it is not surprising to realise that such people will be suffering from more serious and more frequent physical and mental ill-health than the rest of us who are in good-quality, secure housing. So the noble Baroness has hit on some very important issues about health inclusion communities and about the importance of housing to making health, and we support what she has to say.

I end by sincerely thanking all three Ministers and the Bill team for the way they have addressed this issue of health inequalities, and I really look forward to it making a real difference in future.

[Baroness Thornton (Lab)]

My Lords, the noble Baroness, Lady Walmsley, expressed that very well indeed. From these Benches, I say how much we welcome these amendments and thank the Minister for introducing them. I also join the noble Lord, Lord Kakkar, in regretting the fact that our friend Naren Patel—the noble Lord, Lord Patel—is not with us today. His speech on this in Committee was outstanding, as his speeches always are. In fact, the whole debate was the House at its very best in expressing its view.

We welcome these amendments, and I was very pleased to add my name to Amendment 3 on behalf of these Benches. I was not as energetic as the noble Lord, Lord Kakkar, who put his name to all of them, but that was a symbol of the fact that we supported all these amendments.

We support them because, as people have mentioned, they recognise the importance of addressing inequalities from the top to the bottom of the National Health Service, and of monitoring, counting and research—not a tick-box exercise to say that you are tackling inequalities. As I have mentioned before, I am a non-executive member of a hospital in London. In fact, I have just completed three days of its workforce race equality training. That was three days out of my life during the course of this Bill, but it was definitely worth while. It absolutely was not always comfortable, and nor should it have been. It did indeed raise issues, many of which were raised in research published on 14 February by the NHS Race & Health Observatory. It basically says that the NHS has a very large mountain to climb in tackling race inequalities and inequalities across the board. It is a worthwhile report, which I am sure the noble Earl will be paying attention to in due course.

I also want to say how much I support my noble friend in bringing forward her amendments on the homeless. Coming from Bradford, I am particularly fond of a GP surgery called Bevan Healthcare, named after the founder of the National Health Service. It was started by my local doctor in Bradford, who spent his spare time providing GP services on the street to the homeless. From that, the NHS was commissioned to provide a GP surgery specifically directed to the needs of people who are itinerant and homeless, working girls and so on. It is still there, and it is a brilliant example of how to deliver the service, and of the money it saves the NHS at the end of the day. As I think my noble friend Lady Armstrong said, if you get this right then people do not end up in emergency care or worse.

We hope that the Minister will respond positively to these amendments. I thank him, his team and the Bill team, who addressed this issue thoroughly and with a great deal of success.

[Earl Howe (Con)]

My Lords, this has been a very fruitful discussion and I am most grateful to all noble Lords who have spoken. I especially thank my noble friend Lord Young of Cookham, the noble Baronesses, Lady Walmsley, Lady Thornton and Lady Hollins, the noble Lord, Lord Kakkar, and the noble Lord, Lord Patel, in his absence, the King’s Fund and the Health Foundation for their contributions, both inside and outside this Chamber, in shaping this debate and the amendments before us.

Without wishing to repeat what I said earlier, I commend the government amendments to the House as they will strengthen the ability and resolve of the health and care system to take meaningful action on tackling health disparities. I next thank the noble Baronesses, Lady Armstrong of Hill Top and Lady Morgan of Drefelin, and the noble Lord, Lord Shipley, for tabling their three amendments and for the focus they bring to the issues of housing and homelessness. I found the account of the experience in government of the noble Baroness, Lady Armstrong, and the work of Professor Aidan Halligan, whom I too remember with great respect, compelling. I agreed with so much of what she said.

Let me say straight away that the Government are committed to improving the health outcomes of inclusion health groups, as they are known. That is precisely why we tabled the amendment to expand the inequalities duty placed on NHS England and ICBs beyond simply patients to incorporate people who struggle to access health services such as inclusion health groups, but there is much more to say on this.

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[Lord Lansley (Con)]

My Lords, I join the debate briefly to add my thanks to the Government for the amendments on research that they have brought forward in this group. It is extremely helpful, as the noble Lord, Lord Kakkar, said, to entrench the concept of a research culture inside the NHS. In our various ways and guises, we have all encountered some of the difficulties of diffusing innovation and the take-up of new medicines in the NHS.

The point was made very well by the noble Lord, Lord Hunt of Kings Heath, but he did not say why the NHS does not adopt new medicines as rapidly as some other European systems have. I do not think we have more conservative clinicians than other countries, but we do not have a third-party payments system. We do not have a system whereby the patient can ask “What about this?”—these days, increasingly, they do—and the clinician can say yes, and pass the bill to somebody else. Instead, our system centrally determines the extent to which new medicines will be available. We have a particular requirement in the National Health Service for a system which looks for areas where there is value in innovation, disseminates it, takes it up and makes it available to patients.

I make two other points. One is to say thank you, as I am not sure I will get another opportunity to do so. We had substantive discussions about rare diseases; the noble Lord, Lord Sharkey, in particular spoke very well and fully about the needs involved, and the Government published their England Rare Diseases Action Plan yesterday. On orphan drugs, that will give significant additional impetus to the availability of treatments for those with rare diseases. I very much welcome that.

Secondly, Amendment 178 in particular is interesting. I do not necessarily advocate that we adopt it, but it asks the Government do something that they generally have not done and ought to do, which is to come back to the issue of access to medicines and treatments—and, I would add, to medical devices—and ask how well we are doing at the process of bringing that into effect and how well our Accelerated Access Collaborative, which is supposed to look at all these things and make them work together, is making that happen.

The beauty of Amendment 178, on which I will add just a little, is that we ought to have a very clear timetable for how we move the system forward. I hope the Government will adopt this. In January 2024, we will have the next voluntary pharmaceutical pricing and access scheme. The industry will be looking, rightly, to arrive at a position where all the initiatives mentioned give patients access to medicines in this country as soon as in any other healthcare system. On that basis, the industry will be prepared to understand that not just the NHS but the Government will look to get some pretty cost-effective prices out of it.

Now I do not happen to think that it is NICE’s job to make that relationship happen. I happen to think that NHS England is increasingly equipped to be a central player in this process. It should sit alongside NICE when it carries out health technology assessments in what is effectively a trialogue with the industry and say, “Well, how can we ensure that the patient has access to this medicine, and at what price? Can NICE act as the referee to establish whether the price and the incremental benefit are reconciled to be cost effective for the NHS?”

We should build that into the system over the next 18 months so that, when we start the new scheme in January 2024, the system is understood to work. It should not depend on large-scale transfers of money, with overpriced new branded medicines on the one hand being recycled back to the NHS to go into the innovative medicines fund on the other. This tracking of money around the system is not the best way to make it happen. We should aim for the industry to be paid what the health technology assessments and the NHS budget requirements mean is a fair price for the medicines it is providing—and that is what the industry should expect.

Everybody should be working to arrive at a position where, when a medicine obtains authorisation—in other words, when it is deemed safe, clinically effective and of good quality—and a clinician recommends it for a patient, the patient should have access to that medicine through the NHS. That is what we are aiming for. It has not always been true, but it ought to be in the future. We need a system that people, including clinicians in the NHS, understand and that supports their ability to prescribe medicines in that way.

[Baroness Thornton (Lab)]

My Lords, I do not intend to speak about this for very long, because I feel that I am the least well-equipped person in the whole Chamber to do so—possibly with the exception of the Minister, which is often the way and is how I felt when I was a Minister; I would stand up to speak about research and other huge subjects and everybody else in the Chamber who had spoken certainly knew a lot more than I did, and that is the case here.

Noble Lords may recall that the starting point at Second Reading and in Committee was that there was no place for research in the Bill at all—so I congratulate noble Lords who picked this up and ran with it, and, indeed, the Minister and the Bill team on taking it on board and producing these amendments. That is helpful; as the noble Lord, Lord Kakkar, said, it is about the future and it is exactly the right thing to do.

I also agree with the noble Baroness, Lady McIntosh, and my noble friend Lord Hunt in their disappointment on the issue of NICE. They are quite right about the access and availability of medicine and devices to healthcare practitioners and that the system is still uneven; also, of course, nobody is asking how we are doing and whether it is working. It is a shame that these aspects have not been included in the Bill, but I suspect that the noble Baroness and my noble friend will probably live to fight another day.

[Lord Kamall (Con)]

My Lords, I am grateful to all noble Lords who have spoken thus far in this debate. I also thank the noble Baroness, Lady Thornton, for expressing her confidence in my ability to understand these issues; I fear that she may be right.

Turning first to Amendment 29, it is firstly important to note that it is the MHRA, not NICE, that licenses these medicines in the UK. NICE makes recommendations on whether the price that the NHS pays for treatments represents value for money. Access to effective new treatments for NHS patients is a priority for the Government. That is why we have committed to maintain the funding requirement for NICE appraisal of recommended treatments.

The standard contract also stipulates that providers must ensure that formularies include all NICE appraisal-recommended treatments. NICE’s guidance on developing and updating local formularies also clearly states:

“When a NICE technology appraisal recommends a medicine, adopt the medicine into the local formulary automatically, if clinically appropriate and relevant to the services provided by the organisation. This process should take place within 3 months.”


I believe that this represents a robust legal framework for ensuring compliance with NICE’s appraisal decisions. A stronger legislative requirement to include all NICE-recommended treatments on formularies within 28 days of a NICE decision would remove any flexibility both to vary the timescale where there are barriers to implementation, or where a product was not relevant to a particular organisation.

Turning to Amendment 171, NICE rightly operates independently from the Government, and key to this is setting its own procedures for developing guidance and recommendations. This includes setting its own discount rate, taking into account the wider policy and fiscal implications. NICE recently carried out a comprehensive review of its methods and processes for making appraisal recommendations, and the changes that NICE is introducing will ensure that its processes are fairer, faster and more consistent. I assure noble Lords that NICE already aims, wherever possible, to make timely recommendations on new medicines with draft guidance around the time of licensing, and final guidance within three months of licensing. However, NICE’s ability to issue guidance depends on an evidence submission from the manufacturer. It would not therefore be appropriate to place a requirement in legislation for a specified timeframe when that is dependent on other organisations.

This amendment would also require NICE to take account of a company’s membership of the Voluntary Scheme for Branded Medicines Pricing and Access, or the statutory scheme, in making its recommendations on medicines. These schemes have a very different purpose from NICE appraisals, which ensure that new medicines are clinically and cost effective, and they are time-limited, so would create significant disparities between medicines launched at different times.

I turn now to Amendment 178. I hope I can assure the noble Lord that arrangements are already in place to regularly review and monitor delivery against priorities and objectives, including through accountability meetings, engagement with external partners and public board meetings. The Government believe that regular monitoring through existing arrangements is the right approach and do not consider that a requirement to carry out a review is necessary. I assure the noble Lord that the changes recently introduced by NICE will make its methods and processes fairer, faster and more consistent, will ensure that they are suited to new and emerging types of technology, and will provide more equitable access for those with severe diseases. The vast majority of cancer medicines covered by the previous end of life flexibilities would also be covered by the severity modifier.

Placing requirements on NICE through primary legislation to use specified processes would fetter its independence to determine its own methods and processes, and it would be unfair to operate two different approaches at the same time. The amendment proposed by the noble Lord could also impact negatively on cancer medicines that were not eligible for the end-of-life flexibilities in their first appraisal but may be eligible for the severity modifier.

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Moved by

[Baroness Thornton]

9: Clause 14, page 12, leave out lines 3 to 6 and insert—
“(4) Each integrated care board must set out in its constitution—(a) the arrangements for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the board’s decision-making processes,(b) the process by which any appointment of a member to the integrated care board or any appointment to any committee or sub-committee of the integrated care board that has a commissioning function must be made so as to avoid the appointment of anyone who would be perceived to have a conflict or potential conflict of interest, and(c) the arrangements for ensuring that no member of any committee or sub-committee of the integrated care board who has a conflict or potential conflict of interest obtains access to information that might be perceived to favour the interest or potential interest.”Member’s explanatory statement
This intends to ensure conflict of interest rules that apply to an ICB also apply to commissioning sub-committees.

[Baroness Thornton (Lab)]

My Lords, we now come to the group of amendments where the wonderful harmony that has so far filled the House, with all the fantastic concessions and discussions, comes to a bit of an end. It concerns the make-up of the ICBs. I am very grateful to the Minister and the officials for the range of discussions that we have had and, it has to be said, for the consensus that there was and the brilliant initiative by the noble Baroness, Lady Walmsley, which led to Amendment 31. I commend the noble Baroness and the Minister for that amendment, which very successfully looks to the future of how ICBs might work in terms of an audit of the qualities, skills and so on that you need on an ICB. This group, however, reflects the fact that the House is concerned about who serves on ICBs now; they are being formulated and appointments made right now, and the Bill is the only opportunity we shall get to influence who serves on them and how that works.

This group of amendments addresses that issue in various different ways. I feel particularly strongly in my support of the amendment in the name of my noble friend Lord Bradley, for example. We have had a suite of amendments that have addressed the issue of mental health, but his particularly addresses the issue of ICBs. However, I will allow him to speak to that in due course.

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[Baroness Thornton (Lab)]

I congratulate the noble Baroness, Lady Bennett, on that suggestion.

I shall be very brief. This was an excellent debate, which proved that the House still has some reservations about ICBs and, if nothing else, it should tell NHS England and the 42 existing ICBs that we want them to do extremely well and to be powerful. Amendment 31 will help ensure their future prosperity and the diversity they need to do their job.

However, I am not content with the Minister’s explanation about my Amendment 9. I regret that NHS Providers and the NHS Confederation never bothered to speak to me about this amendment. They seem to have spoken to the Minister and a few other people and have been on Twitter about it. I think that is rude and it makes me wonder where their panic has come from. I do not think they need to panic about something which just adds consistency to the rules that govern commissioning and the spending of our money. I say with great respect to the noble and learned Lord, Lord Mackay of Clashfern, who I did not see at the beginning of this debate, that if sub-committees are commissioning and spending public money, they should have the same rules as the ICBs. That is the crux of this. I wish to test the opinion of the House.

Health and Care Bill

Baroness Thornton Excerpts

Lords Hansard - Part 2 & Report stage
Tuesday 1st March 2022 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I rise to speak to this amendment on behalf of my noble friend Lord Low, who is unable to move it because of a failure of his technology. I commend my noble friend’s sustained advocacy of the issues raised by the amendment. I declare my interest as founder and chair of the charity Books Beyond Words, which has published a word-free book called Looking After My Eyes jointly with the charity SeeAbility, which briefed my noble friend and me on this amendment.

The amendment seeks to improve primary ophthalmic services for people with learning disabilities, including pupils in special schools. There is no system of national monitoring of the number of people with learning disabilities who have visual impairments. Some research has estimated that people with learning disabilities are 10 times more likely to have serious eye problems than the general population, and six in 10 people with learning disabilities need glasses but may not recognise that they have sight problems. They may not be able to communicate this effectively, and they certainly need reasonable adjustments to access ophthalmic services.

The prevalence of visual impairment increases with the severity of someone’s learning disability. We know that some conditions associated with a learning disability, such as Down’s Syndrome, are associated with specific causes of visual impairment such as cataracts. My noble friend commented in Committee that the charity SeeAbility had identified that “four in 10 children” in special schools

“had never had a sight test”

and that

“half of adults with learning disabilities had not had a sight test” —[Official Report, 20/1/22; col.1837.]

within the recommended period. In short, those most in need of high-quality eyecare are arguably those least likely to get it. We need targeted improvements in primary eyecare for all people with learning disabilities. I am therefore very pleased to support my noble friend’s amendment and, in his absence, I beg to move.

[Baroness Thornton (Lab)]

I just want to say that I think that that is perfectly correct and reasonable.

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[Baroness Thornton (Lab)]

My Lords, this is an important group, so it is a shame that we are discussing it so late in the evening. It is important because it contains essential broad things that people need to stay well in their community. It is about the bread and butter of people’s health—their GPs, dentists, the physios and pharmacists, getting podiatry services and getting the proper social care that you need to be able to stay in your home. It is literally about helping people to stay local and stay well. In many ways, that is why I enjoyed the three years that I spent on a CCG so much, because I knew that it was local and that every month I was going to be visiting a GP surgery. I knew all those things, and I felt that that was an important contribution to healthcare in my area.

The amendment in the name of the noble Lord, Lord Crisp, is particularly important. If primary healthcare and these local services do not work, the rest of the NHS falls over.

[Lord Kamall (Con)]

My Lords, I am grateful to all noble Lords who have spoken on these amendments in this debate and in Committee, but I am also grateful for the discussions that we have had between the various stages and the conversations that noble Lords have continued to have with my officials—indeed, right up to the dinner break this evening. I shall speak to Amendments 34, 35 and 55 in my name, which I hope will go far in addressing many of the concerns raised in the debate.

We have heard the calls for greater clarity about what will be expected of ICBs in their forward planning. We also understand the importance of ICBs being transparent in discharging their functions to allow for public scrutiny and accountability. We have therefore brought forward these amendments to further clarify what ICBs must include in their forward plans and annual reports. These amendments provide that the forward plan must describe what services the ICB proposes to make arrangements for in the exercise of its functions. It must also explain how the ICB proposes to discharge each of its duties under new Sections 14Z34 to 14Z44. These duties include improving the quality of services, reducing inequalities, promoting the involvement of patients and carers in decisions about treatment and promoting the integration of health and social care services.

Amendment 55 requires an ICB’s annual report to explain how it has discharged each of its duties under new Sections 14Z34 to 14Z44. This would additionally include new Section 14Z47A, which is the new duty we discussed earlier requiring the ICB to keep under review the skills, knowledge and experience that it needs to discharge its functions and, when there are gaps, to consider what steps it can take to address or mitigate them. I hope that noble Lords will agree that these amendments represent a significant step forward in making sure ICBs are held accountable by ensuring that they are transparent in how they intend to discharge their numerous duties and functions.

I turn to the amendments proposed by noble Lords, and I shall address each of them as briefly as I can. On Amendment 19, I assure my noble friend Lord Farmer that the Bill already includes the power for ICBs to commission services or facilities for the prevention of illness under new Section 3A in Clause 16. The provisions in Clause 16 also require ICBs to act consistently with the Secretary of State’s duty for the promotion of a comprehensive health service, including in the prevention of illness. Further, new Section 14Z34 places a duty on ICBs to improve the quality of services including preventive services, and new Sections 14Z36 and 14Z38 place duties on ICBs to ensure that patients and carers are fully involved in these decisions, including about prevention.

I now turn briefly to Amendment 62, spoken to so ably by my noble friend Lord McColl and the noble Baroness, Lady Hollins. I also pay tribute to the noble Baroness, Lady Greengross, who in my brief time in this House thus far has really educated me about dementia and the fact that, as we are living longer physically, this will become more of an issue.

The department is currently developing a new national dementia strategy for England, which will be published later this year. This will include objectives focused on restoring the dementia diagnosis rates and improving the diagnostic experience for people living with dementia, as well as increasing the number and diversity of people participating in dementia research. I take on board the concern of the noble Baroness, Lady Walmsley, about getting the many volunteers for clinical trials at the right time.

There is already work under way to help restore dementia diagnosis rates back to the target of 66.7% following the pandemic, supported by an additional £17 million to address dementia waiting lists and increase the number of diagnoses. Increasing participation in all types of research is a top priority and is in fact part of my portfolio. The UK has invested in a range of digital platforms, including Join Dementia Research, and we are now working to increase the scale of and interoperability between systems, improve diverse recruitment and reduce the burden and costs of clinical research delivery.

On Amendments 22 and 24, I reassure noble Lords that the Bill already contains requirements on NHS commissioning bodies to tackle health inequalities. Commissioners are also required to promote the right of patients to make choices with respect to services or treatment. This includes allowing patients to choose to be treated outside their ICB area. To support this, we expect ICBs to actively co-operate with each other. Furthermore, we have amended the duty on ICBs to have regard to the need to reduce inequalities between patients, proposing by government amendment to extend this to “persons”, in respect of accessing services. This means we are capturing everyone, not just people accessing services. This duty would encompass the need to reduce inequalities with respect to geography as well.

I now turn to Amendment 30. I thank the noble Baroness, Lady Finlay. First, I should thank her for the daffodil I am wearing to celebrate St David’s Day. She assures me that it is not a listening device to eavesdrop on my conversations with officials. If she had eavesdropped, she probably would have been embarrassed by the amount of praise heaped on her. We acknowledge her desire to see strong provision of community rehabilitation and it is important that this is pushed up the agenda.

Under the existing Bill provisions, every ICB will be required to provide and improve rehabilitation services as part of its duty to provide a comprehensive health service. As an added layer of scrutiny, ICBs must publish an annual review detailing how they have discharged this function. Also, NHS England is currently working on a national intermediate care framework, digital and virtual pathways and models of care, improved data recording and reports, and interventions using a wide range of community assets and levers.

I now turn to Amendments 33 and 37 to 54. I thank the noble Lord, Lord Crisp, for his engagement on this issue—indeed, including right up to the dinner break this evening. We would like to put on record our gratitude to the noble Lord and the Royal College of General Practitioners for pushing us on this and reminding us that, as we move to ICBs, we should make sure that primary care is not the poor relation. In moving to ICBs from CCGs, where GPs and primary medical services have played a huge role, we have to ensure that these are not dominated by a few large trusts.

We understand and continue to recognise the importance of primary care. Indeed, primary care is taking on more of the functions of what would traditionally be considered secondary care, especially with some of the primary care services and community centres appearing in our local communities. Only this week, we have seen stories and press reports of pharmacists calling for more of the functions of GPs to be delegated to them. They have helpfully suggested that they could save the NHS money and also provide better primary care services by taking on some of those functions. There is clearly a demand out there and that has to be encouraged.

Before I turn to this, I note that we hold primary care in equal esteem to any other sector—acute, community or mental health. Right from the outset, we have said that primary care must not be lost and must be at the heart of the ICB. As the Integrated Care Systems: Design Framework said:

“Through a combination of their membership, and the ways in which members engage partners, the board and its committees should ensure they take into account the perspectives and expertise of all relevant partners”,


including primary care.

I know the noble Lord is especially concerned about why primary care is not explicitly referenced in new Clause 14Z50(1). I hope I can offer him some explanation. First, we are conscious that there are 43,000 primary care providers, and it is impractical to require each to be a partner in developing the ICB forward plan. Secondly, new Clause 14Z50 ties NHS providers to the plan, and a failure to play their part could trigger NHS England’s intervention. It will also guide the financial requirements imposed under Clause 24. In contrast, primary care providers, as private contractors, are bound to the plan in a different way, primarily through contracts. Thirdly, new Clauses 14Z50 and 14Z54, on the joint capital resource plan, are intimately connected and primary care capital is provided through other routes.

However, ensuring that the primary care voice is sufficiently involved in joint forward planning in integrated care boards is our common ambition. The law requires the involvement of a primary care representative drawn from primary medical services on ICBs, just as it does for acute providers. ICBs will have to consider how they can best access skills and knowledge across primary care.

In addition, there is a duty in new Clause 14Z52 to consult

“any other persons they consider it appropriate to consult”

about forward plans. We expect that, in publishing its plan, an ICB should set out how it has met this duty and consulted primary care and other partners. I am able to inform the House that NHS England has confirmed that its guidance will be explicit in its expectation that primary care will be a crucial partner in that process. We are happy to engage with the noble Lord further as that guidance develops to ensure that we stick to that commitment to make sure that primary care is at the heart of this.

More broadly, ICBs have the discretion to appoint additional members to the ICB or exercise functions through committees. Commissioning at a local level requires the expertise of primary care, and we expect it to play a significant role as many decisions will be taken at that level under the principle of subsidiarity. Further guidance will be published on the development of place- level arrangements, including the role of primary care.

I also note the Fuller review. NHS England chief executive Amanda Pritchard has announced that Dr Claire Fuller, senior responsible officer of the Surrey Heartlands Integrated Care System, will lead a review on how primary care networks can be supported in integrated systems. NHS England has announced that the review will set out how ICSs and primary care networks should go about improving out-of-hospital care. The findings of the review will then be applied to ICBs, subject to the passage of this Bill. We hope this work will help all ICBs to make progress on developing general practice in this area.

I hope I have been able to assure noble Lords that we hold primary care in great esteem, and have given the noble Lord some reassurance that primary care will be involved in every level of the ICB, its functions and planning.

I now turn to Amendment 177 from my noble friend Lady Hodgson. I thank her for continuing to remind us of its importance and speaking movingly about her own experience. I remind noble Lords that all practices are already required to assign all their registered patients—including those aged 65 and over—a named, accountable GP. The GP must lead in ensuring that any GP services that they are contracted to provide, and that are necessary to meet the patient’s needs, are co-ordinated and delivered to that patient. Practices must take reasonable steps to accommodate the requests of patients to be assigned a particular GP and to see them for an appointment.

However, it is vital that practices retain clinical discretion to provide appointments, as is necessary and appropriate to meet the reasonable needs of patients—something that this amendment would remove. Through primary care networks and initiatives such as enhanced health in care homes and anticipatory care, we are supporting GP practices to improve continuity of care on the ground, including for older patients. We are committed to growing the general practice workforce and increasing access to appointments, in line with our manifesto commitments.

Government Contracts: Randox Laboratories

Baroness Thornton Excerpts

Monday 21st February 2022 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, at the heart of this Question is almost £500 million of public money, awarded in two public health contracts to Randox Laboratories without competition. My honourable friend asked this Question in the Commons and raised the dissonance in what has been said by the Government over the months since the issue was first raised. I have two questions for the Minister. Does he agree with the former Minister of State for Efficiency and Transformation, the noble Lord, Lord Agnew, that the Government were paying dramatically over the odds for Randox products? If so, can he explain why the Government then entered into a second, more lucrative, contract with the firm? Secondly, the chief operating officer for the Civil Service requested the restoration of competitive tendering by March 2021. Can the Minister set out how many further contracts have been issued after that date without tender and explain why the emergency procurement rules are still in place almost a year later, given that we are coming, as the Prime Minister just told the Commons “out of Covid”?

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

I start by thanking the noble Baroness for those questions. On her first point, we should remember the stage that the Government were at at the beginning of the crisis. People were dying every day and there were panics; they were not sure what was out there. Clearly, they were going out looking for suppliers for testing and other equipment. There were a number of approaches and different meetings, but one thing that has been quite clear is that all contracts were awarded according to the Public Contracts Regulations 2015. I have been reassured about this by officials. Authorities are permitted to procure goods, services and works via direct award, using Regulation 32 of the Public Contracts Regulations 2015, in exceptional circumstances, such as extreme urgency, without competing or advertising the requirement. I contend that the beginning of the Covid crisis was such an emergency, and that is one reason it was awarded without competition. There are clear procedures, we are committed to openness and transparency and details of the contracts are available online.

The decision on whether to procure a product from a supplier ultimately sits with departmental officials once the offer has cleared assurance steps. These include clinical acceptability and financial due diligence. I often get emails from people who have sat next to me somewhere who say, “I have this fantastic product”, but I have to reply to them and say, “I’m very sorry—I will copy officials into this but I can take no further part”.

I shall try to answer on the emergency procurement procedures, but I want to make sure I have the right note. Clearly, there are unforeseeable circumstances such as, for example, the rapid onset of omicron at the end of 2021. That also required UKHSA to act with extreme urgency. We used Regulation 32 in some cases at the end of last year to supply LFTs over the Christmas and new year period due to increased demand. The use of Regulation 32 was necessary because our DPS 2 procurement had reached its limit of extension and there was no time to run additional procurement. I am sure the noble Baroness and others will remember the end of last year, when people just could not get hold of testing equipment and we were trying to buy as much as we could on the world market.

Integration White Paper

Baroness Thornton Excerpts

Thursday 10th February 2022 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, in the almost five years that I have been doing this job, we have been waiting for a social care White Paper. My noble friend Lady Wheeler, month after month, asked where it might be and was told that it would be in the summer, the spring or the following winter, and it did not arrive. Indeed, in desperation, the House’s Select Committee, chaired by the noble Lord, Lord Forsyth, brought forward its own proposals for the future of social care, and extremely good they are, too. But here we are—the Government are now spoiling us with a third White Paper in a year. However, this one is a disappointment, I have to say, given the importance right now of the future for social care. Given the Government’s commitment to fixing social care, it is even more of a disappointment. We know that integration of health and social care, however it is defined, is extremely difficult, but I fear that its integration will not be delivered by this White Paper. It is long on description and has really great examples and aspirations, but it is very short on actual solutions and action.

Before I ask the Minister some questions that we need to address, I should also say that what is very disappointing in the White Paper is the lack of attention it gives to carers. They are not mentioned very often, even though the NHS and social care depend heavily on unpaid carers supporting people with long-term conditions and disabilities in the community. Some 1.4 million people in the UK provide more than 50 hours a week of unpaid care, and while unpaid carers provide the bulk of care, they are still not systematically identified, supported or included throughout the NHS. We have one system, social care, that recognises carers legally as an equal partner, while the other, the NHS, does not. That has been discussed in your Lordships’ House very recently, in the passage of the Bill before us, and is still not resolved. If there is going to be an integration of health and social care, one of the first things that needs to happen is the integration and legal recognition of the role of carers and our duty to support them and their well-being.

Moving on, it is not clear how this White Paper fits with the Bill before us. Even the experts involved repeatedly trip over the crucial issues, such as the relationship and responsibilities of integrated care boards, integrated care partnerships and integrated care systems, as well as the new joint committees and how they will work with the statutory health and well-being boards, which as we know have no commissioning powers, as the noble Lord, Lord Lansley, has said on at least one occasion. What is the role of health and well-being boards? If they are necessary, why are they not integrated into the system being proposed in the Bill before us? Now that we have a new Joint Committee, my first major question is, how will it work with the health and well-being boards, and with the ICBs and ICPs? Where will the clinical leadership sit, and where is the accountability to local people?

It is not clear how this latest offer fits with the proposals before us today. I suggest to the Minister that this is not really a plan. It is a description, an aspiration, but it is not a plan. It does not tell us which bit is responsible for what. If the new individual proposed in this White Paper is to take responsibility for shared outcomes, who will appoint them? How will they get there? Will NHS England, which is appointing the ICB chair and chief executive, be accountable to this new super-leader? Will they be inspected by the CQC? What if a huge local foundation trust misbehaves? What powers will the new leader have to act? That is why it is not a plan.

The second reason this is not a plan is that it has no workforce component—an issue that we are very seriously concerned with in the Bill before the House now. There is no workforce strategy or a commitment to one. If we want integration, it has to be a workforce strategy that covers health and social care, and it has to be long term.

The aspirations and vision are fine, but we have signed up to strategies before—for example, the NHS plan in the noughties; we thought that would be good. I regret that it almost feels as if this document has been put together as part of finding lots of new things to say to detract from the issues facing the Prime Minister and No. 10, which is a huge missed opportunity.

So, the issues the Minister needs to address include the workforce and the question of how you integrate and pool two systems which operate in different ways. One is means tested, and the other is not. One has national criteria for entitlement, and the other does not. The ways they are governed and funded are totally different, and they are kept going by two separate workforces with no aligned terms and conditions.

The White Paper talks about local initiatives and building things locally, but unless the infrastructure is there to produce the alignment needed, those local initiatives—many of which are very successful—will not be the pattern for how this works. So, I leave the Minister with a series of questions I hope he might be able to address.

The White Paper also does not help children and young people. It does not address the challenge of how to care for and support working-age adults with a disability. As I have said, it does not value or assist the informal workforce or carers. For an NHS under enormous pressure after years of austerity funding and then the impact of Covid, this is a disappointment. I am afraid that I could not decide whether it should get a C or a D.

[The Deputy Speaker (Lord Haskel) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.

Elective Care Recovery

Baroness Thornton Excerpts

Monday 7th February 2022 Lords Chamber

[Baroness Thornton (Lab)]

I thank the Minister for repeating that Answer; I am very glad that he did not bash the Dispatch Box. I remind noble Lords that this Urgent Question is only 10 minutes, so let us have quick questions. The facts that 1.1 million people are waiting for scans and tests, and that the House of Commons Library says that half a million people with suspected cancer will wait longer than the two-week target, mean that it is a shame that the Government’s plan to deal with this, which was due to be published today, was pulled late last night. I will not speculate about whether this was an argument between the Prime Minister and the Chancellor of the Exchequer, but I really hope that the Government are not playing political games with our NHS while 6 million people wait for care. Will the Minister please tell us when the elective recovery plan is now due to be published? Not that long ago, the Prime Minister announced a new target that no one should wait more than two months for a diagnosis. Is that an example of lowering standards because this Government have failed to meet them, or is it a temporary measure?

[Lord Kamall (Con)]

I thank the noble Baroness for not speculating. All I can say about the elective recovery plan is that there have been active discussions between my department and the Treasury, and we expect to publish it very soon. On waiting lists, we are looking at how we can best target the backlog. We know that about 75% of patients do not require surgical treatment but require diagnostics. About 80% of patients requiring surgical treatment can be treated without an overnight stay in hospital. Around 20% of patients are waiting for either ophthalmology or orthopaedic services. We are quite clear about what the issue is, and we hope to publish the elective recovery plan very soon.

Personal Protective Equipment: Accounting

Baroness Thornton Excerpts

Wednesday 2nd February 2022 Lords Chamber

[Lord Kamall (Con)]

If I could correct the noble Baroness, the £8.7 billion does not refer to material that can no longer be used. As I said earlier, some of it can be repurposed or reused. On the so-called priority lanes, a number of government officials, Ministers’ offices, MPs, Member of the House of Lords, senior NHS staff, departmental staff and others were contacted. They then passed on these emails—I still get emails from people and pass them on to my department. All offers underwent a rigorous financial, commercial, legal and policy assessment. This was led by officials from various government departments as part of the PPE sale. The final decision on whether to enter into contracts sat with the appropriate accounting officer at the Department of Health and Social Care.

[Baroness Thornton (Lab)]

My Lords, I think it would be best if the Minister does not try to justify the VIP list, since he was not there. Consider the answer given by the former Minister for PPE procurement matters, the noble Lord, Lord Bethell, to a Parliamentary Question on 1 September 2021:

“As of 27 July 2021, the Department was engaged in commercial discussions (potentially leading to litigation) in respect to 40 PPE contracts with a combined value of £1.2 billion”.


Could the Minister please update the House on the situation with respect to that potential litigation and any attempt to recoup public money in the six months since the date of those official figures? If the Minister cannot provide the information today, could he write to me urgently, and ensure the information is placed in the Library?

[Lord Kamall (Con)]

The Department of Health and Social Care’s anti-fraud unit has acted quickly to investigate allegations of fraud. Indeed, this question came up when I was on a call with the unit earlier today; I was told that it saved £157 million in prevention and recovery by identifying and preventing high-risk contracts in the early days of the pandemic. There is a single company that is a potential source of loss, where we paid it and then terminated the contract as a preventive measure. I commit to write to the noble Baroness with a fuller answer.

NHS Dentistry

Baroness Thornton Excerpts

Monday 31st January 2022 Lords Chamber

[Lord Kamall (Con)]

My noble friend raises a very important point. I am sure many people understand that, when we first became aware of Covid, one issue was that, by its very nature, dental care can generate aerosols from the mouth, which presented a specific risk for dental activity. Once more was understood about Covid and its airborne spread, practices reopened in 2020 and were asked to provide urgent dental care. In addition, we have opened 700 urgent dental care centres to help patients in urgent need. You can also call 111. We are also looking at the longer-term reform of dental practice, and are in conversation with the BDA and others.

[Baroness Thornton (Lab)]

My Lords, the target-based NHS system was already unfit for purpose before Covid-19 and is completely incompatible with providing safe and sustainable services to patients as we emerge from the pandemic. Does the Minister agree that dentistry and the state of people’s mouths is becoming a serious issue which shows health inequalities? We are heading towards people who cannot afford dentistry, and their children, having rotten teeth. This is what the Minister must acknowledge and build into the health Bill that is before the House now.

[Lord Kamall (Con)]

We are very concerned about the potential inequalities. NHS England and NHS Improvement are very mindful of the risks of widening health inequalities. That is why, in their guidance, they specifically ask dentists to focus on providing urgent treatment for vulnerable groups and children and to delay planned care. NHS England has provided a flexible commissioning toolkit to local commissioners to help focus the available capacity on those who need it most and to reduce oral health inequalities.