Modern Slavery Bill
Debate between Baroness Williams of Crosby and Lord Warner(9 years, 8 months ago)
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Baroness Williams of Crosby (LD)
My Lords, we have had some remarkable contributions to this debate. I certainly do not wish to delay the outcome but I would like to ask two or three questions before we make a decision on the Motion of the noble Lord, Lord Hylton. Before I do so, I pay tribute to the 30 years of his life that the noble Lord has given to the effort to get social justice for this particularly badly treated group in society. I have absolutely no qualification in saying that. Of course, like everyone else, I thank the Minister for his endless persistence in trying to get answers that will satisfy the House.
My questions are very simple. The first is about access. Noble Lords have referred to the extreme risks that domestic workers in difficult situations may face in attempting to access the system we have now begun to establish, including the NRM. We need to make sure that they do have access. I ask the Minister whether access to, for example, the churches or non-governmental organisations can then be passed on by them on behalf of the person who is objecting and concerned. Is that a possibility? I ask this because the trust that overseas domestic workers—for example, Filipinos—have in a church or an NGO might be much greater, sadly, than the trust they might place in the authorities. I am sorry to have to say that, but it has been my experience in talking in particular to Filipino migrants, who are among the most helpful and forthcoming that we have in this country. They have deep concerns—from their own experience back home as much as anything—about whether the authorities will be fair in the way that they treat their complaint.
My second question concerns the issue raised by the noble Lord, Lord Hylton, as well as by the noble Lord, Lord Deben, and others, including my noble friend Lady Hamwee. There is a complete lack of any form of legal aid for this pathetically waged group in society. I am not sure whether they would get any money at all to pursue these issues, which is why it is of such great concern to me that access to employment tribunals and the civil courts is not made available in some form that would enable these people to bring their cases forward. There may be no answer to that, but we cannot pretend to ourselves that passing laws that cannot be implemented because the people they affect do not have the money to do so is a satisfactory outcome.
I have two more questions. The third is about the inquiry. The Minister said that the inquiry would be in July, but my impression is that that is not when it will be concluded, but when it will be started. As we know, an inquiry can be a very long process indeed, particularly when it comes—as this one will—between the end of a Parliament and a general election that will be followed by the creation of an effective Government. Is the Minister telling us that the inquiry will start in July but not giving any indication of when it is likely to be terminated?
Secondly, will the inquiry look not only at the law but at the implementation of the law? It was mentioned in the Commons that there had been 63 cases where exploitation or other forms of slavery were clearly identified. There has been just one prosecution. That reminds me a little of the issues around the banks. It is no good having a law that is not implemented. Perhaps the Minister will be kind enough to say whether the inquiry will be able to look into the issue of implementation as well as at the law itself. This seems to me to be absolutely crucial.
My final point concerns the issue of serious crime associated with, for example, cases of exploitation. I will give an example from my own experience, because I used to lecture on this subject when I was at the Kennedy School in Harvard. One of the most dreadful pieces of evidence I came across was that one of the single largest exports to the Philippines from the Trucial States of Saudi Arabia was that of coffins for those who had been domestic workers. I do not point the finger now; maybe things have changed. However, they were very serious in the past.
My last question is this. If someone who makes a complaint refers to a capital or substantial crime such as rape or assault, could we take that into account in the way that we deal with the issues that are now before us? Will the Minister say how that is dealt with at present, because my impression is that sometimes it is not dealt with at all?
Lord Warner (Lab)
My Lords, a number of noble Lords who served on the Joint Select Committee with me have spoken against the Motion of the noble Lord, Lord Hylton. I will say a couple of words in support of the Motion and of the remarks made by the noble Lord, Lord Alton. First, it is worth remembering that we have known for some time about the problems arising from the changes made in 2012 to the Immigration Rules. The Government have come very late to the party on having a review into this issue. I suggest to noble Lords that they may have—finally—come late to the party only because this House, through its amendments, has put a good deal of pressure upon them to do so.
Secondly, I will draw attention to the key difference between the Motion moved by the noble Lord, Lord Hylton, and that of the Government. Essentially, the Motion moved by the noble Lord, Lord Hylton, whatever its shortcomings, gives a degree of protection as soon as the person comes into the country. The government Motion does not do that. It would seem to be a failure on our part as a scrutinising House if we give up this opportunity to put something into the Bill which will make it better and provide more protection while the review goes on. If the noble Lord, Lord Hylton, chooses to divide the House, I can see no reason why we should not vote in favour of his Motion. It does not in any way stop the Government getting this legislation through.
Health and Social Care Bill
Debate between Baroness Williams of Crosby and Lord Warner(12 years, 8 months ago)
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Lord Warner
I speak to Amendment 164 in my name, which is in this group. It returns to the issue I raised in Committee: the need for Monitor to produce an early report on the barriers to entry for new providers of services to the NHS. Although he had sympathy with what I was trying to do, the Minister did not like my previous amendment, which would have required Monitor to produce a report within 12 months of Royal Assent on barriers to NHS entry to new providers. I think that he accepts that there are barriers to entry for new providers which we need to tackle. In this amendment, I have added the words “identifying and” to the requirement in Clause 61(3) for Monitor to prevent anti-competitive behaviour.
I recognise that many people in this House and in the Commons do not share my view on the virtues of competition when used selectively for patient benefit. I will not go over all the ground again, but I think there is good evidence—the noble Earl cited some of it in an earlier discussion—that that has proved beneficial to patients. Moreover, the UK is almost unique in large advanced healthcare systems in enshrining monopoly public providers of hospital services, with little challenge to their efficiency or effectiveness. These NHS monopolies have been very good at erecting barriers to entry for newcomers and ensuring—if I may put it as unkindly as this—a quiet life for monopoly incumbents.
We should be concerned about this. Only last week there were some startling statistics in the Health Service Journal about non-foundation trusts’ poor performance in achieving savings requirements in line with the Government’s targets. I have no problems with the Government setting those targets for non-foundation trusts to improve their efficiency. None the less, however we frame the competition provisions in this legislation, we have to face the fact that it is extremely difficult for new entrants to dislodge incumbents in many of these services where the performance is poor. That is why in my view Monitor should, after the Bill receives Royal Assent, quickly identify clearly existing barriers to entry so that they can be dismantled in the public interest. The Co-operation and Competition Panel has already identified some of the barriers for new entrants to the NHS market—and, again, I make no apology for talking about an NHS market. It is important that we see healthcare, in part, as a market where new providers can provide better services and different types of services more effectively.
I hope that the Government will look sympathetically at this modest amendment to try to get Monitor on the case of identifying barriers to entry.
Baroness Williams of Crosby
My Lords, I have two amendments in this group, Amendments 163C and 166B, which also stand in the name of my noble friend Lord Marks. However, before I address those relatively short amendments, I should like to say a word or two about the broader issues that we have been discussing. I begin by perhaps giving a little comfort to the noble Baroness, Lady Thornton, by saying that my understanding is that we will be discussing the whole issue of the relationship of Monitor to foundation trusts later in the proceedings. Our amendment on this matter, which is not far removed from hers, addresses an amendment to the government amendment on this issue, which itself comprises a considerable advance in the position that we have had up till now. I shall not try to get into that debate because it is complicated and I think that it would be better conducted a little later in the light of the various proposals.
I want to say a word about competition, and it is appropriate to do so given that the noble Lord, Lord Warner, has just been speaking. He has always spoken with some courage on this issue, which I recognise is not exactly popular with his party. However, I say quite directly that I feel very strongly that we have allowed the issue of competition to become quite different from the reality that we have encountered in the Bill, in this House and from the argument that is going on outside. That is because we have tried to treat competition as an absolute—either we have a competitive market for the National Health Service or we have no competition at all—and we all know that to be false.
We all know that there is a role for competition but the argument is about how limited it should be, what it should be addressed to and whether it is then balanced by, for example, equally strong duties in relation to co-operation, integration and the bringing together of services. I think we all recognise that competition can make a significant contribution in innovation and bringing in new ideas. For example, we have only to look at the recent developments in the treatment of stroke victims and victims of heart conditions to see that there has often been an innovatory role for the private sector. However, many of us also believe, as I certainly do, that the National Health Service should continue to be primarily a public service, that it should be available free of charge and that it should be accessible to all. Therefore, competition must exist but essentially it must be balanced by other considerations which, in the case of what we have been discussing recently, are clearly of great significance—particularly the role of the integration of services and the role of co-operation, which in terms of our main priorities, including the care of the elderly, are absolutely central and crucial.
Lord Warner
My Lords, I shall speak also to Amendment 214G which stands in my name. The amendments arise from our debate in Committee about what we then described as a “pre-failure regime”. The argument that I was trying to sustain, with helpful support from different parts of the Committee, was that it would be better for Monitor to get engaged when it could see failure coming at it down the track rather than waiting for the train crash to occur and use the health special administration procedures that were provided for in the Bill.
My amendment then was probably technically defective but it served the purpose of raising the issue. The Minister was not so off-putting that I thought that I would not have another go at this, so, with the help of the noble Lord, Lord Patel, and the noble Baroness, Lady Williams of Crosby, I put down Amendment 217, which is in this group. Following that, the Minister engaged with me in some rather helpful and fruitful discussions and the results of those discussions were Amendments 196ZA and 214G. In my enthusiasm for tabling these amendments I completely forgot to remove Amendment 217, which is why it is still on the Marshalled List. I assure the Minister that I have no intention whatever of moving Amendment 217.
The nub of what is in Amendment 196ZA is that it provides for Monitor when it can see that a licence holder’s conditions are likely to be imperilled by a current configuration of health services in the wider health economy—not just within that licence holder’s own individual trust. It can draw the attention of commissioners—the national Commissioning Board and clinical commissioning groups—to those risks which it can foresee and it has to give its reasons for doing so. But rightly in my view and, I believe, that of the Government, it puts the onus on the commissioners to do something about it. It does not require a top-down intervention, but it flags up very seriously to the commissioners that a problem is looming and they need to do something about it. Just to give more force to that, each financial year Monitor will publish a list of the notifications that it has issued in that financial year, putting commissioners on notice that they have a problem, that they need to do something about the reconfiguration of services and that they need to take some action to ensure that there are sustainable NHS services in that part of the country.
I pay tribute to the civil servants at the Department of Health because they have done something rather ingenious that I never even thought of in Amendment 214G, which is to take an application by a service provider to Monitor to secure some adjustment in the price paid for particular services to make Monitor think about whether there is anything more significant behind that application and whether there is a risk to the sustainability of services in a particular area. If it does consider that that is necessary, it can again notify the commissioners of its concerns about the need to consider service reconfiguration in that area.
These two amendments, which have been given a lot of technical help by the Department of Health and a lot of support from the Minister, meet my concerns and, having talked briefly to the noble Baroness, Lady Williams of Crosby, I believe that they also meet hers. There is an adequate set of arrangements to put commissioners on notice that failure may be looming so that they can take action under their responsibilities. Just to make sure that they do, each year there will be a list of the notifications that Monitor has issued so that it is on the public record that Monitor has spotted that there is something of concern and has required commissioners to take action.
That meets my concerns and I think that it meets the concerns of the noble Baroness, Lady Williams of Crosby and the noble Lord, Lord Patel. In order to table the amendment in time for today’s debate, I did not have time to collect the signatures of my partners in crime on Amendment 217, but I have every reason to believe that they would be satisfied with the Government’s response to our concerns.
With regard to subsection (5) of Amendment 217, which I have mentioned to the Minister, I think it would be a good idea if the Government were to consider assembling a group with expertise to help local people to reconfigure their services. It is often difficult for people at the local level to think through how they might reconfigure services to make them sustainable. I do not suggest a top-down approach but some sort of panel that could help local people and facilitate the reshaping and redesign of services. That would be a helpful way of proceeding. It might help a lot of people to get through the difficult task of reshaping services when the need arises. Without further ado, I beg to move.
Baroness Williams of Crosby
My Lords, my intervention will be extremely short. I am delighted that the noble Lords, Lord Warner and Lord Patel, put down this proposal for what one might describe as precautionary failure. We were very concerned that there might be no regime that would enable services to continue because one had seen in advance the possibility of a particular place getting into a great deal of trouble. This is a very satisfactory proposal to put before the Government to deal with the continuation of health services for an area, even when those services get into difficulties.
I also strongly commend the proposal of the noble Lord, Lord Warner, about the small group of local people. That has one great advantage: that small group will then become part of what one might describe as a lobby for a sensible outcome, for a proper reconfiguration or change in the structure of services. That is very important. Otherwise, you almost invariably get very powerful local opposition to any substantial change and no natural constituency of people who support it. This is an imaginative idea. I am pleased to be associated with the amendment of the noble Lords, Lord Warner and Lord Patel.
Health and Social Care Bill
Debate between Baroness Williams of Crosby and Lord Warner(12 years, 11 months ago)
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Lord Warner
My Lords, I shall speak also to Amendments 335 and 336, which I degrouped from the previous grouping.
Amendments 332 and 335 provide an opportunity to press the Government again on securing more precision in this Bill about what we mean by integration. The integration that means most to patients and service users and their carers is the integration of service delivery. That is what Amendment 332 tries to bring out, by replacing reference to people working “in an integrated manner” with wording that ensures that they work in,
“a manner that integrates the delivery of services to individuals”.
Amendment 335 has another go at trying to persuade the Government to include in this Bill a definition of integration. I find it very odd that the Government go to all the trouble in Clause 192—as elsewhere in the Bill—of providing definitions of health services, health-related services and social care services, but will nowhere provide a definition of integration even though the term is liberally sprinkled throughout the Bill. I congratulate them on that liberal sprinkling, and I think that the intentions are very good. However, using the term “integration” in a variety of ways, without being clear what the important meaning of it is to patients, promises a lot but risks ensuring that there is a likelihood of delivering very little change that actually benefits individuals or helps break down the barriers between health and social care. My particular concern is that some people will take away from this Bill that they have met the needs of integration by organisational integration rather than focusing on the thing which matters to individuals, which is the integration of service delivery.
I hope that the Minister will think further about inserting a definition of integration in the Bill, to give it more precision. I would be happy, as I am sure other noble Lords across the Benches would be, to help him to try to secure a definition. I do not claim that getting that definition right is easy, but I think that while the Bill is in this House it is worth the trouble of trying to get a more precise definition of the integration that would really benefit individuals in the area of service delivery.
Amendment 336 also seeks to push integration, but in a very specific way. It proposes that a local authority with a health and well-being board may approach the national Commissioning Board about assuming,
“some or all of the functions (and associated funding) of a clinical commissioning group where such a group agrees that this is in the best interests of patients”,
particularly if it improves integration. The Government are very keen to argue that people at local level should be able to shape their local arrangements for commissioning and providing services. I have a great deal of sympathy with that approach. This amendment would enable clinical commissioning groups and health and well-being boards to come together to form a single body for commissioning services in accordance with a joint service needs assessment. Given the variation in the size of clinical commissioning groups, there may be some large ones that would like to share staff and reduce overheads by amalgamating their activities in the way that this amendment permits. In addition, some of us believe that it will not be possible to sustain 250 or more clinical commissioning groups, which might then raise the issue of merging those groups and possibly going further and merging the merged with a health and well-being board as well.
There is no compulsion or pressure in this amendment. It merely enables clinical commissioning groups and health and well-being boards to come together, integrate their activities, share priorities and work closely together in the way that public money is spent, particularly in relation to integrating services across the NHS and local government boundaries. I hope that, in the spirit of local decision-making, a permissive but non-mandatory power of this kind could be inserted into the Bill.
I would very much like to hear the Minister’s views on this probing amendment and whether he sees merit in it. I shall be returning to the issue of integration, and a definition of it, on Report. I think there is support for this across many parts of the House. I beg to move.
Baroness Williams of Crosby
My Lords, we on these Benches have strongly supported the many references to integration that have been made in Committee, and it is obviously central to the whole of the attempt to deal with the major problems that confront us all over the next few years. However, I completely agree with the noble Lord, Lord Warner, that it is not very clear what this is, other than a nice word. The more flesh that we can put on it, the better all round, and the clearer the position of local authorities will be.
Many local authorities have of course already delivered, on behalf of the primary care trusts, the kind of approach that the noble Lord, Lord Warner, has been advocating, but the situation has to go a great deal further. We are particularly attracted by his Amendment 336 because it is very clear and precise in what it suggests about the relationship between CCGs, particularly those who wish to devolve some of their responsibilities, or in some cases are unable to deliver on those responsibilities.
I would like to say, from these Benches, on behalf of my noble friend Lady Jolly and myself, is that it is crucial that at an early stage health and well-being boards are able to mount mechanisms for early decision-making. If a CCG is unable to meet part of its responsibilities—and that may happen at relatively short notice—it is critical that the health and well-being boards have structures within their own management which would enable them to deal with the issues rapidly. It would be no good at all if there is a long interregnum when services to patients are put at risk.
I would advocate, in addition to what the noble Lord, Lord Warner, has said, that the new health and well-being boards should make an early approach to seeing how they would deal with what might be, if not an emergency, at least the beginnings of an emergency in the particular aspect of what the CCGs are proposing to deliver.
Health and Social Care Bill
Debate between Baroness Williams of Crosby and Lord Warner(12 years, 11 months ago)
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Baroness Williams of Crosby
Perhaps I may respond briefly to the points raised by the noble Lord, Lord Mawhinney. I apologise if I spoke too briefly, but I am conscious that there are an awful lot of amendments to get through and I do not want to steal the time of other people on other crucial amendments.
On the group of four amendments that the noble Lord is in accord with me about, as he will be well aware, consideration has been given to the material put before us by my noble friend Earl Howe, the Minister of State, about an attempt to bring together discussion within the House and among lawyers about the issue which the noble Lord, Lord Mawhinney, rightly identifies as being central to the Bill: the responsibility and powers of the Secretary of State. Because we are in Committee and the Committee will, we hope, be ending in a few days’ time, the only opportunity we have to table amendments that would bear on the issue of the Secretary of State’s powers is on the Bill as it stands—prior to any changes that may be made. It is in the light of that that we tabled this group of amendments to highlight the areas where, in our view, the responsibility of the Secretary of State is central. That is true of this group of amendments, and I am delighted that the noble Lord, Lord Mawhinney, takes the view that they should be seriously considered by the Minister.
The point of Amendment 296 is to recognise that, in many cases, CCGs have to take account of the services given by foundation trusts—not least in respect of, for example, pathways and networks for people with chronic conditions. We thought, therefore, that it was important that there be not just sharing of information between the two but, rather, a process of interactive education, where the foundation trusts become increasingly aware of the responsibility that CCGs bear, particularly for those clinical conditions that lie beyond the capacity of a single CCG. That is why we suggested that a governor should be named by the national board to set up that communication—which, as the noble Lord, Lord Mawhinney, knows far better than I do, because he is an expert on the subject, sometimes, sadly, does not exist.
Lord Warner
My Lords, I will just raise a couple of points about Amendments 300 and 301, tabled by the noble Baroness, Lady Williams, in relation to the Secretary of State's role in mergers. The other day, I tried to express a little about my concerns, which I continue to have, about the speed at which the Government are expecting some of these trusts to become foundation trusts. One thing that I am beginning to see happening in the NHS—this will lead to some questions to the Minister for clarification—is the rush to merge. Mergers can take a number of forms, and a good example is in north-east London, where there is a proposal to merge Barts and The London with Whipps Cross and Newham. These three hospitals have failed to become foundation trusts but it seems to be thought that by some osmotic process, which I am not altogether clear about, such a merger will improve their prospects of doing so.
Discussions are also going on in other parts of the country about merging non-foundation trusts with successful foundation trusts. The evidence here is that there are some very high-risk ideas floating around regarding trusts which so far have not been good enough to become foundation trusts, and causing risks to stable foundation trusts by merging them with trusts which are in some degree of difficulty. However, I can see that the NHS might feel under pressure to try to get people to secure foundation trust status by the deadline that the Government seem to have in mind.
As I said the other day, trusts have had eight years to get themselves ready to become foundation trusts and they have failed to achieve it so far. You have to be one of life’s great optimists to believe that somehow, because the Secretary of State has set a deadline for 2016, it is going to happen. There is a serious question about whether the necessary checks and balances are in the system to stop what I would call silly and fruitless behaviour. Is the Minister confident that the Co-operation and Competition Panel will be a sufficient bulwark to stop what I am calling silly behaviour in relation to mergers, or do we really need the kind of strengthening that I think is implicit, if not explicit, in Amendments 300 and 301? This is a serious issue. We are beginning to see behaviour which may not be in the public interest as people try to get foundation trust status without the necessary skills and competences, or indeed the necessary financial situation in their locality, to achieve this.
Health and Social Care Bill
Debate between Baroness Williams of Crosby and Lord Warner(12 years, 11 months ago)
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Baroness Williams of Crosby
My Lords, I strongly support the two very powerful and convincing speeches by the noble Baroness, Lady Greengross, and the noble Lord, Lord Low.
I add only a couple of points. First, it is extremely important for the integration of social care from local authorities with health service healthcare to have a similar regime of rules and standings applying to both. All of us in this House have said repeatedly how much we believe in the integration of these two attempts at providing proper care for older people, chronically ill people and disabled people. It is therefore important that we set a standard which is common between the two. That is the first reason why we should all strongly support the amendment that is before us.
The second reason, from my point of view, is that I very much like the phrases used in the amendment, which state in effect that this kind of service is a public service. It is, in a way, ennobled by the fact that it is a service to the public generally, regardless of whether it is provided by the voluntary, independent or NHS sector. That is also very important.
The third point I briefly make is that it has implications which we have to face up to. There is no time to discuss this tonight. But if we actually want there to be a huge improvement in the relationship between the staff of health service and local authority care organisations, whether voluntary, private or NHS, and the elderly and vulnerable people whom we are talking about—and we do want that—then, as this quite clearly implies, the staff themselves must be treated well. It is no good having profoundly exploited, overused, overcriticised staff and expecting them to live up to the great principles of the Human Rights Act. To my mind the importance of this amendment is not just that it passes. It has clear implications for the training, education, support and attitude towards NHS staff, who too often are heavily criticised for what is a difficult yet often extraordinarily well conducted job. In that spirit I strongly support the amendment of the noble Baroness, Lady Greengross, and the noble Lord, Lord Low.
Lord Warner
My Lords, I also support the amendment of the noble Baroness, Lady Greengross. I do so from the perspective of someone who as a special adviser was involved in the framing of the Human Rights Act in 1998. At that time, much of the thinking in the devising of that Act was on the basis that publicly funded services were pretty much synonymous with public delivery of those services. Much of the language around public functions and public authorities was based on that assumption. In fact, that was already out of date at that particular time. Since then, we have never really put this point beyond doubt in legislation. It is timely to do so now, when so many of the services in people’s own homes are contracted out by public bodies to voluntary and private providers. It is a lacuna in the arrangements, despite some of the assurances given by Governments of both persuasions since the Human Rights Act 1998.
Health and Social Care Bill
Debate between Baroness Williams of Crosby and Lord Warner(12 years, 11 months ago)
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Lord Warner
I thought there was going to be an intervention from my left. I was not going to intervene in the debate on this group. I am sorry if I missed something by missing the debate on the first group of amendments. I have some concerns about the dual role of Monitor as the arbiter of foundation trust status and the raft of new duties that it will undertake as an economic regulator. Let me make it clear that I have no problem whatever with the role of Monitor as the economic regulator and the functions that go with that. However, I want to share with the Minister and the House some of the previous Government’s thinking on whether Monitor could combine being the economic regulator and the arbiter on the passage to foundation trust status. The situation, if anything, is more difficult now. We finally concluded that we could not make Monitor the economic regulator until we were much, much further along the path of completing the job of trusts becoming foundation trusts because there were potential conflicts of interests, which we will come to later.
I raise this issue at this point because there are accountability issues here as well. I can see the very strong arguments—and I have every sympathy with the Government on this—for setting up an economic regulator and the Secretary of State not dipping in and out of those functions. If you are going to have a regulator, let it be independent and leave it to get on with the job. I am very comfortable with that. My concern is that we are already going to be loading a very large number of functions on to this economic regulator, and to expect it to carry on, even with Chinese walls, as the arbiter on foundation trust status is a big ask, given that most of the promising candidates for foundation trust status have already jumped over the bar and we are getting down to the ones that have been finding it rather difficult to jump over the bar. That could be because the Government have set themselves the target of 2016. We set ourselves targets of 2008 and 2012, and quite a lot of trusts have still got nowhere near jumping over the bar, so I certainly would not bet the farm on them all having cleared the hurdles by 2016.
Monitor, in its role as the arbiter on foundation trusts, needs to keep a very close eye on those that have cleared the bar and to intervene when it needs to. The Secretary of State is actually embroiled in that process. The cases have to be cleared by the Department of Health and the Secretary of State before they go on to Monitor. That is a long-established process. The Secretary of State is going to become involved to some extent if trusts lose their foundation trust status; they go back into the pool in a sense.
We are now dealing with a situation that is much more difficult financially and much more challenging than it was under the previous Government. We are trying to get Monitor to do an even more difficult job with the most difficult trusts in an extremely difficult climate and to take on the job of being an economic regulator. There are real issues about whether that can be done and about separating out the areas where the Secretary of State has a legitimate role. It is legitimate for the Secretary of State to have a presence in the build-up to a foundation trust application and when a trust loses that status. However, that set of issues is separate from the accountability issue when Monitor performs the role of an economic regulator. Will the Minister share with us some thinking about how those separate functions will be handled in the real world that we will face over the next three to five years?
Baroness Williams of Crosby
My Lords, I wish to address my Amendments 274AA, 274C, 274D and 274E in this group. I shall speak as briefly as I can. I share many of the concerns expressed by the noble Lord, Lord Warner, on whether we are overloading Monitor with too many requirements to make judgments, to intervene and to be responsible to enable any single body to function, however brilliantly led it might be.
This amendment is about the conflict of goals on the part of Monitor. I believe that it is a very important amendment, although it looks modest enough. The Bill states that if Monitor has a conflict of objectives—or, more clearly, a conflict of duties—that will in essence be resolved by the head of Monitor making a statement about the nature of that conflict and the ways in which it could be resolved and then turning it back to the perpetrators to solve the problem as best they can. Those conflicts are substantial. We should make it clear that they are fundamental to the whole argument that we have been having, including in the brilliant previous debate because, first and foremost, the general and primary objective of Monitor is supposed to be the promotion of patient health and patient care. That is fundamental. We heard in the very eloquent speech of the noble Baroness, Lady Meacher, how she thinks Monitor has changed its philosophy of life within the NHS and has become much more concerned with patient care and patient protection than with the pursuit of competition primarily for its own sake. That is a very important step forward in our understanding of the Bill.
However, it still leaves open the possibility of a conflict arising between the duties of Monitor. I have just mentioned the first of those duties—the care and concern about patients who are dependent on the health service. The second duty continues to be a concern with anti-competitive policy, and the third is concerned with integration and collaboration, about which there has been a great deal of discussion and many amendments in this House. The Bill gives us very little guidance on any conflict over which of those duties should be given priority over the others. It says that a conflict of duties or a conflict between responsibilities is to be resolved in this rather heavy-handed way of a statement being made about the nature of the conflict and how it might be resolved, which is then distributed to all those concerned. However, there is no resolution of the conflict. It remains part of what one might describe as an ongoing negotiation that some day might resolve itself in one direction or another. It has interesting parallels with yesterday’s events. However, Amendment 274E sets out very clearly that we believe that ultimately conflict should be resolved by the Secretary of State. We accept all the intervening proposals in the Bill at present—that statements should be made, that the conflict should be defined, and that it should then be passed on to those involved to try to find a solution. If, at the end of the day, no solution is found, it is absolutely crucial, in our view, that this becomes the responsibility of the Secretary of State as the ultimate goal of any accountability or responsibility within the service itself.
In this House I think we have got much closer to recognising how significant this final duty over a range of issues is. The Secretary of State is open to accountability to Parliament and to the general public, the people of England, so we say in Amendment 274E that if no solution can be found, there should ultimately be a reference back to the Secretary of State, who then has to make this ultimate decision. We have deliberately framed it to say that he is the ultimate decider, not one of those deciders on the way, although Monitor certainly has a role in resolving the conflict.
Since the future health service will in part be defined by what is seen to be the most significant of those duties, I think the Minister and most of us in this House believe that that central duty has to be responsibility to the patient and to the care and protection of the patient. I urge us to give this very serious consideration, because it is part of the pyramid that was set out in the brilliant speeches in an earlier debate by the noble Baroness, Lady Thornton, by my noble friend Lord Clement-Jones, and by my noble friend Lord Newton of Braintree, who has now had to leave us. I therefore propose the amendment in that spirit. It puts into a microcosm the concept of where the most responsible and urgent duties on Monitor lie.
Lord Warner
Is the Committee happy for me to continue? I consider that research evidence as is available, such as that carried out by Dr Zack Cooper at the LSE, shows the benefits of competition and supports the view that competition, when used sensibly, improves services for patients and can indeed save lives. It is perfectly possible to support both competition and integration; they are not mutually incompatible. I shall not pursue the evidence base for my views today. However, I should like to clarify briefly the circumstances in which we should be supporting the use of competition in the NHS in the best interests of patients and why it is important to tackle barriers to entry to the NHS market. It is important to recognise that we already have an NHS market in which many NHS providers do indeed compete for patients against other NHS providers. The Bill does not suddenly inject competition into the NHS but merely tries to impose some better rules and a system for regulating that competition.
There are basically three sets of circumstances in which competition could—not should—be used. The first is that, as a matter of principle, all NHS providers should be subject to market testing periodically. The second is when there is clear provider failure and it seems sensible to test the market to establish the best set of arrangements for replacing the failed incumbent. The third is where there is a set of circumstances when the NHS itself—the commissioners in practice—wish to change significantly the way in which services are provided and it is not apparent that the current incumbents can adjust quickly to the patient’s needs. The first set of circumstances has often caused a great deal of angst in the discussion of competition. I certainly do not start from that position. I believe that it is the second and third areas that I have described where we need to examine whether there are real barriers to entry by new providers, irrespective of whether those providers come from elsewhere in the NHS—from the private sector, social enterprise or the voluntary organisations.
Amendment 266 is concerned to establish much more clearly than now what the barriers to NHS market entry are. We know from the work of the collaboration and competition panel that primary care trusts have behaved in anti-competitive ways and have frustrated the best interests of patients. We know from the experience of the East Surrey nurses when they tried to set up a social enterprise how frustrated they were at changing themselves from NHS employees into a social enterprise so that they could compete for NHS business. We know that across the voluntary sector, voluntary organisations have been frustrated over their attempts to compete for NHS services over a long period of time. We also know that many private providers of services find the tendering processes for providing NHS services prolonged and excessively expensive and that they are too often frustrated by shifting political opinions about the desirability of competition.
I could go on with examples of the way in which the NHS has effectively shut the door to new entrants. Some of the most recent examples are the ways in which many primary care trusts divested themselves of their provider services without any proper system of market testing when it was clear that many of those services were extremely inefficient. We need to take the NHS out of its comfort zone in a future where it faces a huge set of demographic and financial challenges. Keeping it in the NHS family is no longer acceptable or in the public interest. We need an independent, authoritative and robust analysis of the barriers to entry to the NHS market so that we can consider what action should be taken to remove those barriers. Amendment 266 proposes that Monitor does this within a year of Royal Assent. I believe that Monitor would welcome being given this assignment but I would be more than willing to consider alternatives if the Government thought, for example, that the Office of Fair Trading was a more appropriate organisation to do the job. It is important that we get this job done as speedily as possible. I also support Amendments 278 and 287 to which the noble Lord, Lord Patel, will be speaking and to which I have added my name.
Baroness Williams of Crosby
My Lords, I am very grateful that Amendment 265C has somehow managed to escape from the tsunami of amendments so that I can bring it to the Committee’s attention very briefly. It is again an amendment that seeks to make sure that when competition is allowed or encouraged—the noble Lord, Lord Warner, has spoken on these lines himself—it should be because it clearly improves the quality of health and the quality of provision within society as a whole. The purpose of Amendment 265C is to make it clear that competition is welcome when it improves the quality of the service; it narrows inequalities; it ensures, in particular, that there should be a better outcome as a result of that competition; and it is, therefore, a relatively qualifying condition to permitting competition to flourish.
We have heard a number of very well informed speeches in the House, not least from the noble Baroness, Lady Meacher, to the effect that in some situations competition can clearly encourage innovation, can improve new approaches and can help in providing the NHS a way forward to deal with the huge problems that we all recognise exist. However, in large part we are also very worried about the idea of competition as the ruling principle of the health services in this country, and we heard a very moving set of evidence from the noble Lord, Lord Owen, and the noble Baroness, Lady Thornton, about the devastation that unrestrained competition can exercise on a health service.
However, having spent 10 years of my life in the United States, I absolutely corroborate that. I know far too many people, one or two of whom are National Health Service refugees to this country, of outstanding talent, who are not in a category where they can afford the huge prices that are charged for complex and chronic conditions in the United States. How do we achieve this difficult balance so as to have competition that improves the quality of the health service but does not bring about the devastation of a great many human beings because they simply cannot afford the cost of complex operations or looking after the chronically ill? The situation of the chronically ill in the United States is pathetic in very many cases.
Therefore, this amendment and several others in this group would enable us to walk this delicate line in a way that permits competition, but competition that is in the interests of the patients of the health service and not competition that could devastate the health service itself.
Health and Social Care Bill
Debate between Baroness Williams of Crosby and Lord Warner(13 years ago)
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Lord Warner
My Lords, I regard this amendment as one of the most important building blocks in the Bill, although I have to confess that I am not sure that it will attract the same enthusiasm from the Government or their Civil Service advisers. The amendment is based on my own experience as a Minister, especially when dealing with the financial meltdown of the NHS in 2005-06—which I have recorded for posterity in a book that I have written on the subject. Since I believe that the NHS is heading for another financial meltdown, Ministers, especially in the Treasury, might give some serious thought to the proposal in Amendment 102.
There is a very good book about the history of the Audit Commission called Follow the Money. I think that we should do a bit more following of the money so far as the NHS is concerned, and not simply rely on things like outcomes frameworks. At the core of this amendment is the rather simple idea that there should be a minimum set of standardised management accounts covering finance, performance and asset use, applying to all bodies providing NHS services that spend more than £500,000 a year. I have put that fairly arbitrary figure in the amendment so that bodies which are relatively modest spenders are not brought into these requirements. It is a matter for negotiation whether that amount is the right one to set. However, with the bigger, higher spending bodies, we need greater standardisation of management accounts because we need to know more than we know now. At present, we cannot easily compare the performance of similar bodies in terms of how they spend our money, how this expenditure relates to what they produce, the value for money they give and how well they use public assets.
It has often been forgotten, under successive Governments, that the NHS is, in effect, a major landowner and user of public buildings. The real estate footprint of the NHS is far too large for the buildings on it and the use that is made of them, and I will give a little data later in my remarks. There is, at present, little rigorous assessment of whether the NHS holds on to land unnecessarily, how much of its accommodation and equipment is used well or intensively, or how much of the buildings or land is left vacant. Work done in the London SHA, after my time as a Minister, shows how scandalously poorly the NHS uses land and buildings. There is no reason to believe that the situation is different in other parts of the country. I am happy to give the Minister and his boss chapter and verse outside this debate. However, in a nutshell, in non-foundation trust sites in London, only some 18 per cent of NHS land was built on; another 18 per cent was underutilised; and some 25 per cent of the buildings were functionally unsuitable for the purpose for which they were used. I have given you a snapshot of London two or three years ago, but it is probably not much different now.
Although we have a great deal of data on the performance of acute hospitals, much of it cannot be related to expenditure because service line accounting—in the jargon—is still not used in most hospitals, especially outside the foundation trust sector. However, acute hospitals are a positive treasure chest of performance data compared with community health services, mental health services and primary care, where any relationship between what they spend and what they deliver is more conspicuous by its absence. Any public company which tried to run its affairs with the same financial performance or asset data as the NHS does would be insolvent very quickly. We should take the opportunity of this Bill to do something about moving to some standardised management accounts for all but the smallest providers.
If this amendment is passed and this requirement is put into the Bill, it would improve commissioning, choice and competition. Without the data that would be produced by implementing the amendment, it is very difficult to secure effective commissioning, effective choice and effective competition. One simply would not have the data to compare on a standardised basis the performance of many of the bodies involved.
I recognise that some of your Lordships do not favour competition. It is certainly easy to resist competition in the NHS if it remains a largely data-free zone in terms of finance and performance. Good commissioning and patient choice become very difficult to deliver if one does not have that information on a standardised basis.
I hope that the Government are prepared to give proper consideration to this longstanding problem. I do not regard this as a party-political issue; this is all about good governance and running the NHS more effectively on behalf of those who are funding it. I beg to move.
Baroness Williams of Crosby
My Lords, it would be very helpful if the Minister could say something about the proposals with regard to the accounts and financial statements made by CCGs, which will obviously depend a great deal on the guidance from the board.
I am concerned that a number of clinical commissioning groups without any great knowledge of how to deal with audit and financial problems will emerge. You could quite quickly see a commissioning group getting into difficulties, not because it was not performing well but because it had very little awareness of requirements relating to information on its conduct in relation to assets and finances that was needed to establish its standing as a proper clinical commissioning group. I am concerned because there is already some evidence of clinical commissioning groups seeming rather unclear about the accounting standards that they have to live by. It is important that the board makes very clear indeed what its expectations are and that it involves, as the amendment would require, the National Audit Office, which will become—and in some ways is already—a fundamental arbiter on the quality and standards of accounting practices.
I hope that the Government will consider the amendment carefully and that the Minister will let us know what the Government’s intentions are with regard to setting out the standards that they expect from clinical commissioning groups and that the board should lay down. The Bill is currently uncommunicative on the subject.
The whole process of procuring the pharmaceutical and other products that a commissioning group will need is always problematic. It is crucial that what is required is clearly set out, and that there is an indication under which we can compare one clinical commissioning group with another.
Baroness Williams of Crosby
I think the answer to that had probably better come from the department rather than from me, but I am consistently surprised by the failure, not of this Government but of Governments of the United Kingdom for a long time, to say what the real achievements of the NHS have been and to recognise that outside this country it is widely regarded as perhaps one of the most outstanding health services in the world. It is worth saying that from time to time because we have 1.2 million people employed in the NHS and they deserve a great deal of the credit for having maintained a high standard in the face of very considerable financial pressures, even in the past. We have always had among the lowest expenditures per patient in the 11 highly industrialised countries, with only a couple of countries—Australia and New Zealand —spending less than we do.
There are two points to this argument. First, we are in a much better place to integrate care than we seem to think we are because we have already clearly established relations of trust between doctors and patients, and between hospitals and doctors, to an extent that other countries clearly regard as enviable. Secondly, one has to ask why we suppose that competition is a better way to deal with healthcare than are integration and collaboration. There is one area where competition is clearly crucial, and I accept that. It is in innovation and in trying out new ideas. None of us would in any way be opposed to that happening. However, I would like to put it on the record that if we are going to move in the direction of collaboration and integration, we have a very strong base on which to do it and we have the makings of something very impressive and important. The makings of that appear to be stronger in this country than in most others.
Lord Warner
I would not normally have interrupted the noble Baroness, but this canard that somehow integration is incompatible with competition has to be challenged. I refer the noble Baroness to the King’s Fund’s work on integration and its citing of Kaiser Permanente operating in a competitive market and doing very successful integration. I would also refer her to the peer-reviewed article by Zack Cooper of the LSE in a recent edition of the Economic Journal, which makes it absolutely clear that competition under the previous Government both improved patient outcomes and reduced deaths.
Baroness Williams of Crosby
I have actually gone in to the story of Kaiser Permanente very carefully. It is not surprising that if you choose the very best example in another country you can make a favourable comparison. I am talking about the outcomes for a whole population rather than a particular part of a population. I have said already that there are certainly areas where competition can play a very important part—I referred to innovation and new ideas—but I am simply putting on the record that if you look at the comparison between the health services of the 11 most advanced, richest and most industrialised countries in the world, the combination of integration and competition that we have here appears to have rather better outcomes than in those countries that rely much more heavily on competition such as the United States.
Health and Social Care Bill
Debate between Baroness Williams of Crosby and Lord Warner(13 years ago)
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Lord Warner
My Lords, before the noble Earl responds, may I offer him a little piece of advice, as a former Health Minister who had to take controversial legislation through this House? I would say to him that if I had been confronted with this situation, I would have gone to my boss, the Secretary of State for Health, and asked him to facilitate the passage of this legislation through the House by making this information available to the House.
Baroness Williams of Crosby
My Lords, I, too, wish to ask the Minister one additional question. Can he give any idea of how quickly the proceedings that he mentioned in his recent letter to Members of the Committee will take? He showed in that letter that there needed to be discussions with other ministries and that there needed to be consideration of whether an appeal should be brought. I know that he appreciates, as much as the rest of the House does, that our debates in many areas would be very much affected by knowing what is in the risk register, and in particular, perhaps, those parts of it that the noble Baroness, Lady Thornton, suggests could be made available. Can he give the House any idea of the probable timetable, as we are all conscious of the fact that the debates might have to be repeated all over again if the information in the risk register is relevant to the things that we are talking about?
Lord Warner
My Lords, my noble friend raises a very important point. I can see some differences of approach here. Today, I am speaking on the rather narrow issue of helping the Secretary of State to be a powerful influence in improving public health. Of course, it is for your Lordships' House to debate further, as we progress through the Bill, whether we want Clause 1 to go a little further than the Government seem to want in terms of the Secretary of State’s responsibilities. I have sympathy with my noble friend in seeing a slight confusion on the part of the Government in some of these areas.
Baroness Williams of Crosby
My Lords, I wish to express strong support from these Benches for the amendments spoken to by the noble Lord, Lord Warner. Perhaps I could mention one or two points. It is clear that the emphasis on public health, important as it is at the national level, must also be reflected at the local level. I say again, therefore, that the amendments about expecting clinical commissioning groups to have at least one board member with public health experience are important in reflecting the kind of things about which the noble Lord, Lord Warner, has spoken.
I also believe that the noble Lord has put forward in Amendment 68 a very interesting idea that ought to give a higher profile to public health advice on how to deal with diseases and illnesses in the population as a whole. Obviously I share the views expressed by the noble Baroness, Lady Jay, on the importance of putting the Secretary of State squarely behind these issues, and I shall give one example of that. The Bill provides for extensive redress on issues related to smoking and alcoholism, and perfectly properly so. People are perhaps more reluctant to point the finger in relation to some of the serious public health issues arising from the food industry, issues which have great implications for the food industry's relations with the overall economy. There has over many years been a very slow response to growing evidence that certain foods, particularly foods directed at children and young people, have a substantial impact on health. If one looks at the ways in which those foods have been advertised, with an emphasis on how attractive they are, not only so that people will taste them but so that there will be a certain addiction to them, one will see an issue on which there should be a major consultation between the Department of Health and that industry. So far that has largely been limited to issues such as labelling, which is sometimes so complex that the ordinary consumer would not easily pick it up.
There is a continuing emphasis on, for example, foods that attract young children but which contain high levels of salt, sugar and so on, which is all the more serious in a country such as ours which, sadly, has a growing problem of obesity. I strongly suggest that the Government should look closely at Amendment 68 and the idea of establishing a standing advisory committee on public health. I would also point out the importance of assigning responsibility all the way up to the Secretary of State to ensure that these negotiations with industries and special interests which are crucial to the nation's health are conducted at the highest level and that public health is recognised as a full companion to all the other aspects of health. In that respect, I am very pleased indeed that the Government have put emphasis on the independence of the public health area and allowed public health to be taken out of the Department of Health and given its own status. That is a very long step forward.