Health and Social Care Bill

Earl Howe Excerpts

Monday 13th February 2012 Lords Chamber

[Lord Rea]

My Lords, I have a question for the noble Earl on this amendment. What will be the relationship of Public Health England, the national body that will take over the functions of the Health Protection Agency and other areas, to the national Commissioning Board? I wonder whether the noble Earl can guide me to the statutory framework for Public Health England, as it does not seem to be in this long Bill, although it is possible that I am just incompetent and have not spotted it. It seems to me that the chief officer—I hope that he will be a highly qualified public health specialist—who is the senior officer in Public Health England, should have a seat on the national Commissioning Board. That should perhaps not necessarily be permanent, but he should be consulted frequently by the Commissioning Board.

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

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

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

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

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

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

[Baroness Armstrong of Hill Top]

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

[Earl Howe]

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

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

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

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

[Lord Hunt of Kings Heath]

My Lords, I am very grateful to the noble Earl, Lord Howe. He thinks that I am being inconsistent with some of my amendments, but I still believe that at this stage it is appropriate to put forward probing amendments. If I am inconsistent, I am trying to point up the inconsistency in the Government’s approach, which is that on the one hand we are told that the national Commissioning Board is to be at arm’s length from the Department of Health and Ministers, but then we find that it is at such arm’s length that the chief executive has to have his appointment approved by the Secretary of State.

On parliamentary hearings, the noble Earl said that the Office for Budget Responsibility is rather different from the national Commissioning Board because it has a unique role in being dually accountable to government and to Parliament. My argument is that the national Commissioning Board is different from many other public bodies because of the concurrent powers it is given in Clause 1 and the fact that, unlike many bodies, it does not have a straightforward ministerial power of direction, as we have discussed. The Government have deliberately sought to put it on a different plane. For that reason, it would have been useful for them to have followed the example of the Office for Budget Responsibility and given the appropriate Select Committee a veto over the appointment of the chairman. As I said earlier, I accept that the Government have certainly gone halfway in the sense that Professor Grant appeared before the Health Select Committee. That is very welcome, and I am sure it sets a precedent for the future.

On public health representation on the board, for which my noble friend Lord Beecham and the noble Baroness, Lady Williams, argued, I hope that the national Commissioning Board will take account of the views expressed in your Lordships' House to ensure that there is strong public health input at the NCB level.

The first point the noble Earl made was that the national Commissioning Board is to have as much autonomy as possible. If it is, then it jolly well has to show that it is going to be accountable. I hope that the NCB will give parliamentarians a regular opportunity to discuss with it its programmes and the way that it is going to work in the future. I would be very concerned if, through the autonomy philosophy, Ministers in one way or another resisted debates or interventions in relation to the actions of the NCB and the NCB itself proved not to be open to having debates with parliamentarians. That is where the problem may well arise.

We will have to see but I for one hope that the national Commissioning Board will accept that it has been given enormous power—albeit with some constraints, which we have discussed today—and that it has to show it is going to be properly accountable for it. I beg leave to withdraw my amendment.

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Moved by

[Earl Howe]

34: Clause 12, page 7, line 17, at end insert—
“( ) After subsection (1E) insert—
“(1F) In exercising its functions under this section and section 3A, a clinical commissioning group must act consistently with—
(a) the discharge by the Secretary of State and the Board of their duty under section 1(1) (duty to promote a comprehensive health service), and(b) the objectives and requirements for the time being specified in the mandate published under section 13A.””

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Moved by

[Earl Howe]

35: Clause 12, page 7, line 22, at end insert—
“( ) In section 272 of that Act (orders, regulations, rules and directions), in subsection (6) before paragraph (za) insert—
“(zza) regulations under section 3(1D),”.”

[Earl Howe]

My Lords, I shall speak also to Amendments 39 and 40, 74, 137 to 140 and 149.

The Government have accepted all the Delegated Powers and Regulatory Reform Committee’s recommendations for amendments to the secondary powers in the Bill. This group of amendments makes most of the changes necessary to fulfil those recommendations. The others will be included in later groups. I beg to move.

[Baroness Williams of Crosby]

My Lords, I shall speak briefly to this group of amendments. We are very pleased that there should now be acceptance of the detailed suggestions of the Delegated Powers and Regulatory Reform Committee. That gives a much stronger underpinning to parliamentary accountability, which we appreciate.

I should like to ask my noble friend a couple of questions. At this hour of the night I may be misinterpreting some of the wording in the amendments but I should like to address two of them in particular. The first is Amendment 35, to which I have added my name. I simply want to ask a little more about the effect of this amendment on inclusivity. As my noble friend will know, there have been many attempts to make inclusivity part of the Bill, and from time to time we on these Benches have expressed concern on the issue. I should be grateful if he could explain the effects of the Secretary of State’s ability to have a commissioning group determine when a patient can be excluded from the overall effect of the directions under Amendment 35. I assume that that would be because they come under the board rather than the CCGs but my noble friend may be able to give me a slightly purer view of the exact meaning.

My second question relates to Amendments 137, 138, 139 and 140. What are the effects of the Secretary of State’s ability, as I understand it, to proceed with orders and regulations without that effectively being the case in the Bill? In other words, could the Secretary of State, in certain circumstances, simply override what is in primary legislation by passing orders and regulations or would he effectively have to fall back on regulations and orders at a later stage?

I apologise for asking these two questions at this late hour but they are asked in all good faith. I think it is important that the public and Parliament understand exactly what is intended by the amendments. Because they are rather complicated, I may have got it wrong but I hope that I have not.

[Earl Howe]

My Lords, on Amendment 35, Section 3 of the National Health Service Act 2006, as amended by the Bill, states that CCGs have responsibility for persons provided with primary medical services by a member of the group and persons usually resident in the group’s area who are not provided with primary medical services by a member of any CCG. Regulations under subsection (1D) enable the Secretary of State to specify that this would not apply for persons of a prescribed description, or in prescribed circumstances—for example, for persons registered with an English GP who were resident in Scotland. As currently drafted, these regulations would be subject to the negative procedure in Parliament. Following the recommendation of the Delegated Powers and Regulatory Reform Committee, the amendment would make these regulations subject to the affirmative procedure.

Amendments 137 to 140 are linked to Amendment 39. They would make clear that the Secretary of State is not able to delegate his function of making orders or regulations specifically relating to the provision of primary medical, dental or ophthalmic services and any functions relating to local or other pharmaceutical services to the NHS Commissioning Board, a CCG, a Special Health Authority or to such other persons or bodies as may be prescribed. The amendments would make it clear that the Secretary of State cannot delegate the function of making orders or regulations to other bodies under Clause 48.

If that short explanation represents an over-abbreviated one, I shall be happy to write to my noble friend after this debate, but I hope that that is helpful.

Amendment 35 agreed.

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[Baroness Thornton]

My Lords, it is important that the Minister can give us some satisfaction in answer to the remarks made by the noble Baroness, Lady Hollins, particularly in view of the tireless pursuit of these issues by the noble Lord, Lord Rix. This small suite of amendments aims to start at the top as it talks about the Secretary of State’s power to require the board to commission services including for those with profound and multiple learning disabilities. It then puts a duty on the board to reduce inequalities, which will involve collecting data on the experiences and outcomes of patients with these disabilities. It also sets out that there should be no upper limit on the length and type of advocacy support that must be provided by local authorities. Therefore, it aims to provide a suite of amendments that address the whole system and the interventions that will be necessary to provide the right framework under the new regime for some of the most vulnerable people in our country.

It was interesting that, on a more general matter concerning children and the Bill, the NHS Confederation deputy policy director, Jo Webber, said recently that the Government's plan to recruit 4,200 extra health visitors by 2015 was leading to a loss of staff in other vital roles in some areas. For example, many established and successful children's health teams are being rearranged or in some cases disbanded simply to employ more health visitors. Ms Webber’s report claimed that the Government should replace the health visitor target with one that focused on the outcomes for children rather than on the numbers of staff in place. That was a very wise remark.

I turn to the children with the most complex difficulties and the question of how under this framework they will receive appropriate assessment and treatment that will address their individual needs. At best, there will be problems with the transition to the new system, and if there are gaps in the service for vulnerable children and learning-disabled patients who perhaps have GPs with limited experience, and doubts about how GP consortia will react to the situation, that is an issue of great concern. Historically, there has been an imbalance whereby people with learning disabilities have lost out when compared with those, for example, with mental health problems—who have also lost out. Therefore, how this group of children and young people are catered for will be a way of testing whether these things will work at all.

[Earl Howe]

My Lords, I am grateful to the noble Baroness, Lady Hollins, for her typically knowledgeable contribution to today's debate. I hope she will accept that the Government are committed to improving the health of people with learning disabilities, to help them both to live longer and to stay healthier for longer. The Bill aims to drive improvements in outcomes by establishing clinically led commissioning, by giving patients a stronger voice and by embedding quality improvement and a reduction in health inequalities at all levels of the system.

We debated these amendments in Committee and I have since exchanged correspondence with, and met, the noble Lord, Lord Rix. I understand and share his concern, and that of the noble Baroness, that there should be robust arrangements for commissioning services for people with profound and multiple learning disabilities, and for people with complex needs or challenging behaviour. I am afraid that it may disappoint the noble Baroness to hear that I still believe that the amendments are unnecessary. However, in saying that, I hope that I can reassure her about the reasons why.

On Amendment 37, the regulation-making powers in new Section 3B are already broad enough for the Secretary of State to require the board to commission these services. The current intention is that the regulations under subsection (1)(d) will be used to give the board responsibility for commissioning specialised services for rare and very rare conditions. The current specialised services national definitions set will form the basis for the services included in these regulations. These will include a number of services for people with profound and multiple learning disabilities, and people with complex needs or challenging behaviour. The services that are not considered specialised will be commissioned by CCGs, although in practice there will need to be close collaboration between the board and CCGs to ensure that patients receive a seamless service.

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[Baroness Jolly]

Certainly local government will play a key role in all this, so the scrutiny committees would seem to be a sensible place to take information from, which would then work in with their local healthwatch.

[Earl Howe]

My Lords, let me begin by setting out what we intend for the standing rules. We intend to use the rules to replicate core elements of the current system that need to be maintained in the future. For example, the standing rules will be used to provide the legal basis for certain patient rights as set out in the NHS constitution. Amendment 38, tabled by the noble Lord, Lord Hunt, will do three things. First, it seeks to require the Secretary of State to make standing rules as opposed to enabling him to do so. Secondly, it would require rather than enable him to update the standing rules no less than once a year; and finally, the Secretary of State would be obliged to share the standing rules with the relevant committee of the House of Commons for consideration at least two months before they are laid in Parliament. I hope that I can help the noble Lord here.

It is already our intention to make standing rules and to review them on an annual basis alongside the mandate. Where it is necessary, the Secretary of State would update the standing rules. Imposing a requirement on him to produce regulations regardless of whether an update is necessary will introduce what I believe is a needless administrative and bureaucratic burden on the system, and we surely do not want that. The amendment would also set out a requirement in legislation for the Health Select Committee to examine the proposed standing rules. I hope that I can reassure him that the committee would have the opportunity to examine proposals, and that Ministers in the department would engage constructively with the committee on any inquiry. However, I do not think that it is usual practice for legislation to set expectations as to the subject that Select Committees should examine or what areas committees should focus on. I should also remind the House that any regulations laid in Parliament are also considered by the Merits Committee of your Lordships’ House, as well as the Joint Committee on Statutory Instruments.

I turn now to the remaining issues. I think that it would be helpful to set out what we aim to achieve with the mandate. The mandate will bring with it an unprecedented degree of transparency, scrutiny and accountability to government policy for the NHS. For the first time, the Government’s core objectives for the NHS commissioning system will be subject to full public consultation.

A number of the amendments in this group, both government and from your Lordships, focus on the parliamentary scrutiny of the mandate. Amendments 41 and 46, tabled by the noble Lord, Lord Hunt, would make the mandate subject to the affirmative resolution procedure and require the Secretary of State to lay the mandate in Parliament in draft. I hope that I can reassure your Lordships that we have already built in sufficient parliamentary scrutiny of the mandate to render the amendments unnecessary.

Following the Delegated Powers and Regulatory Reform Committee’s recommendations, the Government have tabled Amendments 45 and 47, to which I now speak, to allow specific parliamentary scrutiny of the “requirements” within the mandate by providing that they can be brought into effect only by regulations subject to the negative resolution procedure.

However, making the mandate as a whole subject to the affirmative procedure would go too far. Parliament will set the parameters that the NHS will operate within, through this Bill and the legislation that will support it. This is a Bill that takes many powers away from Ministers and gives them back to Parliament, but it should be for the elected Government of the day, not for Parliament, to set specific policy objectives within that legislative framework following full consultation.

Of course, parliamentarians will have an interest in the mandate, and will have the opportunity to debate and influence it in the usual ways. As Clause 1 of the Bill makes clear, following our debate last week, the Secretary of State retains his responsibility to Parliament for the health service; and Parliament has the right to hold him to account for the health service, including the setting of the mandate.

Amendment 43, tabled by my noble friend Lady Williams and three of my other Liberal Democrat noble friends would require the Secretary of State to explain how the mandate supported his cross-cutting duties. I think that part of the motivation for the amendment is a concern to ensure that the mandate is not simply about financial issues. I hope that I can reassure my noble friend Lady Williams in particular on this point. It is our firm belief that the mandate should focus on the strategic outcomes and policies that the Government wish the NHS Commissioning Board to achieve. At the heart of this should be objectives for improvement against the NHS outcomes framework. The mandate will also be an opportunity for the Government to set specific objectives about the policies that we have set out in the NHS White Paper and the government response to the NHS Future Forum; for example, about extending patient choice and enabling clinical commissioning groups to flourish.

While the mandate will set the budget for the board and could include objectives relating to efficiency or financial management, it definitely will not be primarily about financial controls. Of course financial controls are essential, but the Bill has separate provisions for these under Clause 23. The mandate will not be a narrow and technical financial document which requires a separate justification of how the Secretary of State has fulfilled his legal duties; rather, it will visibly embody his duties. So I do not believe that an extra reporting requirement in the Bill is necessary.

Amendment 49 would require the board in consultation with the Secretary of State to set standards for the management of commissioners’ and providers’ accounts to enable efficiency comparisons. This comparison would be published annually by the Secretary of State. I understand the concerns which have led to the tabling of the amendment, but it would be an unnecessary and perhaps bureaucratic imposition on NHS providers and commissioners, distracting them from improving outcomes for their patients and the wider QIPP challenge.

It is important to be able to make comparisons of efficiency, but the board and, in turn, CCGs should be given the autonomy to decide whether and how to do this. I happen to know that work is currently proceeding in this area.

Monitor’s role currently includes the oversight of the financial management of foundation trusts, and the Trust Development Authority will do the same for non-FTs, so this information is already available for providers.

My noble friend Lady Jolly referred to HealthWatch England. It is specified in subsection (8) of new Section 13A as someone the Secretary of State must consult in developing the mandate. HealthWatch England will be able to feed in the views of local healthwatch as well.

Amendments 48 and 293, tabled by the noble Lord, Lord Hunt, would require parallel mandates to be set for Monitor and the Care Quality Commission. Again, I hope that I can persuade him that that is not necessary.

Monitor and CQC are independent regulators, with clearly defined statutory functions. Their core role is unchanging and regulatory, rather than about achieving a series of evolving policy objectives. Therefore, there is far less reason for the Government to set them a specific mandate. The fact that there is a statutory mandate in the Bill for the Commissioning Board reflects the different nature of the board’s role.

As with any arm’s-length body, there is a framework agreement between it and the sponsor department, which is used as the basis for monitoring the body’s ongoing performance. That is the approach that the department uses and will be using for all of its arm’s-length bodies, including CQC and Monitor. That will be underpinned by formal reviews of each organisation’s capability, at least every three years.

The department will retain overall stewardship, system leadership and accountability for ensuring that the different national bodies are working as Parliament intended. As I have mentioned on previous occasions, the Secretary of State will have formal powers to intervene in the event of significant failure. I hope that that reassures the noble Lord, and that he will feel able to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, I thank the noble Earl for a comprehensive response to the interesting amendments that have taken us to the duly appointed hour. He has given quite some assurance about the fact that parliamentary Select Committees will have an opportunity to scrutinise both the mandate and the standing rules, and that is to be welcomed. I urge him even now to reflect on whether the parliamentary scrutiny might not be beefed up somewhat by some reference in the Bill alongside some of these amendments.

The noble Earl has said that the process will be transparent. That is to be welcomed. But in the end, if Ministers are determined to hand off power to the national Commissioning Board, it seems only sensible and right that the mandate in the standing rules under which that should be done should be subject to decent parliamentary scrutiny. I very much hope that the Government will give that further consideration.

This has been a good debate to round off tonight. I am most grateful and beg leave to withdraw the amendment.