Health and Care Bill

Baroness Walmsley Excerpts

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

[Baroness Penn (Con)]

My Lords, in moving Amendment 1, tabled in the name of my noble friend Lord Kamall, I will speak to the other government amendments in this group in his name.

Amendments 1, 76 and 77 are consequential amendments to two pieces of legislation that have been before Parliament during this Session. These amendments relate to the Police, Crime, Sentencing and Courts Bill and the Armed Forces Act 2021, and replace references to clinical commissioning groups with references to integrated care boards, and references to the NHS Commissioning Board with references to NHS England. Amendments 110 and 126 are purely minor and technical in nature to correct small drafting points in Clause 79 and Schedule 16.

I turn now to capital expenditure. The Government have listened carefully to the debate on Clause 54, and Amendments 88 to 91 will ensure that the powers in Clause 54, alongside our commitments to publish further operational guidance, are in line with the agreement between NHS Providers and NHS England in 2019. These amendments limit the powers to set capital expenditure limits for NHS foundation trusts, so that they cannot apply for periods longer than a financial year.

NHS England will continue to work with NHS trusts and foundation trusts to ensure sustainable use of capital expenditure, and it is our intention that a capital limit would be imposed only if other ways of resolution have been unsuccessful. A limit would be set only where usual financial reporting returns identify a likely breach of system expenditure limits. We therefore expect that the vast majority of capital limits will be set either in-year or shortly before the beginning of a financial year.

I reaffirm the Government’s commitment to ensuring that these powers are used only as a last resort, as NHS England agreed with NHS Providers. I am grateful to both NHS Providers and the noble Lord, Lord Crisp, for their constructive work in ensuring that these powers reflect that intention.

I hope noble Lords will therefore be supportive of these amendments. I beg to move Amendment 1.

[Baroness Walmsley (LD)]

My Lords, I thank the Minister for explaining the government amendments. I particularly welcome Amendments 88 to 91, because the Bill will now reflect the agreement made with the NHS foundation trusts in a much closer manner than in its original drafting. They are very welcome.

[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.

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[Baroness Finlay of Llandaff (CB)]

My Lords, I support these amendments and all that has been said already.

I will put a slight tone of reality on the size of the mountain which has to be climbed to get to the point we want to reach. I do not know how many people last night watched the Channel 4 documentary, “Emergency”, about four trauma centres. It is well worth watching if noble Lords want to see what the NHS is like now under pressure. I happen to know that, on one day last week in one of those major trauma centres, there were seven mental health acute patients in the emergency department but only one mental health nurse was present for all of them. One-to-one care should have been provided. There was nowhere for these patients to go; a further 20 acute patients also needed admission and there were no beds available in the hospital.

This illustrates that the intention behind all this is excellent and laudable—we are finally getting there. However, we have not got to the end of the road; we are just at the beginning. I hope that no one in the public, or in the service, has unrealistic expectations, because it will take a lot of work on everyone’s part to reach the goals we want to reach.

[Baroness Walmsley (LD)]

My Lords, I thank the Minister for listening very carefully to what noble Lords from across the House have been saying about the need to recognise the parity of esteem between physical and mental health, and for giving us some reassurance that the funding for mental health will increase in the future. A lot of mental distress has been caused by the fact that many patients suffering from mental ill health have not been able to reach the threshold for access to services. The reason for that has been a shortage of resources and a properly trained workforce which can deliver the therapies required. At the end of the debate, I hope that the Minister will be able to assure us that those resources will be made available.

My noble friend commented that she hoped that the new standards would not have the unintended consequences of transferring delays from the initial diagnosis to further down the treatment pathway. That is a very important consideration. We will talk about the importance of increasing the NHS workforce later in our debates. However, will the Minister consider how focusing increased resources on early intervention and prevention will save both money in the end and a lot of distress, as dealing with it early will save patients having to go into more intensive therapies further down the track? It is very important that any increased resources—or, at least, much of them—are focused on early intervention and prevention. I hope the Minister can reassure us of this.

[Baroness Merron (Lab)]

My Lords, if the role of your Lordships’ House is to improve the Bill, I feel that this set of amendments will achieve this. I am grateful to the Minister and his officials for responding to the points which were made so powerfully in Committee and in meetings outside this Chamber. The range of amendments will take us further.

The Minister talked about the introduction of transparency and accountability, which are key in the efforts to improve the provision of mental health services. However, of course, improving transparency and accountability is not an end in itself; it is purely a way of getting us to the right place. What will be important is what this delivers. A step along the way to improving mental health services is definitely being made, but there is an awful lot more to do. For example, the Centre for Mental Health estimates that some 10 million additional people, and that includes 1.5 million children and young people, will need mental health care as a result of the pandemic. It would of interest to understand a little more about how the Government intend to make progress on this once the Bill receives Royal Assent. Will we see a recovery plan in the area of mental health services, backed by a long-term workforce plan, something which we will return to later?

On the policy to bring practice into line with aspiration, and on the funding for and redoubling of effort towards achieving parity, while we are talking about this on a national level, it would also be helpful for the Minister to clarify that it applies to all areas of the Bill’s implementation and that the new bodies set up by the Bill will be expected to treat mental health equally from the outset. For example, it would mean ensuring that the decisions about resource allocation, capital spending, waiting times and priorities were all taken on the basis that mental health must be valued equally with physical health.

The noble Baroness, Lady Tyler, was right to point out that we do not start in a neutral position, because we know that waiting times are considerable, standards of services need massively to be improved and the workforce needs to be strengthened in order to deliver those services. It is therefore extremely important that the Minister in putting forward these amendments undertakes to see the job through, so that we do not just have transparency and accountability for their own sake but we deliver for the many millions who will rely on those services.

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[Baroness Morgan of Drefelin (CB)]

My Lords, I do not want to detain the House for too long, as there is an awful lot of business to think about on Report. However, as I put my name to Amendments 63, 65 and 67, tabled by the noble Baroness, I want to press the Minister on the question of data.

I am advised, as I am sure others are, by really experienced charities, which say that one of the real challenges here, which will be a challenge for the ICSs when they are trying to do a great job in terms of compliance on disparities, is that the data on inclusion health populations is very incomplete. While there have been efforts to collect data on housing status, for example, that has been relatively incomplete and unsuccessful. So what I want to hear from the Minister is how we can be sure that through the development of this commitment to tackling health inequalities with an evidence-based approach, populations such as the inclusion health population are not invisible because the data is so difficult to collect. Is this something that the forthcoming White Paper could pick up? Will it focus on how the health system leaders will get the tools that they need to do a really great job for these populations, who have such complex needs and who really draw on the health service, A&E, et cetera, in a very intense way? There is such potential to make real progress, whether it is in the interests of people coming out of care, sex workers who are really challenged, or homeless people. We are all only a few steps away from that, are we not? So I would be interested to hear from the Minister whether that drive to collect comprehensive data to inform this work can be channelled in some way through a forthcoming policy initiative.

[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.

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[Lord Scriven (LD)]

My Lords, I rise for the first time on Report and declare my interests as laid out in the register, particularly as a non-executive director of Chesterfield Royal Hospital NHS Trust and as a vice-president of the Local Government Association. We on these Benches welcome this suite of amendments, with a caveat of clarification that the noble Baroness, Lady Young of Old Scone, raised, to do with not just the climate but the implications for the environment.

The reason we welcome this suite of amendments is that it is vital that there is mandatory guidance from the centre to all parts of the system in the NHS. The only thing I seek to push the Minister on is that she said the guidance would be out within 12 months. I ask that, as we are in a crisis and this is important, it is done as soon as possible. The reason for this—I have experience of it from Chesterfield—is that some of the procurement or building decisions made today will not come around for maybe three or four years, but the design and implications that start today have life cycle implications for both the climate and environment over a long period. So, I strongly push the Minister to ask that the guidance is out as fast as possible, and we do not wait for the whole 12 months.

[Baroness Walmsley (LD)]

My Lords, I, too, am a member of Peers for the Planet and I congratulate the noble Baroness, Lady Hayman, and the noble Lord, Lord Stevens, on their engagement with the Government and thank them for taking their concerns on board.

I have previously raised the fact that a big way in which the NHS can reduce its emissions is by having energy-efficient buildings, and I should like reassurance that any new buildings and refurbishment of the NHS estate will involve highly insulated and low-energy buildings. There are so many things that the NHS can do by using low-energy lighting, reducing microplastics, using compostable single-use plastic or not using plastic at all and using microwaves to deal with clinical waste, because they are much more energy efficient. How will all this be reviewed after the Bill has passed? Will there be any reporting back on how well the NHS has been able to respond to this challenge?

[Baroness Wheeler (Lab)]

My Lords, I thank the Minister and welcome these government amendments in response to the key concerns raised in Committee about the crucial importance of including the NHS’s duties on climate change and working towards net-zero emissions in the Bill, and the excellent supportive speeches today.

The amendments take on particular significance in the light of the stark warning in today’s UN report that climate breakdown is accelerating rapidly and there is only a brief and closing window of opportunity to minimise its catastrophic impacts. The duties rightly go across the roles of NHS England, integrated care boards, NHS trusts and NHS foundation trusts in relation to the Climate Change Act 2008 and the Environment Act 2021, and address the need for those bodies to have regard to the need to contribute towards compliance with government climate change and environment targets. Of particular importance is the duty of each body to adapt to current or predicted impacts of climate change and, in Amendment 7, recognition of the importance of NHS England guidance on how the climate change responsibilities are to be discharged within the promised 12 months of Royal Assent.

My noble friend Lady Young sought reassurance that the guidance on procurement will cover not just the need for the NHS supply chain to reduce emissions but also include the key environmental targets. I hope the Minister will be able to reassure her on that.

Strengthening the law to integrate an active response to climate change through every layer of the NHS has been welcomed by the UK Health Alliance on Climate Change, representing more than 900,000 healthcare professionals. Noble Lords made clear in Committee that omitting sustainability requirements from the Bill would have been a missed opportunity to enshrine and enforce the NHS’s historic commitment to reaching net-zero targets by 2040, and we are pleased the Government have recognised that.

As we heard from all speakers, the NHS has made huge progress, but this is just the start and there is much more to do. The amendments reinforce the importance of action in those areas, particularly for the new bodies and processes the Bill creates, and that progress will need to be managed, delivered, tracked and reported at every level.

My noble friend Lady Young’s point, reinforcing that guidance on duties across NHS bodies must include not just climate change but also the improvement of the natural environment, is well made. I look forward to the Minister’s response on that.

In relation to reporting, raised by the noble Baroness, Lady Walmsley, I understand from the contributions of the noble Lord, Lord Kamall, in Committee that progress is being made. He referred to NHS England’s green plans, and we are told that every NHS trust and interim care system is expected to have prepared a green plan and had it endorsed by its governing body. For trusts, the deadline for submission to ICSs was 14 January, so it would be good to know how they have done so far and how many trusts have submitted such plans. The next stage is for ICSs to develop “consolidated system-wide plans” by the end of the month, which will be

“peer reviewed regionally and published”.

Are we confident that ICSs will meet that deadline, and what is the expected assessment and timescale for ICSs to report back to NHS England and, subsequently, more widely on this vital issue?

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[Baroness Harding of Winscombe (Con)]

My Lords, as this is my first contribution on Report, I begin by declaring my interest as the recently stepped-down chair of NHS Improvement and NHS Test and Trace.

I commend the noble Baroness, Lady Walmsley, and my noble friend the Minister and support Amendment 31. In Committee, we debated in considerable detail the constituent elements of the ICBs. I think it hugely important that integrated care boards have a loud, strong, forceful voice for mental health, public health and prevention in all its forms, but I also think it really important that we enable a board to be a proper board.

The noble Lord, Lord Hunt, questions whether a board would ever assess its own competence and members. Any really good, functioning board in the public and private sector views that as one of its primary obligations. The first line of defence to ensure that a board is performing well is whether it is actually doing an assessment every year of whether it has the appropriate skills. Yes, you should have second and third-line assessments through the CQC and NHS England, but it is the role of a board, and we should let them do that. I believe that Amendment 31 holds these boards to account to do that.

The amendments we have already debated today, enshrining the obligations around public health, health inequalities and mental health, ensure that that is the clear objective of those integrated care boards. I encourage my noble friend the Minister to hold firm and support his amendments and not the others.

[Baroness Walmsley (LD)]

My Lords, I thank noble Lords who have expressed their support for Amendment 31 and my role in it; it is very kind.

I go back to how this arose. It is to some extent influenced by what the noble Baroness, Lady Harding, said in Committee. It was quite clear that many noble Lords were very concerned that appropriate levels of skills, knowledge and experience were on an ICB so that it would be able to carry out all the functions that the Bill puts upon it; not perhaps just the list that the noble Lord, Lord Kamall, mentioned, because it was not intended to be an exclusive list. The amendment actually says:

“in order for the board effectively to carry out its functions”.

I think there it means all of its functions.

It was quite clear in Committee that the Government had set their face against prescribing all the different people who should be on a board. But there had to be a way of making sure that the board had all the necessary commissioning skills, and the knowledge and experience of all the areas of health services which that board had to deliver. The board had to have the duty to make sure it could do all of those things—perhaps without prescribing everything, which the Government are determined not to accept.

The solution came to me not just because of what the noble Baroness, Lady Harding, said but because of what my noble friend Lord Thurso said to me in private—not on the Floor of the House. He is a very experienced board chair. He called my attention to the National Audit Office advice on best practice in this respect and a paper on NHS leadership, which recommends something very similar: that the board must have the duty to make sure it has all the skills, knowledge and experience to carry out all its functions, keep that under constant review and report on what it has done and how.

It is inconceivable to me that, if ICBs had this duty, there would not be somebody who knew everything that needed to be known about mental health and public health to effectively commission those services. The duty to report is very important, to keep this in constant review every year and to report in its annual report on how it makes sure that it has got all those skills and that experience. I think the CQC would look very carefully at whether the board had actually carried out the duty put upon it by Amendment 31. If there were any gaps in a service which the board had to carry out, and it did not have the right skills, knowledge and experience to do that, the CQC would be very critical. I commend this amendment to your Lordships.

I will also say in concluding that on these Benches we also support Amendment 9. The noble Lord, Lord Bradley, had a very good point. The amendment in the name of the noble Lord, Lord Kamall, which I am supporting, is retrospective because it requires that, by the end of when an annual report comes around, the board has to show what it has done in respect of providing the right people to make the right decisions. From day one, what this House has done on mental health and how important it is, with the Government’s co-operation, is right.

Health and Care Bill

Baroness Walmsley Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 9th February 2022 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

I thank the noble Lord for that information. Before we continue with the Committee on the Bill, I wanted to raise my concerns on the Floor of the House as to the importance of always treating each other with respect and courtesy. It is not the fault of anyone in this House that despite a majority of 80 in the other place, the Government have taken longer than expected to present several Bills to this House for our consideration. Although backed by the other place—I fully accept that—the Bills are very controversial in nature and quite properly attract considerable attention.

On a few occasions when considering the Nationality and Borders Bill last night and into the early hours of the morning, our standards slipped. We have another long day ahead of us today and another tomorrow before we all have a well-deserved break in the Recess. I hope that Members on all sides of the House, no matter what position they hold, will respect and pay proper attention to the advice and guidance as set out in the Companion. Committee is a conversation, different from both Question Time and Report. Shouting “question, question, question” from a sedentary position is unacceptable in Committee. Chapter 4 on the conduct of the House and Chapter 8 on Public Bills in the Companion are helpful and informative. I respectfully suggest that all Members regard it as essential reading.

[Baroness Walmsley (LD)]

My Lords, I add the voice of these Benches to the protest by the Opposition Chief Whip in the strongest possible terms. I regret that the Government Chief Whip and the Leader of the House were not here to hear it. I hope that they will read Hansard, because I have some questions to put.

Do the Chief Whip and the Leader of the House accept that Members of this House have a right to be treated with courtesy and not bullied by members of the Government, that they are able to speak when they have a right to do so under Standing Orders, and that they have a right to have their health and welfare considered appropriately? None of that was respected last night when the House sat until 3.20 am.

I emphasise that my comments are not aimed at the noble Lord, Lord Kamall, who has always been most courteous. I ask the Leader and the Government Chief Whip: do they agree that this is a self-governing House; that the Government, like all Governments, are temporary and cannot override the rights of noble Lords appointed independently of this Government; and that opposition parties have no duty to help the Government get controversial legislation through this House? On the contrary, we have a duty to scrutinise it. This House has built its reputation on intelligent, careful and courteous consideration of issues laid before it. Long may that continue.

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I say these things not to pour cold water on the amendment, because I think it is very worth while. This path could aid a lot of families, but my view of this clause is that it still needs quite a lot of work. I hope the Minister will be able to say, “We think this is probably a good way forward, but we need to look closely and further at it and discuss with the noble Baroness how we can make this system actually work”. A number of technical problems will have to be looked at, and overcome, if it is to be anything other than a clause in a Bill that never gets off the ground.

[Baroness Walmsley (LD)]

My Lords, there is considerable merit in an independent dispute resolution service. I will be very brief, because I believe that at the heart of this is the following: for over two decades, this country has been a signatory to the UN Convention on the Rights of the Child, which recognises that a child has its own rights, independent of its parents. So I was very pleased to hear the noble Baroness, Lady Finlay, refer to the best interests of the child, which will be based on their rights under the convention.

[Baroness Wheeler (Lab)]

My Lords, I thank the noble Baroness, Lady Finlay, for this amendment and other noble Lords who have contributed to this highly emotional and compelling debate about the welfare, care and medical treatment of critically ill children. I also thank Emma Hardy MP for ensuring that this key issue was debated in the course of the Bill’s passage through the Commons and the work that she, other MPs and noble Lords have undertaken with parents and medical staff to help build and develop the framework that is set out in the amendment where care and treatment are disputed: Charlie’s law, in memory of Charlie Gard.

The amendment seeks to mitigate conflicts at the earliest stages, provide advice and support, and improve early access to independent mediation services to prevent the traumatic and bitter legal disputes that we have all seen all too often. Noble Lords have highlighted these, as well as the benefits that the step-by-step processes set out in the amendment would provide for parents and doctors, which are of course central to the consideration of the child’s welfare and best interests. In particular, providing families with access to legal aid if court action takes place would, as the noble Baroness, Lady Finlay, pointed out, ensure that they do not have to rely on raising funds themselves, or on the financial support of outside interests.

Today’s debate has been powerful but has also demonstrated the difficulties with trying to address and resolve such deeply complex issues within the context of an already overloaded and skeletal Bill. Like other noble Lords, I have received the excellent briefing from the Together for Short Lives charity, which does such remarkable work on children’s palliative care to support and empower families caring for terminally ill children. While supportive of much of the amendment, the charity has what it terms “significant reservations” about proposed new subsection (4) on the issue of amending the court’s powers in relation to parents pursuing proposals for disease-modifying treatment for their child after the final court decision.

So, while there is obviously considerable support for the measures set out in the amendment, as we have heard today, the reservations about this and other provisions in the amendment, from Together for Brief Lives and other organisations, emphasise the need for the continued dialogue and discussion that we are not able to have today but which noble Lords have made clear is needed. This has been an excellent debate and I hope the Minister will be able to find supportive ways of taking this vital issue forward.

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[Lord Desai (Non-Afl)]

My Lords, I rise to say that Amendment 297A is obviously very desirable. But, as an economist, I have to say: if we implement this, who will be deprived? GPs’ time is limited and GPs’ numbers are limited, as we all know. Through much of my life in the NHS, all that the GP did for me was prescribe what I needed. It took about five minutes, and the GP did not even have to talk to me; they could look at the computer to find out who I was and what I was doing. It is, quite rightly, only people over 65 who need a caring GP, so we have to devise a system for those who do not need extensive consultation and familiarity with the GP but can be dealt with in a summary fashion. Perhaps we could have junior and senior GPs, so that we could release the senior GPs for this sort of work and have other people for prescriptions and simple tasks.

[Baroness Walmsley (LD)]

My Lords, I was going to speak for two minutes but now I am going to speak for only half a minute. I have one question for the Minister. I know that his department has a small team developing the National Dementia Strategy. Can he can tell us whether any additional capacity is being planned to add to that small team doing this important work? Frankly, without a national strategy, the new ICSs will not be able to measure their performance in their dementia care plans against a national standard. The matter is urgent, because the position of people living with dementia has worsened during the Covid-19 pandemic and, while we are trying to tackle the backlog of treatments for patients with physical health needs, we must not forget those with dementia.

[Baroness Wheeler (Lab)]

My Lords, I thank the noble Baroness, Lady Greengross, for tabling her amendments, which ensure that we consider dementia care in respect of this Bill and return to recognising the impact that the social prescribing of music and arts can make to dementia sufferers, particularly for patients at the onset of symptoms—although I also heard what my noble friend Lord Winston said about the research needed on this issue. Noble Lords have on many occasions stressed their strong support for Music for Dementia and Singing for the Brain, and it would be good to hear from the Minister what progress is being made. We have also had extensive debates on the importance of social prescribing, and of the arts across health and social care settings, so, again, I think we do not need to repeat what has been said.

On Amendment 291, the key thing is the call for the duty to be placed on each local authority and integrated care system to implement the National Dementia Strategy for their own areas. It is a timely reminder of the need for the promised National Dementia Strategy: can the Minister provide a publication date for it, and update the House on its progress and on the increased funding that the Government have promised will be provided for the implementation of the dementia care plan?

My noble friend Lord Hunt’s Amendment 297D is a stark reminder of the Joint Committee on Human Rights’ concerns over the visiting bans operated in some care homes before the pandemic, following relatives’ complaints about their loved ones’ treatment and standards of care. As the noble Baroness, Lady Brinton, stressed, we know that during the pandemic itself the ban on outside visits of relatives and friends caused huge anxiety and suffering among residents and their families alike, and it is very welcome that visiting rules have now been eased, although the need for maintaining PPE, testing and infection control routines and constant vigilance continues.

Vaccination: Condition of Deployment

Baroness Walmsley Excerpts

Thursday 3rd February 2022 Lords Chamber

[Lord Kamall (Con)]

First, I thank my noble friend for giving advance notice of the question, enabling me to try to get an answer. While we do intend to revoke the VCOD, subject to consultation in these sectors, we believe that staff still have an important professional responsibility to be vaccinated. The Secretary of State has written to regulators to review their guidance on vaccination for social care providers and the importance of vaccination in supporting the provision of safe care. We believe that vaccination remains important. In conversations I have had—on the daily calls with the UKHSA, for example—I have been told that even if people believe they have natural immunity, vaccination increases immunity by a further percentage. We believe it is worthwhile encouraging people to take vaccines.

[Baroness Walmsley (LD)]

My Lords, I associate myself with the Minister’s remarks and the Front-Bench contributions about the importance of the professional duty of health and care staff to take the vaccination. However, given the Statement today, it seems we will continue to have unvaccinated staff working in patient-facing roles in hospitals. We do not know about care homes yet, but I look forward to the Minister’s urgent response to my noble friend Lady Brinton’s question about that. What is going to be put in place so that unvaccinated staff and their patients continue to be protected? Will unvaccinated staff be asked to have a negative lateral flow test every day when they are on duty? Can the Minister assure us that they will continue to have appropriate PPE provided for them, for every day that they are working, in every corner of the hospital or care home, and whichever patients they are dealing with?

Personal Protective Equipment: Accounting

Baroness Walmsley Excerpts

Wednesday 2nd February 2022 Lords Chamber

[Lord Kamall (Con)]

There are different ways; some of it is about stockpiling stuff that is still useful and which we would use in future anyway. We are looking at research into testing whether the life of some of our stock can be extended—we are working with some of the best scientists on that. We are also looking at where we can give stock away or sell it on, as all the stock we are passing on meets WHO standards. To give noble Lords one example, we bought lots of latex gloves; usually we do not buy latex gloves in this country because of allergies and, now that we no longer need them, we can give them to a country such as Syria.

[Baroness Walmsley (LD)]

My Lords, those in the VIP lane were 10 times more likely to be awarded a contract, although there was no evidence that they had more expertise than any other company. Of the £8.7 billion-worth of material which could not be used by the NHS, how much went through the VIP channel? What efforts are the Government making to recover public money for material that was unusable for the NHS?

[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.

Health and Care Bill

Baroness Walmsley Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 31st January 2022 Lords Chamber

[Lord Storey (LD)]

My Lords, I shall speak briefly on Amendments 224 and 261 and share my views on fluoridisation. I agree with the noble Lord, Lord Reay, that it is a pity we did not have a proper full debate on this matter.

There is a real problem among young children, particularly those in deprived communities, who have increasing levels of bad teeth—dental decay. You would think that as a result of that situation we would be trying to do something more practical about it, yet we see dental inspections in schools decreasing. When I was first a head teacher, the dental services would come in twice a year to inspect children’s teeth and would give a little note to the parents so they could go to their dentist. The second problem we face is that, as we heard from the noble Lord, Lord Hunt, you cannot find an NHS dentist, particularly in a deprived area, for love nor money. That is a problem for families that cannot afford to use a private dentist, even if one was available.

When I was leader of the council in Liverpool, all political parties together—I have to tell my colleagues—decided against fluoridation, so we took the view that perhaps there was a different way of doing it. We were setting up the network of children’s centres in the early 2000s. We therefore made dental health in the nought to five age group one of the highest priorities in the city council’s strategic plan. We also issued additional guidance to our primary schools, asking them to make encouraging better dental health a higher priority. As a result, 10 years later in 2013, the British Dental Association’s 10-yearly survey showed that a reduction of 28% in caries had been achieved in Liverpool’s schools. The targeted approach achieved an outcome double that identified in the York review as the average caries reduction from fluoridation. We will also have helped many children to develop lifelong good personal dental hygiene habits, which is a crucial part of the strategy.

Whether we have fluoridation or not, we need to be absolutely sure that the journey we are going on is correct. In the meantime, we should look at other ways. We should also look at what our colleagues in Scotland have been doing with their Childsmile project, which has been shown to be safer, less wasteful and more effective, and better value for money. I hope that at some stage we will revisit this issue and have a much longer and more considered debate.

[Baroness Walmsley (LD)]

My Lords, this group rightly began with an amendment about adequate provision in dentistry. As we have heard, there is currently a massive shortfall in provision of NHS dentists and indeed dentists as a whole, so much so that a charity called Dentaid, which normally works in the third world, is now working in Dewsbury and Batley—and possibly in other parts of the country that I am not aware of—because people cannot get free dentistry. The situation is made worse by the backlog of treatment caused by the pandemic, whereby dentists were at first unable to see patients and later had to reduce the number of aerosol-producing treatments they could carry out each day.

I have no doubt that the condition of the nation’s teeth has deteriorated during the past couple of years. Nearly 1,000 dentists left the NHS between 2020 and 2021, according to the BDA. However, problems with access to NHS dentistry predate the pandemic. Government spending on dental services has fallen by a third in real terms in the last decade, and the £50 million one-off injection of funding announced recently will barely make a dent in the unprecedented backlog that NHS dentistry now faces.

However, it is also well proven that fluoride, however administered, can strengthen tooth enamel and help teeth to resist decay. The 2018 report from Public Health England made that clear and did not report adverse effects. In Clauses 147 and 148, the Government intend to ensure that the whole country has access to drinking water with at least 1 milligram per litre of water, the level believed to be most effective in reducing tooth decay without the unwanted effects mentioned by the noble Lord, Lord Reay, and without waiting for local authorities to initiate schemes. I have to say that I believe Public Health England rather than the noble Lord.

I am always in favour of prevention and of reducing health inequalities, and it is claimed that this measure would do both, but there are some issues which I wish to probe. Currently only two areas in the country, Hartlepool and Braintree, have the optimum level of naturally occurring fluoride in their water. Other areas, covering about only 10% of the population, mainly in the north-east and Birmingham, already have schemes initiated by the local authority. I accept that a number of costly and bureaucratic barriers have been identified to more local authorities initiating such schemes, and I understand these clauses are an attempt to overcome them by making national regulations. These would remove some of the consultation costs from local authorities. However, some local authorities are reluctant to give up their local autonomy on this issue and believe their residents should be consulted before fluoridation occurs. This must be considered.

I have some questions for the Minister, which fall into two categories. The first is about costs and where they fall. We are told in the impact assessment that current schemes will not be affected, and existing and future capital costs will continue to be borne by the Department of Health and Social Care. What will be the additional burden on the funding of the Minister’s department of bearing the capital costs for every area in the country? I understand that regulations will allow for future costs to be shared by his department with water companies. What impact is that expected to have on the water bills paid by households, since the companies will undoubtedly try to pass it on to customers?

Water companies can well afford to pay these costs themselves, rather than take the money from the health budget. This is clear from the eye-wateringly high earnings of their leading directors. We know from a briefing from Yorkshire Water that the costs can be considerable. A few years ago, it did a feasibility study when only one area—Hull City Council—was looking into fluoridation. At the time, it estimated the capital cost to be £1.6 million to £2 million and the annual operation costs to be approximately £330,000 per year. These costs would have fallen on Public Health England and the local authority at the time, but under the new proposals they would be covered by the Department of Health and Social Care.

Over recent years, capital investment in water and sewerage services has been covered just by income from water bills, but investment in infrastructure has not been adequate, since we still have raw sewage being discharged into water courses and leaks wasting water at an unacceptable level. So, we can expect the companies to accept some of the cost of fluoridation themselves, without passing it on to the customer.

Can the Minister also say what is the plan for regular measurement of the fluoride content of water, and at what point in the delivery journey will it occur? What will this cost, and where will the cost fall? Will the Government allow companies to pass this cost on to the consumer too, although they can clearly afford to absorb it? The reason I ask is that water companies share water all the time and there is a possibility that, without frequent monitoring, the fluoride content delivered to customers could turn out to be either too high or too low to be effective.

The second category of question concerns what other proposals for reducing the incidence of tooth decay have been considered by the Government, as mentioned by my noble friend Lord Storey. I have dealt with the availability of NHS dentistry, but it is excess sugar and acids in the diet that cause tooth decay. Sadly, poor diet is a major problem, particularly among poorer children, for whom the most common reason to be admitted to hospital is the need for complex extraction of rotten teeth. Fluoride can, of course, can be administered in other ways: either applied by the dentist or by regular use of fluoride-containing toothpaste—fortunately, most toothpastes contain fluoride. However, many children eat too much sugar, drink too many acidic fizzy drinks and do not brush their teeth regularly.

As my noble friend said, there used to be a school dentistry service to check for problems, and dental nurses used to visit nurseries and primary schools to teach good dental hygiene. I have myself sat in on such a session and it was excellent, but I do not believe it happens any longer. Have the Government costed a return to these schemes? As for diet, we will be dealing with that in a later group of amendments. So, while accepting the potential benefits of what is proposed, I ask the Minister to assure the House of the cost-effectiveness of the measures, explain the impact on family budgets and tell the House what other measures are being considered to achieve the same ends, which we all want to see: better and more equal dental health.

[Baroness Merron (Lab)]

My Lords, I welcome the amendments in this group, which focus on the need for universal access to dentistry and the introduction of fluoride into water. As my noble friend Lord Hunt said, they are about treatment and prevention, which are equally important when it comes to considering how we tackle tooth decay and oral health. I am grateful to my noble friend, the noble Baronesses, Lady Northover and Lady Walmsley, and the noble Lord, Lord Young, for their support for these amendments.

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On the issue of face coverings in schools, the agency decided that it was going to happen without any consultation whatever with the Department for Education or local government and education premises. That is because it is not independent. It cannot make independent decisions; it was responding with a knee-jerk reaction based on what Ministers thought was correct. That is why it is important that the amendment in the name of the noble Baroness, Lady Merron, would put this body on an independent footing. So I support Amendment 281, as well as the well-thought-out and central Amendment 285 in the name of the noble Lord, Lord Warner, to meet the absolute crux of what this whole Bill is about.

[Baroness Walmsley (LD)]

My Lords, I too support the noble Lord, Lord Warner. I well remember reading the report of the House of Lords Select Committee on the sustainability of our health and care services in 2017 and being rather jealous that I had not been on the committee, because it struck me as a very interesting one and it produced a very thoughtful and hard-hitting report. The office for health and care sustainability was probably the most crucial of its recommendations. Indeed, I think it would help the Government in making their decisions, because the body itself would not make the decisions but be independent, report directly to Parliament—which I thought was crucial—and look forward as far as it needed to look in a rolling programme of forecasting, assisting Ministers to make the right decisions.

Given the ageing population, resulting from improved healthcare, it had become very clear that funding was not keeping up, and indeed might never keep up unless things were done differently. That is why the committee chaired by the noble Lord, Lord Patel, also recommended the sort of integration that is at the heart of this Bill. It also reported on the lack of alignment between the funding of health and social care, which has resulted in the current gap in pay, particularly in the care sector, and the consequent staff shortage.

This was an excellent recommendation and, unlike other recommendations in the report, it has not been taken up—yet. The key thing about the body is that it would be authoritative, independent and unable itself to meddle in delivery. I would have thought that any Government would welcome the existence of such a body to do a lot of the work to establish what needs to be done and when. Unlike politicians of any political colour, it would be trusted by the public and would be staffed by experts able to gather and analyse the data. All Governments have their own focus—all Secretaries of State for Health have their own focus—and their own political priorities, which often depend on whatever the latest scandal has been, resulting in pressure from the public. Public health is too important for this, so I therefore support this amendment.

[Baroness Thornton (Lab)]

My Lords, we have had an important debate here, and I thank the noble Lord, Lord Warner, both for bringing these amendments before the House and for explaining their background and the important role of the Select Committee. We have debated it several times in your Lordships’ House and everybody in the House, apart from the Government Front Bench, it seems, thinks it is a brilliant report that should be acted on. This seems to be an opportunity for the Government to take on board some of its major recommendations, and this is one of them. We would support that, and we hope that the Minister might have some good news for us on that.

I also wish to speak briefly to the amendment in the name of my noble friend Lady Merron. The argument has already been made by other noble Lords—I am having a slight sense of déjà vu because I am sure I made a speech along the same lines in 2011—about the importance of Public Health England having a statutory basis to its work to give it transparency and accountability. The last two years must show us that that is the right thing to do. That is why I agree with my noble friend’s amendment to put the new UK Health Security Agency on to a statutory footing. As far as I can tell, in the past 20-odd years since I came to your Lordships’ House, every time that various Governments have mucked about with public health, they have got it wrong. Let us use this opportunity to get it right.

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[Lord Vaizey of Didcot (Con)]

My Lords, I support the amendment of my noble friend Lord Moylan, which I was very proud to sign. I echo what the noble Lord, Lord Aberdare, said about knowing people who have died of this terrible disease. By coincidence, having signed the amendment, I had lunch with a friend whose brother suffers from pancreatic cancer. Luckily, however, he had it diagnosed extremely early because he had a blood test that identified the biomarkers that told him that he could have pancreatic cancer. He is now being treated and has a good chance of survival. Then, by coincidence, I visited my GP to have a blood test to test for prostate cancer. Luckily for me, the results were good.

I have a mild obsession about why we are not better in this country at implementing diagnostic procedures. When I went to see my GP to talk about prostate cancer, I asked her what kind of tests were available to me, as an NHS patient, for pancreatic or other types of cancer. As a layman reading the newspapers, almost every day there is news emerging of new blood tests that could identify cancer early. It is one of my trite dinner-party lines—I hesitate to say this, because there are so many experts in the Chamber this evening—that, in effect, one can almost argue that one has cured cancer if one is able to diagnose it early enough. That is why I welcome this emphasis on looking at outcomes rather than process in how we treat cancer. I hope that over time, it will shift the emphasis away from the treatment of cancer to how soon we can diagnose it.

I therefore support the amendment and ask the Minister a simple question: when will the test for pancreatic cancer be potentially universally available to NHS patients? I found it odd, talking to my friend over lunch, that his advice to me was to get myself on a trial as soon as possible to see whether I could get a test to get a diagnosis. It seems to me that we are lagging behind in the opportunity to diagnose cancer as early as possible and treat it as effectively as possible which, of course, will enable us to save a great deal of money.

[Baroness Walmsley (LD)]

My Lords, I declare an interest as a member of the All-Party Parliamentary Group on cancer and a great supporter of John Baron’s campaign on outcomes. Of course, as noble Lords across the Committee have said, the key to getting better outcomes is early diagnosis, rigorous audit, and proper dissemination across the country of what we know works. I certainly support what the noble Lord, Lord Moylan, is trying to do.

I do not oppose the government amendments outlined by the Minister, despite the rather unusual fact that they were only agreed with the Opposition Front Benches at the last minute—that is, this morning. I thank him for clarifying that; although cancer outcomes were the principal focus of Clause 4, they are not the only objective that should relate to cancer patients. The department has consulted with cancer charities, which, of course, represent many thousands of patients, to ensure that the new legislation meets their needs. Can the Minister say when the effects of Clause 4 will be reviewed and any action, if necessary, taken? Although generally approved by the sector, Macmillan is still concerned about how a focus on survival will affect those who, sadly, have terminal cancer and do not expect to survive. What they need is palliative care and measures to make the quality of their last few months of life as good as possible. Could this issue be a key part of any future evaluation of cancer care?

[Baroness Merron (Lab)]

My Lords, we are very pleased to support the government amendments that we have heard outlined. Crucially, they focus on cancer outcomes. As the noble Baroness, Lady Morgan, underlined, that includes survival, quality of life, experience of treatment, end-of-life care as well as diagnosis—in other words, the whole experience in treating somebody as a whole person on a journey that they may have to face. I congratulate the Minister on bringing the amendments forward. I also thank the noble Lord, Lord Moylan, supported by the noble Lords, Lord Aberdare and Lord Vaizey, and others, for highlighting the fact that pancreatic cancer has such an aggressive nature, and yet the symptoms are so silent and often misunderstood that it presents a particular challenge in the context of the care that we are speaking of today.

A focus on outcomes that covers matters other than treatment will be particularly crucial following the backlogs that the pandemic has inevitably led to, with delays in people seeking check-ups and treatment. Macmillan has let us know that more than 31,000 people in England are still waiting for their first cancer treatment, and it has also said of the Bill that for those living with cancer

“not a lot will look different.”

It is therefore crucial that the Minister assures noble Lords that stakeholders are supportive of the changes outlined in this group.

On the point about survival rates lagging behind those of other countries, that is not because the National Health Service is worse than other healthcare systems at treating cancer once it is detected but because it may not be as good at catching cancers in the crucial early stages. In other words, late diagnosis lies behind our comparatively poor survival rates. A key advantage of focusing on outcome measures is that it will give healthcare professionals much greater freedom and flexibility to design their own solutions, which could include running wider screening programmes and better awareness campaigns, and establishing greater diagnostic capabilities at primary care. A further advantage of this new focus is that it will better align NHS priorities with patient needs, which, after all, are core to our discussions on the Bill today.

I have a final and gentle word for the Minister to back up the introductory comment of the noble Baroness, Lady Walmsley. It is of course usual to consult the Opposition and others in advance to ensure that amendments are acceptable and do what is required—in other words, to strengthen the case. I know that this did not happen until very late in this case, and I am sure the Minister will not wish to repeat that practice. In summary, however, we very much welcome these amendments.

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[Baroness Finlay of Llandaff (CB)]

My Lords, this group of amendments is concerned with rehabilitation services. Very briefly, because the hour is very late, I will set out why it matters so much.

People in hospital, as the Minister said previously, lose muscle mass at an alarming rate when they are confined to bed. They risk thrombosis, lose their ability to balance, their confidence and their social contacts, and can become lonelier, isolated from friends and family, and depressed as they see themselves able to do less and less. They then become terrified of going home and often feel quite dumped when they get home because there is a sudden cliff edge from being supported in an environment to feeling like there is no one there. That same cliff edge also happens for patients when they leave intensive care units and go from the very intensive care down to a general ward—so we have huge steps in our system at the moment.

Assessment in hospital, as has often happened, does not often make any sense, because people know their own home. So assessing whether someone can make a cup of tea in a hospital kitchen may bear no relationship at all to their own kettle, their own kitchen, the floor, where they keep things, and so on. They need to be in their own home to be assessed. In their own home, there are often trip hazards, if they are not detected, and if people are not supported to navigate around their own home and furniture, they will have a fall and end up back in hospital very quickly. They need seven-day support at home, because they need to have people whom they can contact.

The problem is that, at the moment, recovery and maintenance of personal independence, although central to the Government’s long-term ambition for social care services, just do not seem to be integrated. In the document, People at the Heart of Care, there is a reference on 68 occasions to the importance of the role of adult care services in maintaining independence for people at home in the community, but there is no mention of local authority rehabilitation services at all.

Rehabilitation services in the community are not subject to regular monitoring and inspection. There are no consequences for poor or absent provision beyond individual complaints, which is why this amendment proposes that they should be brought into the purview of the Care Quality Commission. In the other place, the Minister Edward Argar stated his belief that services were already covered by the existing legislation. But that is not the everyday experience in operation. For example, if we look at vision rehabilitation services, in an audit undertaken by the RNIB, half of the lead counsellors for rehabilitation had no idea that vision rehabilitation was in their remit.

I shall move on rapidly to Amendment 241, because these amendments are all linked. I should have said at the outset that these have been proposed and supported also by the Chartered Society of Physiotherapy, of which I am president. In this amendment, in large part, professions involved in local authority rehabilitation are regulated bodies with recognition in health, such as OTs, physios and speech and language therapists. But there are other people in local authorities involved in providing rehabilitation who are currently completely unregulated and unregistered, so the Rehabilitation Workers Professional Network is currently seeking registration with the Professional Standards Authority in order to take this group of staff on to a list of statutorily regulated social care staff.

Amendment 306, also in this group, would bring local authority reablement and rehabilitation activities, defined by care and support statutory guidance as tertiary prevention, into regulation and enable the Secretary of State to require information on how the service is operated. Anecdotally, there is wide, unwarranted variation in both the quality and breadth of service offered across England. There is no centralised reporting of performance. Bringing these services explicitly into regulation would enable NICE to develop guidelines and quality statements that could be used to inform the quality of provision of services, which, as I have already said, could then be properly inspected. We might then get nearer to having a level playing field.

I also have my name to the amendment of the noble Baroness, Lady Greengross, which is about hospital accommodation, and I will speak to it briefly. At the moment, we have a severe shortage of beds. We know that patients come out of ICU to general wards, and there are patients who cannot then be discharged to home. Often, they are in that twilight where they are really not well enough to go home. They need more rehabilitation, they need more support, but the hospital is deeming them fit to discharge because of the incoming pressure on their beds.

If we had some more step-down beds, we could provide care in much more imaginative ways, such as happens in some parts of Europe, where, for example, family members are expected to come in and help with some of the basic care—feeding, personal hygiene and so on—of their own relative, as they all get used to rehabilitating together, so that that person can go home with that family member understanding how to care for them and what to do, and therefore being able to support them better in the community and pick up early warning signs.

We need to learn from the military rehabilitation units and the new NHS national rehabilitation centre that is being built near Loughborough, because there is evidence that if you can move people through the system more appropriately and get them back home, they recover better and quicker and do not risk that deterioration I referred to at the beginning. A community rehabilitation plan would improve co-ordination, integration of rehabilitation units and community rehabilitation. I beg to move.

[Baroness Walmsley (LD)]

My Lords, numerous reports from Select Committees of your Lordships’ House have recommended that the NHS and care system do things differently in order to use resources efficiently while providing better care and independence for patients. It is well known that most of us cost the NHS more as we get older, particularly if we have multiple morbidities. This is why the Government launched the Ageing Society Grand Challenge—to achieve five additional years of healthy life by 2035. So your Lordships’ Science and Technology Committee looked into this and published a report on 15 January last year. Sadly, we had to conclude that the Government are not on track to achieve this.

Health and Care Bill

Baroness Walmsley Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 31st January 2022 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, a very compelling and, indeed, conclusive case has been made by the noble Lord, Lord Blencathra, and other speakers in favour of this amendment, and I hope the Government will accept it. I particularly commend the suggestion made by the noble Lord, Lord Rooker, that the answer is there for us in science. I have only one question, because I have no intention of repeating all the excellent comments that have been made. This morning, I went into the Bishops’ Bar and picked up a box of lateral flow tests. On the box was written, “Made in China”. Can the Minister explain what efforts have been made to ensure that noble Lords, in their attempt to protect others and themselves, are not unwittingly supporting forced labour and slavery?

[Baroness Redfern (Con)]

My Lords, I rise briefly to support this amendment, and I apologise for not attending Second Reading.

This amendment requires the Government to perform a risk assessment on whether there is a “serious risk of genocide” in a region from which it is sourcing—not to make a genocide determination. It is the UK’s obligation under international law, as a signatory to the genocide convention, to perform such a risk assessment. We have heard many harrowing stories, which we find so difficult even to believe. Uighur identity is being erased: future generations are lost through forced birth-prevention measures, and millions have been detained, tortured and violated in concentration camps.

The incorporation of this amendment would send a clear signal to both the Chinese authorities and the international community that the UK is committed to ridding its supply chains of forced labour, fulfilling its obligations under international law and protecting Uighur people from genocide. The amendment is an opportunity to offer the Uighur community accountability for genocide and crimes against humanity, and I support it.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, after this rich and informative debate, I will briefly make two points and offer the Green group’s support for all these amendments.

I share the shock expressed by the noble Baroness, Lady Tyler, and others that we are in a situation where in the House of Lords we are trying to put the situation back to what it was before because the Bill is making it so much worse.

I particularly want to address Amendment 269 about young carers. I should perhaps declare that I have never been carer—I have not been in that situation. But I want to share a little bit of what I learned from Sophie Dishman, who I met in 2015, when she was a student at the University of Sunderland. She told me that she became a carer at about the age of 12, but that it was only when she was 18 that she realised that she was a carer—a point that many others have addressed. As well as continuing to care, she created a campaign at the University of Sunderland to inform others about the situation and perhaps help others identify themselves as a carer. She produced a very clever, witty, attractive tote bag, with the line, “Being a carer at uni can be a lot to carry around”, a check list of all the things that you might have to do being both a student and a carer, and a useful leaflet, designed for staff in particular, showing signs that a carer might need help.

I want to make the point, which I do not think anyone else has made, that young carers are by nature people who have developed an enormous amount of capability, knowledge and skills. They are amazing individuals. It is not only the right thing to do but in society’s interest to make sure they are able, as the noble Lord, Lord Howarth, said earlier, to flourish and develop those capabilities. It is in our interest to do that.

I want to point to an article that has been out for only a couple of weeks, in volume 27, issue 1 of Child & Family Social Work. The headline is

“It’s making his bad days into my bad days”,

and the article is about young carers in the Covid emergency. This is where we are now. It is about just how much more difficult the withdrawal of services has made it for carers, particularly young carers. We have a huge, as yet uncertain, but certainly large, burden from long Covid, and many people will be taking on huge caring responsibilities because of it.

[Baroness Walmsley (LD)]

My Lords, if the noble Baroness, Lady Pitkeathley, is the general, we are all her foot soldiers. There have been some excellent speeches. In particular, the noble Baroness outlined for us what are, I hope, the unintended consequences of what the Government are doing in their proposals about discharge to assess. It does not seem right that it is up to this House to put back the rights and abilities of carers to do their caring without too much impact on themselves. I hope the Minister heard what the noble Baroness, Lady Pitkeathley, and others, such as the noble Lord, Lord Warner, said about that. We heard from the noble Baroness, Lady Hollins, how much worse the situation has been for so many carers—in particular those who care for people with learning disabilities or mental health problems—during the pandemic, when, unfortunately, it was necessary to withdraw certain services that they normally rely upon. I hope that, when we have heard the Minister’s response, we can come back to Clause 80 on Report if we are not satisfied with the Government’s response, because the situation is not good, even now.

I am grateful to Carers UK and Barnardo’s, which have given us some dreadful horror stories about the situation of carers when the person they care for is being discharged from hospital. One of the worst that I read about was when the carer was only told when the person being discharged was actually in the ambulance on the way home. They had to run around trying to get a commode, which that person would certainly need when they got home. The situation is so much worse for a young carer who does not necessarily know their way around the system in the same way that an adult carer might. Although I support all the amendments in this group, that is why I added my name to Amendment 269 in the name of the noble Lord, Lord Young of Cookham. It is all about the need to identify and ensure appropriate support for young carers before a patient leaves hospital. I really take on board my noble friend Lord Scriven’s view that you should not do it at the end of the stay in hospital: you should start thinking about it when the person goes into hospital.

Caring for a sick or disabled person, no matter how strong the bonds of love, is a difficult and exhausting challenge. It is hard enough for adults, the majority of whom, as we have heard from my noble friend Lady Tyler, are women; we have heard about the effects on their finances and pensions. Many adults do not feel equipped to do it adequately, and it is even harder for children. How can a child be expected to have the knowledge and skills needed to care adequately for an adult and, at the same time, benefit from education and prepare for their own future life?

We know that circumstances sometimes put children in this position, but it is essential that public services provide as much support as possible. However, we know that, although it is estimated that there might be around 800,000 young carers in the whole of the UK, sometimes even their school does not know who they are. In some cases, the young carers themselves prefer it that way, because they see it as a stigma or something that their friends might not quite understand; but it does mean, of course, that they do not get the help that they need, and neither does the person being cared for.

I agree with the noble Baroness, Lady Wheeler, that a proper assessment must be done either before the patient leaves hospital or very promptly post discharge. I hear all the problems about that; yet, carers, according to an ONS report in 2017, save the state more than £60 billion every year, which is more than is spent on formal caring—although it is not clear how much of that is saved by young carers. On the other hand, it has been assessed that a family with a young carer has an income, on average, £5,000 a year lower than other families—so these families are often poor too.

Local authorities already have considerable duties relating to identifying, assessing and supporting young carers, and we have heard of at least two very good schemes. Many of them do it very well, despite the fact that some of these young people are hard to find. However, it is essential that some duties also apply to the NHS, and they must not be lost in the move to integrated care systems. Adequate focus must be placed on these duties by the ICB having a rigorous system or framework to ensure a process for assessment. As my noble friend Lord Scriven pointed out, this is step one in ensuring that needs are subsequently met.

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

My Lords, I thank all noble Lords for their contributions to this debate. We are looking to move towards a more integrated care system for precisely some of the reasons that noble Lords have laid out: that a patient is discharged by a hospital but it is not done in an integrated way. As the noble Baroness, Lady Wheeler, said, during the pandemic local authorities and the NHS developed innovative ways to support better discharge from hospital to community care, and what we want to see is discharge to assess as one model. In some cases, it might be the best model: for example, where people are over the age of 80, the longer they stay in hospital, the more you see muscular deterioration. That is one of the reasons given for why, in some cases, discharge to assess might be the most appropriate.

Health and Care Bill

Baroness Walmsley Excerpts

Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Lord Warner (CB)]

My Lords, I want to briefly make clear my support for this group of amendments and try to be consistent with what I said on the previous group. The only amendment which causes me to have pause for thought is Amendment 183. The NHS, perfect in every form of course, has been known to have its arteries fur up occasionally. Sometimes there is a need for scale in some services. I want to mention three or four services where scale, after clinical consideration, is important. Pathology is a good example, where we need to have more scale than many of the local pathology departments. Another one, which the Royal College of Surgeons has advocated, is elective surgery hubs, which may mean taking stuff away from a particular local hospital. Another good example is the issue of stroke specialisation, which is beneficial for patients. I have given you three examples where we do not want to totally neutralise the Secretary of State. Sometimes Ministers have a use; it may be few and far between, but occasionally they have some use. We do not want to say that you cannot ever be a catalyst for change. That seems a bit drastic in Amendment 183, and I ask the noble Baroness, Lady Cumberlege, to think about that, because sometimes scale is important, with clinical advice for the benefit of patients.

[Baroness Walmsley (LD)]

My Lords, I am in favour of surgical excision. I oppose the powers of the Secretary of State in Clause 40 and Schedule 6 to intervene in decisions on reconfiguration of health services. Far be it from me to want to protect Conservative Secretaries of State for Health from themselves, but I warn that if they use these powers they will eventually get the blame.

The noble Lord, Lord Stevens, gave a number of very good reasons why this clause should be deleted from the Bill. My reason is somewhat different. I think these powers are very dangerous. We have recently seen how the Government’s powers to provide or withdraw funding from a proposal, let us say, to build a new school or improve infrastructure in a particular constituency have got them into trouble. We have heard allegations made against Government Whips by Members of Parliament of actions which could be criminal offences of bribery. It is alleged that, in seeking to ensure support for their leader, they are threatening Members of Parliament that funding for their projects, which have already been declared to be in the public interest of their constituents, will be withdrawn unless they behave in a certain way, so political considerations would trump public interests.

Like the former Member of Parliament to whom the noble Lord, Lord Hunt, referred, all politicians know that the provision of a new hospital or clinic or, on the contrary, the closing of a healthcare setting are very sensitive considerations in elections. All parties ensure that the voters know their views on these matters at election time and in between elections. The Prime Minister knows this. Why else would he put such emphasis on his promise of 40 so-called new hospitals by 2030 if this were not the case? It makes a good headline, even if we know that some of them are not new and some of them are not hospitals.

The powers of reconfiguration sought by the Secretary of State in Clause 40 would give the Government the ability to change the decisions of those put in place locally and well qualified to make them in a non-partisan and needs-based way, thus allowing the Government to wield unwarranted political power. It is probable that this Government would not be able to resist doing so, for the wrong reasons, and it is incumbent on all parties to stop them by deleting Clause 40 from the Bill. Indeed, I do not think that I would be in favour of giving these powers to any Government of any political party; they are just too liable to be misused.

[Baroness Thornton (Lab)]

I think the Minister is probably getting the message by now. I shall speak to my Clause 40 stand part debate and the amendment in the name of my noble friend Lady Merron. Somebody said earlier that we can be sure that the proposals to allow greater powers for the Secretary of State to intervene in reconfigurations is not something that the NHS asked for. That is almost certainly true.

I congratulate the noble Baroness, Lady Cumberlege, on her great coalition- building; she is very good at building coalitions in support of the things that she cares about, and she has definitely managed to do that with this group of amendments.

Noble Lords have pointed out that, at the moment, we have a system which works. It may be slow, and it is absolutely true that it has processes which take too long, but there are elements of public and patient involvement through consultations. The changes made in 2012 under the noble Lord, Lord Lansley, brought in four tests and some rigour of external independent evaluation. The core of that process still exists. As a non-executive member of the board of the Whittington, I can say that this is exactly the kind of thing that we have been involved in in our own hospital.

The consultations might be improved, but they will not be improved at all by this proposal. In fact, I think that this clause is very odd indeed. It is a bad idea, and it adds nothing to the core of this Bill and its central aim, which is to grow place-based independent and innovative healthcare, and it probably needs to go.

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[Baroness Neuberger (CB)]

My Lords, I declare an interest as chair of University College London foundation trust. I want to echo everything that has been said. I do not really understand why what was a carefully negotiated agreement seems to have been reneged on. I think it would be great to have some kind of explanation from the Minister as to why that should be the case.

I rather agree with the noble Lord, Lord Lansley, that some of those freedoms for foundation trusts are essential, and that fettering foundation trusts too much will not do much good. I really want to agree with everybody and not waste any more time, but please can we have an explanation?

[Baroness Walmsley (LD)]

My Lords, I have added my name to the amendments in this group, so ably introduced by the noble Lord, Lord Crisp. The noble Lord, Lord Lansley, asked: what is the problem to which Clause 54 is the solution? But I want to know why the Government think that Clause 54 is the solution to the real problem. The real problem is that, over recent years, the funding focus has been on revenue to support the greater demands made on the health service, and, apart from occasional injections of extra capital funding, capital budgets have been inadequate. In the meantime, hospital trusts of both types—foundation and NHS—have found it impossible to keep up with the need for repair and maintenance to buildings and plant and, crucially, to invest in modern technologies that would enable them to deliver more effective care.

An NHS Confederation survey prior to the spending review in October last year found that 81% of leaders said an insufficient capital settlement could impact their ability to meet estate and service safety requirements, and 69% of leaders said a poor capital settlement threatens their ability to fully embed digital transformation in their care and even hampers their efforts to maintain staff levels or keep appropriate records of patients who need elective care. Many of our hospitals and clinics are located in very old buildings and some certainly show it, but capital funding has not kept up with demand for years, and this new Secretary of State power in Clause 54 will not solve the wider problem. St Mary’s Hospital in Paddington will need £1 billion to repair the hospital or services could be shut in six to nine years. Many buildings on the site date back to the hospital’s founding in 1845. One part of the hospital can no longer be used, as the building will no longer support the weight of modern hospital beds.

Annual statistics show that each year we do not invest enough and the problem only becomes bigger. We must keep reminding the Government of the consequences of this. It is worth noting that many areas of the country with the worst health outcomes have older estates, so upgrading these estates will lead to better outcomes for these populations. This is a health inequality issue. The problems are not confined to England. I could tell noble Lords some terrible stories about my local hospital in Wales, where health is devolved. It is easy to find examples of maintenance issues from hospitals, as these get a lot of coverage. The headline “Hospital roof crumbling” is always of interest to local media. However, there are also thousands of small community hubs and mental health trusts that desperately need new and updated facilities and equipment too, and they cannot shout as loudly. The backlog currently stands at £9.2 billion, with half of that, as we have heard, described as involving a high or significant risk to staff and patients.

The new powers for the Secretary of State proposed in Clause 54 would restrict the spending of any individual foundation trust in the same way as NHS trusts are currently limited. This may appear to be fair, and I do not oppose the principle of the Secretary of State having the power. However, it appears to me to be contrary to the principle of freedom of the foundation trusts as outlined by the Government when they were set up, and certainly contrary to the agreement made by NHS England and NHS Improvement with the sector through the September 2019 legislative proposal mentioned by the noble Baroness, Lady Neuberger, which was the result of detailed negotiations with NHS Providers on behalf of their foundation trust members. The reason given by the Government is that this is in order to avoid the overall health budget being exceeded. However, the power needs to be a very narrow reserve power, to be used when all else has failed, and that is what these amendments would ensure.

The Health and Social Care Committee in another place has made it clear that the powers should be used only as a last resort. It has to be remembered that, if a repair needs to be done on the basis of health and safety but is not done, it is the trust that will be blamed for any harm that comes to staff or patients, not the Secretary of State. They are accountable, and that is right, but it does not help them to keep people safe. The noble Lord, Lord Crisp, has tabled this group of amendments to narrow the scope of the power, to ensure in outline what must be done before it is used and, crucially, in my opinion, to require the agreement of Parliament. Currently, the proposal, like many others in the Bill, cuts Parliament out completely. Where the Government are proposing to wipe out an agreement with the sector which is only just over two years old, there must be compelling reasons, mitigating actions and parliamentary scrutiny.

[Baroness Merron (Lab)]

My Lords, I am grateful to the noble Lord, Lord Crisp, for introducing this group of amendments and setting out for your Lordships that what we need to see is a reasonable system of checks and balances which will serve financial flows and objectives and where, if tensions arise, they can be resolved quickly, fairly and transparently. Certainly, these amendments provide for this.

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[Earl Howe (Con)]

I am grateful to the noble Lord, Lord Crisp, for bringing this debate before the Committee. I have listened to him and other noble Lords with care. Before I turn to the detail, it may be helpful if I explain the reason why Clause 54 is in the Bill.

Clause 54 originated as a legislative proposal made by NHS England and NHS Improvement to the Government in 2019. In making this recommendation, NHS England, under the leadership of the noble Lord, Lord Stevens, worked closely with representatives of the foundation trust sector. The key principle behind this clause is a recognition that the interests of the whole system should be prioritised in decisions about capital spending while also respecting the freedoms and accountabilities of NHS foundation trusts.

The noble Lord, Lord Crisp, asked whether it was our intention that the power in the clause would be a last resort—absolutely yes. Clause 54 is a reserve power to be used only in extreme circumstances to avert the risk of a foundation trust pursuing its own private capital objectives—if I can put it that way—that are not prioritised at a system level. I say to my noble friend Lord Lansley that that is the potential mischief that the clause is trying to address.

The control will operate in the context of the new NHS capital regime, introduced in 2020-21, at ICS area level with planning at a system level to take a holistic view of the local healthcare needs and balancing the allocated operational envelope for providers at that level. Having a power to set capital spending limits for NHS foundation trusts, as can already be done for NHS trusts, ensures an equitable distribution of capital to better enable the investments with highest priority and that achieve the greatest benefits for patients.

At this point I will push back, in the nicest possible way, at the noble Baroness, Lady Walmsley, about the actual level of capital spend. At the spending review 2021, capital spending was set to increase over the Parliament to £32.2 billion for the period from 2022-23 to 2024-25. That includes a £5.9 billion capital investment for the NHS to tackle the backlog of non-emergency procedures and modernise digital technology. As a result, the Department of Health and Social Care’s core capital budget will reach its highest real-terms level since 2010.

[Baroness Walmsley (LD)]

Governments always tell us how much money they have spent, but the question is always: has it met the demand? The money that the Minister has just mentioned is to try to cover the backlog of elective procedures; it does not cover the backlog of repairs.

[Earl Howe (Con)]

There will be money to address the backlog of repairs within that total.

Of course, it is our intention that a capital limit would be imposed by NHS England only if other ways of resolution had been unsuccessful. I will take the Committee through some of the detail, because it is important.

Amendments 188 to 192 would further restrict how the power can be applied. Amendment 188 would modify the clause by inserting “individual trust”. This modification is unnecessary because new Section 42B already ensures that an order relates to a single trust.

Amendment 191 would limit the order to one financial year, but, instead of that, the guidance prepared by NHS England will set out that any capital expenditure limits will apply to individual, named foundation trusts. We envisage that most will apply for the period of budget allocation, which is a single financial year.

Amendment 189 would insert steps that NHS England must take before applying the control and limit when an order may be made. The amendment also links the power with the capital planning function held by ICBs in new Section 14Z54. That plan may not always relate to a single financial year and can be amended in year; for example, for big capital projects, the plan could be set for several years, and in such a scenario it would be difficult to determine whether a foundation trust exceeded the plan in the early years. Amendment 189 would undermine the ability to impose the limit in a timely way and would mean that any limit could realistically be applied only when an overspend had already occurred or was committed to. That would risk funding being unfairly taken away from other areas.

Amendments 190 and 192 contain a requirement to lay a report before Parliament alongside a statutory instrument containing the order. That would cause significant delays in the power’s application. There is already a requirement in the Bill for NHS England to publish any orders which place a capital limit on a foundation trust and for guidance to set out the circumstances in which it is likely to impose a limit. We expect the guidance will also state that representations made by the trust will be published by NHS England.

As I mentioned, it is our strong view, supported by NHS England, that the powers and safeguards in the Bill create a proportionate and fair balance. These measures will ensure that if a foundation trust were actively to pursue capital expenditure that is not aligned with local priorities or affordable within local budgets, there is a means to prevent this as soon as possible.

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[Baroness Fraser of Craigmaddie (Con)]

My Lords, I rise partly because my noble friend Lord Forsyth referred to me earlier and partly because I wanted to clarify what is happening in the Scottish Parliament. There is not actually a Bill in front of the Scottish Parliament. The Orkney MSP, Liam McArthur, carried out a consultation which was very wide-ranging and closed only at the very end of December. Liam McArthur has reported that the submissions to his consultation were wide-ranging and unprecedented, and I look forward with great interest to reading some of them. You can look some of them up. I commend the Scottish Partnership for Palliative Care’s website; its submission is published there. The Neurological Alliance of Scotland also published a submission—I declare an interest because I am a trustee of the latter.

Both those submissions illustrate that this is a very complicated issue, as noble Lords have acknowledged, and there are many things that need evening out before we even get to potentially having draft legislation—a Bill or whatever it is; I am still learning parliamentary procedure. I find it interesting that my noble friend Lord Forsyth mentions that there might be a majority for assisted dying in the Scottish Parliament. I remind him that there is currently a majority for independence in the Scottish Parliament, but that does not mean that the people of Scotland want independence.

In my short time in this House, I have seen many amendments that may have been worthy in their own right but were in the wrong place in the wrong Bill. I think Amendment 297 in the name of my noble friend—I feel very nervous suggesting this to such an esteemed colleague—may possibly be the wrong amendment in the wrong Bill.

[Baroness Walmsley (LD)]

My Lords, I rise to speak on my own behalf; I am not representing anybody. The substantive issue is a conscience issue. I do, however, support the amendment in the name of the noble Lord, Lord Forsyth, because I think it is a discussion whose time has come. I am very impressed and pleased that noble Lords have resisted the temptation to discuss the substantive issue this evening, because all of us here understand—unfortunately, many outside do not—that this amendment is not about the substantive issue.

However, I am somewhat disappointed that the noble and learned Lord, Lord Mackay of Clashfern, wishes to knock it out on a procedural point. I think it is much more important than that. The noble and learned Lord is a wily old politician, and he knows very well that if you want to defeat something, it is often a very good idea to try to get rid of it on a procedural point. He suggested that we should use the Private Member’s Bill procedure. He has been in this House long enough to know that very few Private Members’ Bills are taken up by the Government and given time, and if they are not given time, they are going nowhere. But it is clear that this country wishes to discuss the matter and have Parliament decide on it.

The noble Lord, Lord Moylan, suggested that we cannot put anything in the Bill that the Government do not want to do. I remind him that every time we defeat the Government on an amendment, we are asking them to do something they do not want to do—and we did it 14 times last week on the policing Bill.

I have one other point. The right reverend Prelate the Bishop of Carlisle talked about vagueness. I think the noble Lord, Lord Forsyth, has been deliberately vague, because it is for the draft Bill to be specific. That is important because we need something very specific to discuss, with specific powers and safeguards that Parliament has put in. Without that, we would have all the fear that we have around the country, much of which has been expressed in our inboxes in these last few weeks. People are afraid of what might be in the Bill and what Parliament might pass, and only if we have a specific set of proposals in front of us can we amend it to put in the proper safeguards. Parliament can then decide, and people can take their view about it. I think that will take away a lot of the fears of people who believe that there will be no safeguards, because I am convinced that this Parliament would put in proper safeguards. If it did not, a lot of noble Lords would suggest some that jolly well should be there, and rightly so. For those reasons, I hope the Minister will consider the amendment in the name of the noble Lord, Lord Forsyth.

On the amendment in the name of the noble Baroness, Lady Meacher, again, I am so glad that she said it is a probing amendment, because other noble Lords have suggested that the drafting would need to be changed to avoid some unintended consequences. I am quite sure that the noble Baroness would do that if it was more than a probing amendment. She is asking for something that patients need: choice at the end of life. I hear what the noble Baroness, Lady Finlay, said about what is already in place. She is an expert on this. It could well be that a conversation needs to be had about whether there needs to be anything further in legislation to strengthen the availability of what the noble Baroness, Lady Finlay, talked about, which sounds absolutely excellent. So I am not expressing a definite opinion on that amendment.

I hope the Minister will consider the amendment in the name of the noble Lord, Lord Forsyth, because we, as practical politicians, know that in the real world—in this Parliament—the Bill brought forward by the noble Baroness, Lady Meacher, is not going anywhere, but we need to have the discussion.

[Baroness Stroud (Con)]

My Lords, I believe it is really important to understand what Amendment 297 does and does not do. It is my understanding that this amendment instructs the Secretary of State—not Parliament—to lay before Parliament a draft Bill that would permit terminally ill, mentally competent adults legally to end their own lives with medical assistance. I listened carefully to my noble friend’s speech on the matter just before Christmas, and I hugely empathise with his own personal journey. But it is important for us to understand what this amendment actually does and does not do.

Health and Care Bill

Baroness Walmsley Excerpts

Lords Hansard - Part 1 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Baroness Barker (LD)]

My Lords, as ever, it is a great pleasure to row in behind my former boss at Age Concern—the inspirational leader of Age Concern for so many years—to return to an issue that Age Concern and its successor body Age UK have for decades raised with successive Governments during successive NHS reorganisations.

It is important, at the outset of this debate, that we understand the true importance of NHS continuing care. On one level, an individual level, it is about enabling people who have long-term conditions to live dignified lives in the community. At a strategic level, in terms of healthcare planning, it is about keeping people out of acute hospitals, which is the most expensive form of care.

The reason why it is right, again, that we seek to put these amendments on to the face of the Bill is that, at an organisational level within the NHS, there has never been a full accountability path for NHS continuing care. That means that, when it comes to individual decision-making on the part of members of staff in relation to individual patients, the decisions fall down. We have not just wide variation between different organisations but wide variation between particular practitioners, who sometimes resort to using non-standard checklists to make decisions, with inconsistent decision-making.

As a result of that, it is hardly surprising, but a real condemnation of a long-term failure of the NHS, that there is a need for an organisation such as Beacon to exist. It is a social enterprise set up by the main charities that gives information to older people and their carers. It should not have to exist. The fact that it does, and that it is a profitable social enterprise business, is testimony to the extent to which older people and their relatives are being badly let down on this.

I hope that in raising this yet again we have shone a light on a part of the NHS system that goes to the heart of what this Bill is supposed to be about. If we do not make this an express responsibility of the NHS in the Bill, yet again it is just not going to happen.

[Baroness Walmsley (LD)]

My Lords, I, too, support the noble Baronesses, Lady Greengross and Lady Finlay. It is right that people should have the cost-effective continuing care to which they have a right. I have my name on the amendment tabled by the noble Lord, Lord Sharkey, and I intend to make some very brief comments about that, although I make the point that the need for us to be brief is the Government’s own fault, because they have not given us enough days in Committee—fewer in fact that in another place.

On the amendment, we refer to the 15th report of the Delegated Powers and Regulatory Reform Committee. I have rarely read such a hard-hitting report by this highly respected committee. One of the worst of the Henry VIII measures that it mentions is allowing zero scrutiny on allowing NHS England, merely by the publication of a document, to impose a financial liability on an ICB. It specifies the circumstances in which an ICB is legally liable to make payments to a provider under arrangements commissioned by another ICB. The Government claim that this is an operational matter. However, if you believe that an ICB should be in total control of deciding how its funds are spent in its area in order to fulfil its duties, you might think that this is an important thing—a legal liability to pay for something that another organisation has decided to commission is quite a serious matter. The DPRRC thinks so and so does the Constitution Committee.

In their response to the DPRRC, as quoted in Appendix 1 of the committee’s 16th report, the Government said that they

“recognise that the Bill contains a significant number of guidance making powers, powers to publish documents and powers of direction.”

They suggest that

“these are appropriate because they reflect the often complex operational details, which are better illustrated by examples and guidance rather than legislation.”

The Government go on to say that there is currently a precedent in the powers of the clinical commissioning groups.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, Amendment 147 concerns the establishment of integrated care partnerships. Although the amendment is specifically about the membership of ICPs, I think that it is appropriate that I comment more generally on ICPs and their role. As I see it, the proposals on integrated care partnerships can be seen as an attempt to try to bind the NHS more closely into a wider system that delivers much wider services contributing to care and well-being.

Particularly at issue is the relationship between the NHS and its partner local authorities. If there is to be a genuine generational shift in thinking that moves the NHS from being a sickness service to one that contributes to the overall well-being of the public, that must be welcomed. Of course, there is a lot to do. At the heart of the issue must be who decides how the money is spent. Who sets the priorities and allocates funding down to place or to service line? If it is just the NHS itself through integrated care boards, that will not work. We have to widen the decision-making to ensure that other voices are heard.

What is missing is some assurance that integrated care partnerships are to have some focus not just on wider well-being but on the need to reduce inequalities and to leverage maximum social value for the area covered. Here, the skeletal nature of the Bill once again gives rise to many more questions than it answers. How are integrated care partnerships to be performance-managed? Will there be an executive? Where will the funding come from? Can the ICP actually deliver any services? Could ICPs be the hub for shared services across the NHS and local authorities?

We have so far heard very little about ICPs; there has been much more emphasis on integrated care boards. Many noble Lords have remarked that the Bill is too focused on the NHS. It is clear that, so far, much energy has been put into the establishment of ICBs and much less into the establishment of integrated care partnerships, which are due to be set up jointly between the NHS and the relevant local authority or authorities. That shows that the building blocks are flawed, because essentially local authorities should have been equal partners in the establishment of integrated care boards. If this was really an integrated Bill about the NHS and adult social care, surely local authorities would be equal partners with the integrated care partnerships on the integrated care boards.

I do not want to go over old ground, but the very fact that NHS England is excluding local authority councillors from the integrated care boards means that it does not want a serious NHS contribution on ICBs from local authorities. I can only take that as the reason for wanting to exclude local authority councillors.

Finally, I will make a general comment about ICPs. The noble Lord, Lord Lansley, raised this earlier. I fail to understand why health and well-being boards are continuing in parallel with the integrated care partnerships. I hope that we might at some stage get an explanation.

That brings me to my amendment. I have concerns about the neglect of primary care and I think that local representative committees have been an important part of the NHS since its foundation. I see no reason why they cannot be assured of some kind of presence on the new integrated care partnerships.

We had a very good debate last week, led by the noble Lord, Lord Crisp, on the role of primary care generally in these arrangements. The Minister said that it was important to consult the relevant primary care local representative committees, and that was why there was a provision under new Section 14Z52 to introduce a duty to consult anyone the ICB and its partner trusts considered appropriate when preparing the forward plan. But underlying my amendment is a concern expressed by the noble Lord, Lord Warner, who on Thursday asked whether the Minister was aware that the influence on key decision-making in the NHS was diminishing for primary care in general and GPs in particular.

In response, the Minister was clearly sympathetic to making sure that primary care was better represented and not dominated by acute trusts. He said that he was open to further discussions in this area and I hope that he will extend those discussions to the membership of ICPs as much as integrated care boards.

The Minister may say that ICP membership is best left to the local level, but I do not think that that is sufficient. We are fully entitled to agree the framework of the new arrangements. Primary care is at risk of being marginalised and that cannot be left to local discretion. I beg to move.

[Baroness Walmsley (LD)]

My Lords, as the noble Lord, Lord Hunt, said, Clause 21 is about representation on the integrated care partnerships, and new Section 116ZA specifies who should be on the committee of the partnership. The Bill currently specifies that one member of the ICP should be appointed by the ICB and one by each of the local authorities. The partnership is also free to appoint others. My Amendment 148 requires that one of these additional members must have responsibility for public health—and in that I include public mental health—and one must demonstrate that he or she can represent local voluntary organisations.

It is tempting in a Bill such as this to assume that all the members of these very influential committees should be from the major health organisations or local authorities in the area. However, there are many small community organisations run by charities or not-for-profit groups that play a very valuable role in providing services to local communities in a very cost-effective manner. Unless they are represented at ICP level, it is quite possible that their survival will be threatened by the new arrangements—and we heard in previous debates that they already do feel threatened. I am sure that the Government do not want that.

Similarly, public health has a major role to play in addressing many of the preventable diseases that contribute to health inequalities—and it looks after the tracing of communicative diseases. We saw the value of that recently when it was a great deal more effective than the national test and trace service at tracing the contacts of Covid-positive patients.

So, the work of both groups is very cost effective. If the ICB and the ICP are to use their resources efficiently and fulfil their duties to level up health inequalities, it is important that both groups are represented on the integrated care partnership. I echo the comments from the noble Lord, Lord Hunt: the Bill is quiet on the structure of and representation on the integrated health partnership. Given the duties that it is being asked to perform, it is perfectly reasonable for us to suggest that some of those important duties are properly covered in representation.

[Lord Davies of Brixton (Lab)]

My Lords, in speaking in support of my Amendment 150, the issue is simple. We have much to learn about ICPs; I associate myself with the remarks of my noble friend Lord Hunt.

My proposal is that the rules determining the membership of ICPs should be consistent with the rules for membership of ICBs. As the Committee will be aware, it has been agreed, with the amendment made in the House of Commons, that ICBs will not and cannot be controlled by the private sector, in any way. I believe that the Health Minister, Edward Argar, made the point of principle clear when speaking during the Commons Report stage. He said that

“ICBs will not and cannot be controlled in any way by the private sector, as NHS-accountable bodies guided by the NHS constitution and with NHS values at their heart.”

Let us just remind ourselves that the requirement added by the Government to Schedule 2 is that an ICB’s constitution “must prohibit” a candidate being appointed to it if the person making the appointment considers, in the Government’s words in the amendment,

“that the appointment could reasonably be regarded as undermining the independence of the health service because of the candidate’s involvement with the private healthcare sector or otherwise.”—[Official Report, Commons, 22/11/21; cols. 119-61.]

We might not agree with the wording adopted by the Government, as previously discussed, but the principle is accepted on all sides.

So, as with ICBs, we should have a parallel provision for ICPs. In this, I am simply following what the Minister said in relation to ICBs: he wanted

“to put the matter even further beyond doubt.”—[Official Report, Commons, 22/11/21; col. 116.]

I emphasise “even further”. The debate here is not really about the precise wording of any amendment; it is about the principle of extending to ICPs the same protection that, as has already been agreed, should be extended to ICBs.

I look forward to the Minister’s reply. It is possible that, given the way in which ICPs are appointed—on the one hand, by ICBs, which are already protected by the Government’s amendment to Schedule 2, and on the other hand, by local authorities—it might be suggested that the issue simply does not arise and that protection is already there. However, if only to put the matter even further beyond doubt, why not accept my amendment?

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[Lord Kamall (Con)]

I do not see it as a fix. The consultation was much wider than just NHS England. In November 2020, NHS England ran a public consultation on the structure of ICSs, including NHS staff, patients and members of the public.

[Baroness Walmsley (LD)]

May I ask the Minister whether councillors were consulted?

[Lord Kamall (Con)]

I do not know for certain, but I am sure their views would have been heard via the Local Government Association.

Health and Care Bill

Baroness Walmsley Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 24th January 2022 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

I am most grateful to the noble Baroness, Lady Barker, for adding some clarification to the point that I was trying to make. I am not for or against any system; all I am saying is that the arrangements have to be in place so that nobody is jeopardised—and indeed, in the event of a patient being transferred from a private facility back into the NHS, that part of the NHS is appropriately recompensed, particularly if the patient comes from a long way away.

[Baroness Walmsley (LD)]

My Lords, the problem to which the noble Lord, Lord Warner, is suggesting a possible solution is the result of long-term underplanning and underfunding of staffing in the NHS, and underfunding also of the capital budgets of hospitals, which sometimes have to choose between mending the roof and buying a piece of equipment that would get patients through the system more effectively and efficiently.

On the comments from my noble friend Lord Rennard on self-management, it is of course not just better care that that produces—it is also very cost effective. I draw noble Lords’ attention to page 3 of the Bill, line 13, where one of the three things to which NHS England has to pay regard about the wider effects of its decisions is

“efficiency and sustainability in relation to the use of resources”.

The resources are much better and more efficiently used if the patient has a decent choice of the equipment and treatment that is most effective for them, and it is often a great deal cheaper.

I also agree with the noble Lord, Lord Lansley, that we need the guidance. We need to see it before Report, and I hope that the Minister will be able to provide that.

[Baroness Wheeler (Lab)]

My Lords, these amendments stress the importance of patient choice in health management, especially of their long-term health conditions, and I welcome and endorse what noble Lords have said on these key issues. The vital importance of patient choice and their right to be able to make informed decisions about their conditions and treatment, and to receive treatment within the 18-week standard waiting time set out in the NHS mandate, was pioneered by Labour and continues to be fully supported by these Benches, as I stressed last week in the group of amendments on the mandate and the NHS constitution.

The noble Lords, Lord Rennard and Lord Lansley, and my noble friend Lord Hunt have spoken about the importance of active self-management, where clinically suitable, for patients with conditions such as diabetes. Access to the latest technologies varies greatly across the country, and the call in Amendment 109 to ensure that the oversight framework for ICSs includes systems for measuring the numbers of diabetes patients accessing diabetes technology would help achieve greater consistency and better use by patients who could benefit from it, particularly in helping to keep them out of hospital or to prevent their conditions deteriorating.

As vice-chair of the Specialised Healthcare Alliance, I know that patients with rare diseases often do not feel sufficiently supported in terms of psychological support, health systems and information, physical and daily living, patient care and support, and sexuality needs. As they are often having to live with their conditions long term, they have considerable potential to be more expert in their conditions than many of the healthcare professionals they come into contact with, many of whom may not be familiar with their disease or condition. With appropriate support, therefore, such patients can manage their less intensive care needs themselves, delivering better health outcomes and reducing demands on the NHS. Efforts to promote the self-care of people with health conditions, as set out in Amendment 226, really have the potential to improve the care of people with rare diseases.

Amendment 72—moved with his usual expertise and clarity by the noble Lord, Lord Warner—reinforces the importance of patient choice and is highly relevant because of the growing and record waiting list that we spoke about last week during the debate on the mandate and constitution. Of course, Labour in the past has used the private sector as part of a comprehensive plan to reduce waiting times, as the noble Lord, Lord Warner, pointed out. He will also know that in reality the role played by private providers, and the costs involved in getting the waiting lists down to the 2010 levels before this Government took office, particularly for elective surgery such as hip and knee replacements, were modest compared with the huge investment in the NHS itself and Labour’s genuine commitment to public service solutions, increased investment, the use of targets and improvements in pathways and other efficiencies. As a result, the private sector relied more heavily on getting business from the NHS on NHS terms, not actually treating private fee-paying patients.

In sharp contrast, we have the complete absence of such a comprehensive or coherent plan from the Government to reduce the now-record waiting lists, as the noble Lord, Lord Warner, set out in moving his amendment. The Secretary of State has acknowledged that waiting lists could grow to 13 million, with the National Audit Office now predicting that the situation could get even worse than it currently is by March 2025. The Secretary of State promised in November to publish how the Government plan to meet the workforce requirements needed to address staff shortages—to which noble Lords have also referred to during the debate—and the record waiting lists, but we still have not had any sight of this.

So far, all we have had instead are last week’s press reports of the huge sums of money the Government want to hand over to the private sector, including disturbing reports of NHS England’s unease at the Secretary of State’s instructions to hand over £270 million to the private sector with no guarantees on numbers of patients to be treated or, indeed, whether any NHS patients will even get treatment. Our shadow Secretary of State, Wes Streeting, has made it clear that an incoming Labour Government would fully expect again to use the private sector to help bring down waiting times for treatment, but as part of a comprehensive plan to build and the support the NHS so that people do not have to go private because waiting lists are at record levels and they are suffering and in pain. People who cannot afford it always have to wait and remain in pain. That is not social justice and it is just not right.

We support the principle in this amendment. If long waits can be prevented, they should be, although there is a serious question about whether the private sector would in any event actually have the capacity to meet the demand that could be generated by the three-month stipulation for treatment in the amendment. We also agree that the Clause 68 regulations need to be published as soon as possible and I look forward to the Minister telling us more about that. By contrast, a far better solution, as Labour has always advocated, would be to invest in the NHS, help the NHS become more effective and efficient and build capacity so there would be far less need for private sector care.

Finally, the amendment’s requirement to ensure that private sector providers have a duty to provide NHS England with annual information on the services funded by the NHS and on patient choice would be a welcome development, for the reasons that the noble Lord, Lord Warner, set out. The more that is known about the use of private providers, the better and more informed the discussion about their role will become. I look forward to the Minister’ response.

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Moved by

[Baroness Walmsley]

83: Clause 20, page 17, line 25, at end insert “and to ensure the availability of sufficient well-trained staff to provide safe staffing levels.”
Member’s explanatory statement
This amendment draws the attention of the integrated care board to the need to ensure sufficient well-trained staff to comply with safe staffing levels.

[Baroness Walmsley (LD)]

My Lords, in moving Amendment 83 in my name, I want to speak to Amendment 86, also in my name, and to support Amendments 146, 170 and 171.

Everybody taking part in these debates, including the Ministers, would acknowledge the central importance of the staff of the NHS and social care, at every level, and their training, well-being and retention. However, it was clear from the evidence on the workforce to the committee and in debates in the House in another place that there is broad concern that planning for the provision of sufficient of the right staff in all areas has not been good enough. Given how long it takes to train a doctor, an allied health professional or a nurse, excellent forward planning is essential. Proposals were made in another place to improve that in the future but, unfortunately, the Government would accept only a mandated review every five years. This group of amendments is this House’s opportunity to try again, and I hope the Minister will be able to help us.

These amendments show that, in the opinion of noble Lords, the planning of health, public health and care staff must be based on an accurate, independently verified understanding of both the current situation and, as well as can be predicted, future need. Because the political responsibility lies with the Secretary of State, this information collection and planning must exist at the very top, as well as at NHS England and the ICS commissioning level. Clause 35 refers only to the workforce needs of health services, but Amendment 170 lays down detail on what the Secretary of State must do to fulfil this responsibility, not just for health but for public health and social care, since they are so interlinked. We look forward to the White Paper and legislation on social care and hope that workforce issues will be well covered in them, but we need to address it now, in this Bill, even though it would have been better to hear the Government’s proposals on social care first. Amendment 146 says what must be done at ICS level. Crucially, both amendments require appropriate consultation. But there is something I would like to add, and that is where my Amendments 83 and 86 come in.

Every hospital trust and primary care setting has done the work to identify and agree the safe staffing levels of each type and seniority of staff in each setting. This is based on an understanding of the local context and of the knowledge and skills needed for patient safety to deliver each treatment, and an assessment of how many patients can safely be looked after by each member of staff. This varies enormously from setting to setting—from a whole team of staff to each patient in operating theatres, to one-to-one in ICUs and premature baby units, and to several patients to one member of staff in less acute areas.

During the pandemic, we have seen these levels necessarily abandoned, with, for example, one ICU nurse being asked to care for two or even three patients at the peak. This has been an unusual crisis situation and services have had to be flexible, moving staff from one department to another, always, I hope, under the supervision of a staff member with the correct speciality. Hospitals have helped each other and ambulances have been diverted when no bed could be found for patients coming into A&E. That has been the advantage of having a National Health Service.

It has been very difficult for staff, and many have quit their jobs. We started the pandemic with tens of thousands of doctor and nurse vacancies, and the BMA has calculated that we currently have a shortfall of 50,000 full-time equivalent doctors—more than the number of unfilled posts. Our doctor-patient ratio is 25 years behind that of similar OECD countries. In the UK, before the pandemic, there was already a shortage of around 50,000 nurses, and still the healthcare system is nowhere near bridging that gap. In December 2020, a report by the Health Foundation, Building the NHS Nursing Workforce in England, said that the Government will need to exceed their target of 50,000 new nurses in England by 2024-25 if they want the NHS to fully recover from the coronavirus pandemic.

In January 2021, a survey by Nursing Times indicated that 80% of nurses feel that patient safety is being compromised due to this severe staff shortage, which is why my amendments focus on safe staffing levels. While there has been a good increase in the number of nursing students starting courses during 2020, this will not alleviate the issue of a lack of qualified nurses now or in the medium term. There are particular shortages among mental health and cancer support nurses. Cancer Research has also told us that one in 10 cancer diagnostic posts in England is vacant, which threatens the Government’s cancer target. There are also considerable shortages in other allied professions.

We have also seen a reduction in the number of in-patient beds in the last 10 years and bed occupancy rates well in excess of the recommended percentage. Even before the pandemic, some hospitals had no available beds at all during the winter period, leading to nearly every winter period being labelled a crisis. All this is because of the perennial failure to train enough staff.

Despite the increased use of technology, health and care continue to be people businesses, but there has not been enough effective planning to provide the workforce needed, not just for normal services but to provide the resilience needed for the winter and for future pandemics. This has partly been due to “leaky bucket” syndrome—the failure to retain staff because of the pressure and, in some cases, pay or pension issues. That must change. Health Education England is now to be incorporated into NHS England, and the Bill and the forthcoming social care legislation are opportunities to start again. We have one and a half million care workers, with high turnover. In order to improve retention, good training and a career path are needed.

I turn, however, to the detail of my amendments. Included in the duties of the new ICBs is, as set out in Clause 20, in new Section 14Z41, a duty to promote education and training. My Amendment 83 adds to that duty that it should train enough of the right staff to reach safe staffing levels in all areas. My Amendment 86 adds to new Section 14Z42, which covers the duty to promote integration, a duty to improve the ability of NHS and care staff to carry out their duties within safe staffing levels.

The latter amendment recognises the risk to staff themselves as well as patients when they are forced to work with fewer than the prescribed safe number of colleagues, or to extend their shift by many hours because there is nobody to take over. It is a risk to their physical and mental health and it certainly does not help the ability of student nurses and doctors to learn from their senior colleagues when they do not have enough time to breathe. It also causes burnout, leading to significant numbers of doctors and nurses considering leaving the profession or reducing their hours. Some 32% of respondents to the BMA’s April 2021 Covid-19 tracker survey said that they were now more likely to take early retirement, while half reported being more likely to reduce their hours.

I believe that safe staffing levels are part of the duty of care that employers owe to their employees in the health service. However, the Nuffield Trust, Health Foundation and King’s Fund have estimated that, by 2030, the gap between supply of and demand for staff employed by NHS providers in England could reach almost 350,000 full-time equivalent posts if nothing is done. Worryingly, that was based on pre-pandemic calculations. Overcoming unsafe staffing levels is an essential measure to ensure patient safety and to boost the well-being, morale and productivity of staff and, therefore, their retention. The Bill is an opportunity for the Government to take sustainable action to alleviate issues relating to workforce supply and demand in England.

The duties proposed in Amendments 146, 170 and 171 would be welcome, and I support them, but they are not enough. I think that safe staffing should be specifically mentioned among the duties of the ICB, and that is where my amendments would put it. I beg to move.

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

My Lords, we have two noble Baronesses taking part remotely. I first call the noble Baroness, Lady Brinton.

Health and Care Bill

Baroness Walmsley Excerpts

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

[Lord Kamall (Con)]

We recognise the strength of feeling in this House and in the other place. This will clearly require more work and more discussions. In that spirit, I ask the noble Baroness to withdraw her amendment.

[Baroness Walmsley (LD)]

I thank the Minister for his comprehensive response to this debate, which the noble Baroness, Lady Harding, suggested was probably the most important that we have had and will have in Committee on the Bill. Staff are absolutely central to the delivery of health services.

Unfortunately, in this debate we have heard about a great deal of failure. We have failed the staff because we have not provided them with enough colleagues for them to be able to do their work without feeling stressed, being worried about risk to patients, feeling burnout or wanting to reduce their hours or retire early. We have failed to provide enough GPs; we were promised 5,000 or 6,000 extra, but, as the noble Lord, Lord Patel, said, we have fewer than we had in 2015. We rely on 30% of doctors from abroad—an enormous number. Although I absolutely accept what the noble Lord says about the appropriateness of temporary training placements, opportunities and remittances going back to the countries from doctors and nurses coming here, it sounds a little excessive to me. Perhaps we need to do better in planning our own workforce.

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[Baroness Walmsley (LD)]

I have my name to Amendment 93 and Clause 70 stand part. As the noble Lord, Lord Warner, just told us, Clause 70 is a bit of a mess, and having listened to the explanation of the noble Lord, Lord Lansley, of why it is a bit of a mess, I do not find much need to say much more. However, on the issue of compulsory competitive tendering, I understood that the Bill will reduce its importance. I wonder how those things link together and whether the Minister can explain it to me.

On the amendment of the noble Lord, Lord Hunt, about diversity of provision, it is usual that those with the biggest voices shout the loudest and, in the health sector, it is often also those with the biggest budgets, such as the acute hospitals. We have this very valuable not-for-profit sector that has a small voice and a small budget—at least individually, although it adds up to quite a lot—and a great deal of it comes from the NHS.

As has been said, many of them are spin-offs, comprising former NHS staff who prefer to work in that context. There are an awful lot of them—about 15,000—and they feel particularly threatened by the Bill because, despite the fact that they are specifically mentioned in the ICS design framework as a vital cornerstone of a progressive health and care system, they are not referred to in the Bill and there appears to be little, if any, recognition of the potential impact of the new structures of provider collaboratives and place-based partnerships on their funding and, crucially, their involvement in decision-making. As others have said, that missing piece has caused a lot of suspicion and concern in the sector, and we must not lose these important organisations, because they really understand their client base: they are local, they are flexible, they are fleet of foot, they innovate and they are vital in providing services, in particular for those with complex needs. We must make sure that their voice is heard.

[Baroness Thornton (Lab)]

My Lords, this group is in two parts. The first part consists of the amendments tabled by my noble friend Lord Hunt. I need to declare an interest as a patron and the founding chair of Social Enterprise UK, and also as an associate of E3M, for public sector social enterprise leaders, particularly in the healthcare sector, so I have been living with this. Indeed, I must declare an interest as the Minister who helped take through the right to request in the NHS for our staff. I am very committed to these amendments, and to the need for social enterprises to continue to innovate and deliver in our health and social care system, which they do at the moment. There is a report due out very soon from the group chaired by the noble Earl, Lord Devon, on Covid and social enterprise; the way that social enterprises have delivered during Covid is stunning.

I turn to the amendments in the second part of this group, many of which have my name on them. I think that the noble Lord, Lord Lansley, and I find ourselves in broadly the same place: it is a mess. Our first thought was, “Why is this clause here?”, because it does both the things that my former noble friend Lord Warner—I still regard him as a friend—said. This clause does not tell us what is going to happen but it makes us extremely suspicious about what might happen. My amendments—and also, I think, the amendments of the noble Lord, Lord Sharkey—are about that suspicion. It is quite right that the regulatory committee also said that we needed to pay attention to this, because it gives the Secretary of State very wide powers and it does not tell us what the Secretary of State will do with them.

I have quite a long speaking note, but I do not intend to go into the detail now. I simply say to the Minister that if, by the next stage of the Bill, we have not resolved the issues behind this clause, the Government may find themselves struggling to get it, as it stands, through your Lordships’ House.