Health and Social Care Bill
Earl Howe Excerpts(13 years, 5 months ago)
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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.
“( ) 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.””
“( ) 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.
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.
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.
Health and Social Care Bill
Earl Howe Excerpts(13 years, 5 months ago)
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Lord Owen
My Lords, before the House agrees that the Report should be received, I would like to raise some important constitutional questions. On 4 April, the day the Prime Minister and the Deputy Prime Minister embarked on their “listen and explain” experience and the legislation was paused, I wrote to the then Cabinet Secretary, Sir Gus O’Donnell—now of course the noble Lord, Lord O’Donnell—and raised with him the fear that, because of the long drawn-out legislative process, discussion of the Bill in this House could be pre-empted. I also told him that I had consulted the clerks in Parliament and it appeared that there was no written convention that guides the Government on what is or is not acceptable to take in advance of Royal Assent. Obviously they cannot implement the legislation in full.
Many of my concerns since then have been more than justified. I received a letter on 7 April from the then Cabinet Secretary that said:
“The Treasury guidance on ‘Managing Public Money’ sets out how, in some circumstances and if … conditions are fulfilled, departments can incur expenditure on the measures contained in a bill prior to Royal Assent. In addition, a department may take steps to prepare for implementation using existing statutory powers. I have therefore discussed your concerns with Una O’Brien, as Accounting Officer, in the light of this guidance. She has confirmed”—
this is important—
“that the work currently underway is taking place under the broad powers of the Secretary of State and NHS bodies under existing legislation. For example, the arrangement of PCTs into management clusters and the creation of pathfinder consortia are possible under existing powers in the National Health Service Act 2006. In addition, some of the changes currently taking place would be required regardless of the Health and Social Care Bill. For example redundancies in PCTs reflect the longstanding challenge, which pre-dates the Bill, to deliver up to £20bn of efficiencies across the NHS over the next four years for reinvestment in frontline services”.
As a result of that, there has been broad acceptance in this House that on these controversial questions, some of which are already agreed, the Government are proceeding under existing legislation.
On 16 September I was informed by the chairman of the Constitution Committee that that committee had briefly discussed the pre-legislative disappearance of PCTs, and had in front of it my correspondence with the Cabinet Secretary, which I had made available to Professor Tomkins, one of its advisers. I was asked whether I would provide more information about changes that had been introduced following Second Reading of the Health and Social Care Bill but prior to it coming to the House of Lords. I enclosed an up-to-date document in great detail that had been sent out for consultation by the Midlands and East Strategic Health Authority, which I thought gave a pretty clear indication of the anticipated massive changes to the whole architecture of the NHS, many of which seem as if they will be introduced despite the fact that the full legislative process was continuing.
I also drew attention to a speech that had been made in the other place by a Member of Parliament that had again raised the question of whether it was proper to stop the legislation when so much was already being done and so much pre-emption had occurred. Today I have written to the Constitution Committee on this question because an MP drew my attention to a letter that says that people,
“are absolutely terrified of the chaos that will apply if the Bill is dropped altogether now. Restructuring is a nightmare, un-restructuring could be even worse!”.
On today’s “World at One”, the chief executive of the Foundation Trust Network warned of a no-man’s land if the Bill did not go through.
This raises pretty big questions for legislation that is still to go through all its stages in this House, and it is a matter of great concern to this House when it considers reform. These conventions will become very much more important if we have an elected House of Commons—which of course we have—and an elected House of Lords, which I personally would like to see. There is no question that these conventions are important.
There are two important points here. First, the House should be aware of the fact that the Constitution Committee is seized of the problem and may well wish to make judgments on it. Secondly, we should not feed the idea that legislation can reach us but we cannot do anything about it because it has already been pre-empted. Whatever our views on the Bill, and it is controversial, it is important on democratic grounds that we maintain the position that legislation does not have full authority until it has gone through all its processes. That point needs to be reaffirmed. We should give no comfort to the opposite view in what we say in this House in the remaining stages of the legislative process.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, of course, the noble Lord, Lord Owen, had no obligation to give the Government advance notice of the issue that he has just raised. Nevertheless, I am sorry that he did not. I just say to him that everything that has happened to date in my department’s implementation of the transition programme has been done under the Secretary of State’s powers under the 2006 Act. This is all proper and lawful. However, this can go only so far. It is not a permanent solution, hence the need for the primary legislation that we are now debating.
It has been the practice of successive Governments, once a Bill has passed through the other place, to do as we have done and make preparations for that Bill’s implementation. The previous Government did it on a number of occasions and we are doing so as well. Furthermore, we are doing so in a measured and structured way. It is not an overnight process—it never could be. It is being done over a period of years. It in no way pre-empts the will of this House, which has made its views, to which the Government have listened very carefully, known on a number of issues.
While thanking the noble Lord for raising this concern, which I shall of course consider very carefully, as I always do, I hope the House will feel that it is unconstrained in how it presents amendments to the Government and how it argues for them. We, in our turn, will respond in a constructive manner, as I hope always to do.
Lord Howarth of Newport
My Lords, has the noble Lord, Lord Owen, not drawn our attention to a particularly egregious example of a problem that is, however, long-standing? Have successive Governments not taken the will of Parliament for granted following Second Reading of measures and begun to spend money and implement transitional arrangements on that basis? Has it not always been improper, and should Governments not be particularly careful when they are well aware that the policies embodied in their legislation are highly contentious? I hope that we may hear some considered reflections by the Government on the generality of this practice, as well as on this particular incidence. It may be that the relevant Select Committees of both Houses of Parliament will want to consider this problem.
Earl Howe
My Lords, in answer to the noble Baroness, Lady Thornton, there is no suggestion that the Bill could be withdrawn. We are clear that it is the right thing to do. Reform of the NHS is necessary and in the national interest, and the measures in the Bill represent the best way forward.
The noble Lord, Lord Warner, asked me about the powers of delegation. All I can say to him is that the delegated budgets to which he referred are delegated under existing powers, so there is no issue in law if that is what he was implying. However, I will endeavour to write to him if I have any further details for him on the subjects that he talked about.
The noble Lord, Lord Howarth, suggested that the Government were beginning to spend money. In one sense he is right because there have been redundancies in the NHS, but in another he misses the point. We have started to save a great deal of money. These measures will save £1.5 billion every year from the end of this Parliament and around £3.2 billion during this Parliament. We have begun to implement efficiencies and improve patient care at the same time. I hope he will look at these issues in the round.
Earl Howe
My Lords, we have had an excellent debate to mark the start of Report and I am very pleased—and, I must say, unsurprised—that the spirit of our debates in Committee has continued. I am particularly pleased that we have started with a topic as important as the parity of esteem between mental and physical health.
Amendment 1, moved by the noble Lord, Lord Patel, would ensure that the reference to “illness” in the description of the comprehensive health service refers to mental as well as physical illness. I am grateful to all noble Lords for the powerful case they have made for this amendment. I very much understand why this issue is of such importance to noble Lords, and why they believe that there is a declaratory value in inserting these additional words at this point in the Bill. As the noble Lord, Lord Patel, will be aware from our recent mental health strategy, achieving parity of esteem for mental illness is a priority for the Government. Therefore, I do not dissent in the slightest from the central principle being argued for here.
The question I have asked myself since Committee is whether the addition of these words would achieve what noble Lords intend, and whether they would add real value. In a strictly legal sense, they will not add value because legislation already makes it clear, through the definition in Section 275 of the National Health Service Act, that any reference to illness in the Act shall include both mental and physical illness. Therefore, wherever in the Bill the word “illness” appears, it already refers to both mental and physical illness. However, as my noble friends Lord Eden and Lord Alderdice said, what is required here—what really matters—are not words but concrete actions that will result in changes in attitudes and behaviours.
Before I tell the House which way I am leaning on the amendment, I will set out the steps that the Government have taken to that end. First, we are using the Bill to enhance the role of the NHS constitution. This plays an important role in emphasising the prominence and importance of mental health. It already contains a strong opening statement about mental and physical health. It declares that the NHS is there,
“to improve our health and well-being, supporting us to keep mentally and physically well, to get better when we are ill and, when we cannot fully recover, to stay as well as we can to the end of our lives”.
Current legislation requires all NHS bodies and providers to the NHS to have regard to the constitution. The Bill creates new duties on the NHS Commissioning Board and clinical commissioning groups not just to have regard to it but to promote it. This is why we feel that NHS bodies, staff, patients and the public will in future be much more aware of, and hence responsive to, the NHS constitution and the parity of esteem that it champions. Therefore, I am afraid that I cannot agree with noble Lords who implied that the Bill is silent on parity of esteem. We are giving greater prominence to the NHS constitution precisely because we want to see greater awareness of the values, including parity of esteem, that it contains.
Secondly, we have used a range of operational levers to drive forward the importance of improving mental health. Mental health is featured prominently in the NHS operating framework. We have updated the NHS outcomes framework to include indicators for mental health outcomes in a holistic context. The public health outcomes framework has a set of key mental health and well-being outcomes identified for national and local action.
Thirdly, our mental health outcomes strategy makes it crystal clear that mental health services should have parity of esteem. We said in the document that it is our ambitious aim to mainstream mental health in England. Furthermore, as noble Lords know, we titled the strategy, No Health Without Mental Health. I can tell the noble Lord, Lord Patel, that we are going further still by looking to publish a full implementation framework for the strategy in April this year. This will be co-produced and jointly owned by national mental health organisations in partnership with government. Work is under way to develop the content of the framework, including consultation with a wide range of partners. My conclusion is that much work is afoot, as well as levers already in the Bill, to deliver the parity of esteem between mental and physical health that we all want to see in clinical practice.
I turn to the amendment. Should the noble Lord, Lord Patel, invite the House to add these words to the Bill? I am afraid that I have concluded that the noble Lord should resist the temptation. Having reflected very hard on these words, I believe that they could be positively unhelpful to his case, as well as to the business in which we are jointly engaged, which is the drafting of clear, economical and unambiguous legislation. “Illness” is already defined in the Act and, for me, these words are not only legally superfluous, they also suggest that there is a divide between mental and physical illness rather than a convergence.
Lord Hunt of Kings Heath
My Lords, that is a very good point. As I say, it is always helpful when noble Lords point out errors and omissions in the drafting of amendments. Amendment 2 refers to “health care professionals”, and I am clear that nurses must be embraced within that definition.
On Amendment 62, I would not detract from the use of,
“education and training of the healthcare workforce”.
Lord Hunt of Kings Heath
My Lords, the noble Earl, Lord Howe, has kindly reminded me that we are not debating Amendment 62. It will be debated in a later group, which allows me a little time to reflect on the point raised.
Earl Howe
My Lords, this has been a very useful debate. Perhaps I can begin with a clear statement that the Government are committed to the education, training and continuing development of the healthcare workforce. This is fundamental in supporting the delivery of excellent healthcare services across the NHS. I am pleased that so many noble Lords share that view.
We are, however, in the rather odd position of having before us two groups of amendments on education and training. Given that we still await a further debate on the subject today, I should like to reserve some of the detail of my remarks, if I may, for that debate, when I address one of the amendments in the name of the noble Lord, Lord Patel. However, to begin with, and for now, I think that it will be helpful if I set the scene.
First, I confirm to the noble Baroness, Lady Finlay, that we made it clear in Liberating the NHS: Developing the Healthcare Workforce—From Design to Delivery, which was published recently, that we are committed to a national framework for education and training, with Health Education England providing national leadership and being directly accountable to the Secretary of State.
Health Education England will ensure that the healthcare workforce has the right skills, behaviours and training, and is available in the right numbers to support the delivery of excellent healthcare and health improvement. It will work with a range of key partners, including the medical royal colleges, professional regulators and the academic and research sectors. The national input and oversight will be there in all the areas which, rightly, the noble Baroness is concerned about. Health Education England and the wider education and training system will, as I said, remain accountable to the Secretary of State, who will have a duty to secure an effective system for the planning and delivery of education and training in the NHS. Employers and healthcare professionals will play a leading role in workforce planning and development through the establishment of local education and training boards, working with the education and research sectors. I shall have more to say about that in a moment.
I can reassure noble Lords straight away that postgraduate deans will continue to be a critically important part of the medical training arrangements. The Government listened to the concerns expressed in Committee by a number of Peers that the Bill did not go far enough in safeguarding the future education and training system. In this group of amendments, which I shall speak to shortly, we have tabled a number of proposals designed to address the gaps that noble Lords identified.
On Amendment 2, tabled by the noble Baroness, Lady Finlay, the Government have already introduced a duty for the Secretary of State to maintain an effective system for education and training. Our duty is more comprehensive than this amendment in that it applies to the whole healthcare workforce and not just doctors. The noble Baroness asked about the scope of Clause 6. Our duty applies to people who are employed, or who are considering becoming employed, in an activity which involves or is connected with the provision of services as part of the health service in England. This covers healthcare professionals at the centre of delivering healthcare, including doctors, dentists, nurses, midwives, pharmacists, healthcare scientists and the allied health professions. It includes registered and unregistered professions. It also covers non-clinical staff who are involved in, for example, the commissioning or administration of services. In the light of that, I hope that the noble Baroness will feel reassured to some extent and feel able to withdraw her amendment.
Baroness Williams of Crosby
My Lords, perhaps I may respond very briefly. The real argument that we should be having is almost certainly on the next group of amendments, and I have no intention of taking away from that debate in which, as we know, the noble Baronesses, Lady Jay and Lady Thornton, and other noble Lords—although unfortunately not my noble and learned friend Lord Mackay today—will take part. It is an important debate that symbolises for me something of crucial significance, and that is that in this House we have moved towards all-party agreement on the constitutional underpinning of the National Health Service; that is a great achievement.
I shall not take further from what the noble Baroness, Lady Jay, will want to say—except that perhaps I shall follow her on this issue—beyond saying that I am deeply saddened that over the past day or two we have seen what I believe to have been a far-reaching and radical attempt in this House to try to present an all-party consensual underpinning for the National Health Service being turned into what one can only describe as the most petty of political rows whose seeming intention is to try to acquire political balance for one side or the other. That is a great shame.
I think that many of us believe that the wording which has been accomplished—although I note the commitment of the noble Baroness, Lady Thornton, to the word “provide”—means that we can be satisfied with the constitutional group. We do not need to change the wording and what is now set out in the Bill after this long exercise is in fact legally watertight. I say that because some of the most distinguished lawyers in this House were part of the drafting process, including on the Labour side the noble and learned Baroness, Lady Scotland. On the Conservative side we had the outstanding figure of the former Lord Chancellor, my noble and learned friend Lord Mackay of Clashfern, and on my side, among others, my noble friends Lord Clement-Jones and Lord Marks of Henley-on-Thames. All these lawyers put their heads together in order to establish a basis on which we could agree, and I would suggest to the noble Baroness, Lady Thornton, for whom I have a great deal of respect, that if the word “provide” did not surface during that exercise, it is because it is to a great extent at odds with the facts at the present time as to who actually provides services for the NHS, and of course that has changed radically in recent years. It has changed radically because of steps taken not only by the present Government but also by the previous Government, when a great deal of provision came from newly established elements in the private sector, including intermediate treatment centres. Efforts were made to bring about an extensive network of hospitals to look at how far private treatment could be accepted and it was done on the basis of trying to bring new providers on the scene, which the noble Lord, Lord Darzi, among others, has talked about. I am probably one of those who are more “old-fashioned” in their view of the privatisation of the NHS, which I certainly would not support. That is not the same as talking about the competitive providers who under the previous Government and the present one have made some contribution to the services of the NHS.
I say with great respect to the noble Baroness that this pair of amendments is unnecessary. I think that, legally, the existing wording now stands up and has the precious boon of having been supported by all parties in this House and those who sit on the independent Cross Benches. We should therefore move on to the next group of amendments and be able, among other things, to celebrate our achievement, which I hope will enable the National Health Service to flourish and survive into the rest of this century.
Earl Howe
My Lords, as my noble friend has correctly reminded us, the next debate will give us the opportunity to discuss the package of amendments designed to clarify the Secretary of State’s accountability for the health service. I recently completed a series of meetings with Peers from across the House to understand their concerns about this and related issues. Thanks to the efforts of so many here today, including the noble Baroness, Lady Thornton, I am pleased to say that we have sufficient consensus to table a series of amendments on this matter. I very much look forward to discussing them when we reach subsequent groups.
Amendments 3 and 4, tabled by the noble Baroness, Lady Thornton, seek to reinstate the duty to provide. I do not wish to dwell too long on what I have said on previous occasions, but the noble Baroness will be aware that we are retaining the wording of the NHS Act 1946, where appropriate. For example, the Secretary of State retains his duty to,
“continue the promotion in England of a comprehensive health service”,
and his duty to,
“secure that services are provided”.
The reason for our removing the 1946 duty on the Secretary of State to provide services himself is that it fails to reflect the reality of the way that NHS services are delivered. In general and for many years, the Secretary of State has not himself exercised functions of providing or commissioning services. The functions are delegated to SHAs and PCTs. Under the Bill, however, this function will be conferred directly on a dedicated NHS Commissioning Board and CCGs.
Indeed, as my noble and learned friend Lord Mackay of Clashfern has pointed out previously, there has never been a straightforward duty to provide services. The requirement was framed as a duty to,
“provide or secure the … provision of”,
services. In practice, Ministers or the NHS bodies responsible for exercising the Secretary of State’s functions have usually exercised the second option, securing the provision, rather than the first, actually providing. The Secretary of State—that is, the Department of Health—has not provided NHS services directly for many years. Our policy is that the Secretary of State should neither provide nor commission NHS services.
It is clear from these amendments that the Opposition are harking back to a centralist, top-down approach. They sometimes say that they want clinical commissioners, but these amendments contradict that. They would not create a system of clear responsibility but instead one where Richmond House was always right. That model has been tried to the point of exhaustion and has been found wanting. In contrast, the Bill establishes a framework in which the Secretary of State no longer has the powers to provide or commission NHS services. Instead, those functions are conferred on other bodies in the system. An amendment to Clause 1 to impose a duty on the Secretary of State to provide services—or a duty to exercise his functions so as to provide them—is simply not consistent with that framework.
When this issue has been debated previously, one of the main arguments against losing the duty to provide was that it would result in reduced accountability to Parliament for provision. Although that has never been our intention, we have, as I said, tabled amendments to put beyond doubt the matter of ministerial accountability. Given that the Secretary of State does not provide services directly, and that the amendments we will debate shortly clarify beyond doubt the Secretary of State’s continued accountability to Parliament, it is not clear what an amendment to reinstate the duty to provide would achieve in practice.
If these amendments are about ensuring that the Secretary of State takes the steps required to secure the proper provision of NHS services, I simply reassure the noble Baroness that the Bill already does this. It requires the Secretary of State to,
“exercise the functions conferred by this Act so as to secure that services are provided”.
That is a strong and onerous duty, sufficient to ensure that the Secretary of State discharges his responsibility for the NHS.
In explaining these amendments, the noble Baroness repeated her call for the Bill to be withdrawn on the grounds that nobody supports it. I acknowledge that there are opponents of the Bill but she must also acknowledge that many in the medical community and in the wider public support our reform programme. We know that clearly from the listening exercise last year when many thousands of people contributed their views. Those views about the principles of what we are trying to achieve came through loud and clear. In the main, the concerns revolved around implementation. We believe that we have addressed those concerns in amendments to the Bill and in other announcements that we have made that are non-legislative in nature. We continue to believe that our plans for modernisation are essential if we are to put the NHS on a sustainable long-term footing. I will explain a few ways in which that is true, and will try to do so in clear, layman’s language without resorting to departmental technical speak.
Without the Bill, Ministers would remain free to continue to micromanage the NHS. There would be no legally enforceable duties to tackle health inequalities as the Bill introduces such duties for the first time in this country. There would be no legally enforceable duties on quality improvement because it embeds quality improvement throughout the system. There would be no duties on NHS organisations to involve patients in decisions about their care. Failing organisations would continue to be propped up using taxpayers’ money—the Bill tackles that problem in a creative way. Governments would be able to prioritise the private sector over the NHS—the Bill ensures that such behaviour is prohibited. Patients would continue to lack the means to hold the NHS to account because the Bill gives patients real power by establishing HealthWatch so that the interests of patients and the public can be championed throughout the NHS. Withdrawing the Bill would cause disruption and chaos at a time that the NHS most needs certainty about the future. As has been said today, the NHS is already in a state of change. That cannot be sustained indefinitely because it puts additional strain on management capacity and creates additional cost.
Lord Lester of Herne Hill
Does my noble friend agree that one of the vices in the amendment is that it would encourage judicial review proceedings and legal uncertainty? I say that as somebody who has taken advantage of the old wording to bring successful judicial review proceedings in Northern Ireland. The advantage of what we now have in the Bill is that it will not place judges in the position of seeking to run the health service, instead of Parliament, Ministers and the health authorities themselves.
Earl Howe
I defer completely to my noble friend, who is right to point out that one thing that we wish to avoid is a charter for a legal action and judicial review. I believe that we have avoided that because of the way in which accountability is now described in the Bill—or will shortly be described, when the amendments are passed. It is accountability primarily through the Secretary of State to Parliament. I thank the noble Lord for his observations.
Baroness Jay of Paddington
The Minister has clarified the difficulty that I was in, partly because of the intervention from the noble Lord, Lord Lester, but also because of what the noble Baroness, Lady Williams, said. As I understand it, all their remarks are posited on the basis that the subsequent amendment, Amendment 5, will be accepted by the House. When they refer to the terms of the Bill, they are referring to the Bill as it now stands and not as it will, I hope, be amended in the conclusion of our next debate.
Earl Howe
I am grateful to the noble Baroness, who is of course quite right.
I have been handed a note which says that when I said that there would be no legally enforceable duties on quality improvement, I should have clarified that that would have a follow-on. I should have said, “across the NHS system”.
The noble Baroness, Lady Thornton, referred to potential privilege responses from the Commons. My noble friend the Leader of the House made a Written Statement last Thursday about the financial privilege of the House of Commons in which he drew attention to a paper by the Clerk of the Parliaments, available in the Library. I think that questions about procedure may be best directed to my noble friend, but I shall do my best to assist. The Clerk of the Parliaments makes it clear in his paper that,
“until the Commons asserts its privilege, the Lords is fully entitled to debate and agree to amendments with privilege implications”.
That is what we should do. I would much regret it if the House thought that I was trying to restrict its role of revision. The Marshalled List sets out more than 100 amendments in my name, tabled in response to debate in Committee, and if the House agrees to those amendments I can assure noble Lords that the Government will encourage the other place to accept them.
The essence of the noble Baroness’s question is about privilege reasons for the Commons rejecting amendments proposed by this House, and on that I can say two things. First, any amendment with implications for public expenditure might involve privilege, but that is a matter for the Commons alone. Decisions on financial privilege are for the Speaker of the Commons on advice from the Clerks of that House. If the Commons reject a Lords amendment in which the Speaker has determined that privilege is engaged, the only reason that it can send this House is a privilege reason. There is no discretion.
Secondly, this debate is by its nature premature. I hope that our debate and dialogue will lead to this Bill being sent to the Commons in a form that that House will accept. Until we see how Report unfolds, it is too early to speculate on the reaction from the Commons. One cannot have a reply to a question until the question has been asked.
Baroness Thornton
My question was actually about the Government’s intentions. That was a very enlightening and helpful remark about privilege. The Speaker of the Commons will not presumably, by and large, take a view on privilege unless the Government ask him to. So my question was about the Government’s intention on this matter.
Earl Howe
I have taken advice on this, and I believe that what I am about to say will not mislead the House as I have been given this advice on authority. It is not for the Government to do anything; it is not within our power to do anything. The noble Lord, Lord Martin, who spoke last week on this matter, is par excellence an authority on this. A view is taken by the Clerks in another place on the amendments passed in this House as to whether privilege is engaged. The Speaker is then advised. The Government have no role in that process at all; it is a Commons privilege, not the Government’s privilege.
I hope that what I have said will persuade your Lordships that the course down which the Opposition would wish to take us is the wrong one. The Bill, once amended—if that is your Lordships’ wish—through the amendments that have been jointly agreed on a cross-party basis, will therefore be fit for purpose in clarifying beyond peradventure the Secretary of State’s accountability for the health service and the exercise of his powers. With that, I hope that the noble Baroness, Lady Thornton, will feel able to withdraw her amendment.
Baroness Thornton
I thank the Minister for that response. I made it clear in my opening remarks that I would not seek to push the amendments to a Division, although the remarks of the noble Baroness, Lady Williams, and the Minister made me wonder whether I ought to do so, because certain things that were said were not justified.
First, the noble Earl took us through a list of things that without the Bill would not be happening. On almost every single one, I thought that without the Bill you could do all those things. You do not actually need this Bill to do most of the things that the noble Earl listed as being desirable objectives. I am sure that we would agree about most of them being desirable objectives.
The noble Earl mentioned the listening exercise as being proof that this is not the unloved Bill that I would suggest it is. Only yesterday, a former special adviser to Downing Street said that the listening exercise was a tactic as part of managing the Bill. Frankly, I was horrified by that. If I had been Professor Steve Field or one of the 40-odd people who, with every good intention of doing a public service unpaid, gave their time to take part in that listening exercise, I would think that it was really shocking. So I think that the noble Earl should be careful about praying the listening exercise in aid in explaining how loved or unloved this Bill is.
It is time that we moved on. I intend to reserve my praise for the next debate and leave my criticisms in this debate. I intend to withdraw my amendment, even if the noble Earl will not withdraw the Bill.
“( ) The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England.”
Earl Howe
My Lords, I beg to move Amendment 5. As noble Lords will be aware, and as I stated during our discussion on the previous group of amendments, a number of concerns were raised in Committee over the clauses relating to the Secretary of State’s accountability for the health service. Since our collective discussion in November to withdraw amendments on this issue, pending a period of discussion and reflection, I have been meeting noble Lords to understand their concerns. Alongside the conversations that I have had with Peers, both individually and in groups, we have held two all-Peers seminars to try to reach consensus on what changes might be made to bring clarity. I am very grateful to all those who invested time and effort in this matter, which I know so many are passionate about.
I would particularly like to thank the noble Baroness, Lady Jay, and her colleagues on the Constitution Committee, who articulated their concerns about ministerial accountability so coherently in their two reports and proposed amendments. I believe, as had been suggested already, that the process that we have gone through has revealed the House of Lords at its best—working together to improve the Bill and achieve common ground. This amendment deals with the overarching accountability of Ministers for the health service, as set out in Clause 1. At this stage, we are taking this amendment on its own, but there are further amendments on related themes to follow. We should perhaps look at this amendment in that context.
However, I think I am right in saying that Clause 1 has attracted the most attention from Peers, and quite rightly so. It gives the Secretary of State a duty to,
“continue the promotion in England of a comprehensive health service”,
wording that can be traced back to the original 1946 NHS Act. Amendment 5 makes it clear that the Secretary of State will retain ministerial responsibility to Parliament for the health service. It has been this question of ministerial responsibility that has been such a cause of concern, and I am sincerely grateful to the noble Baroness and the Constitution Committee for drafting this amendment which, I hope, should serve to put everyone’s minds at rest on this issue.
Noble Lords will recall the original suggestion made by my noble and learned friend Lord Mackay, which used “ultimate responsibility to Parliament”. I should explain that we have gone with the formulation “ministerial responsibility to Parliament” because it more clearly refers to the constitutional principle of ministerial responsibility. That is to say: Ministers are responsible, accountable and answerable to Parliament for their policies, decisions and actions—and, indeed, those of their departments. The principle is recognised by Parliament and the courts, and, as the Constitution Committee notes, in the Ministerial Code. The amendment reflects the position that as a result of the principle and the duties and powers imposed by NHS legislation, the Secretary of State for Health is responsible and accountable to Parliament for the health service in England, even if he or his department do not directly provide or manage NHS services. It has never in fact been the Government’s intention to diminish ministerial responsibility to Parliament, so I can offer my wholehearted endorsement of and support for this amendment. I hope that your Lordships will feel able to do so as well.
Baroness Jay of Paddington
My Lords, I am grateful to the Minister for the way in which he introduced this amendment because, as he graciously expressed, this is not really a government amendment but an amendment by the Constitution Committee, which it invites your Lordships to agree. Of course, with a government Minister at the head of those supporting the amendment, I hope that will in itself be unarguable. It is right that the Constitution Committee’s position should be explained a little more in the context of this first amendment in relation to the Secretary of State's responsibilities, and I am glad that it has been put in a group on its own. It is a very significant amendment, and not just because it alters fundamentally the expression of the Secretary of State's responsibilities from the original Bill. It is also significant because of the process by which it has been reached—the Minister has already alluded to this, and I certainly express my enthusiasm for the process—and in which the House has undertaken this work.
The terms of the amendment are simple but very powerful:
“The Secretary of State retains ministerial responsibility to Parliament for the provision”—
that is always the difficult word—
“of the health service in England”.
It is simple but powerful because, frankly, so is the concept of ministerial responsibility, although we argue about it all the time. It is a basic concept which, as the Minister has said, has been expressed in all NHS legislation, and quite rightly in my view, since the first Act 60 years ago. Without wishing to appear to give a civics lesson to the House, it is worth saying that the Constitution Committee has agreed that, in its terms, individual ministerial responsibility means that Ministers must be accountable and answerable to Parliament for their—and their departments’ and agencies’—policies, decisions and actions. I think that is widely accepted. There is no constitutional distinction between ministerial responsibility, accountability and answerability; they are all aspects of the same constitutional fact.
This Bill was worrying, because it was the first in which there was not an explicit provision on political and legal accountability. The Constitution Committee, as the noble Earl said, raised serious concerns about this in the initial report that we gave to the House before Second Reading. There we said that the Bill, if enacted in its present form, risks,
“diluting the Government's constitutional responsibilities”,
for the NHS. It is worth reminding your Lordships that those responsibilities which the Minister should retain embrace the accountability to Parliament for the vast public expenditure that the NHS undertakes, and the provision of its multitude of services.
Earl Howe
My Lords, I think that it only remains for me to thank noble Lords who have spoken in this debate. I listened with care and respect to the noble Baronesses, Lady Pitkeathley and Lady Young, as I always do. I understand their concerns. I think that some of them are misplaced but they are right that any transition brings with it uncertainty and a certain amount of disruption. That is regrettable but all I can say is that the picture painted by the noble Baroness, Lady Young, is not representative of the whole of the NHS. She is right; there are difficulties. However, we are very confident that they can be resolved in short order.
The noble Baroness, Lady Thornton, asked me whether the Secretary of State believes that this amendment makes a difference. Yes, he does because he recognised that this House perceived a lack of clarity in the Bill. He welcomes the fact that this situation has been resolved by means of consensus. Therefore, I reassure her on that point. I thank all noble Lords who have spoken so supportively in favour of this amendment, especially the noble Baroness, Lady Jay, whose work, along with that of her committee, proved so indispensable to the consensus to which I have just referred. I thank the noble Lord, Lord Owen, for all that he said. I thank the noble Lord, Lord Laming, for his contribution not just today but in his role of chairing the all-Peer seminars that brought us to this conclusion. I thank my noble friends Lord Newton and Lord Mawhinney and the noble Baroness, Lady Williams, for their wise and generous observations; and, indeed, I thank the noble Baroness, Lady Thornton, once again. I commend the amendment.
Lord Hunt of Kings Heath
My Lords, the government amendments on health inequalities are welcome. I take this opportunity to ask the noble Earl about clinical commissioning groups. Has he given further consideration to the links between health and well-being boards and clinical commissioning groups? He will recall the debate in Committee, when what I thought was a persuasive argument was made that to ensure that the links between clinical commissioning groups and local authorities taking on public health responsibilities were as strong as possible, it would be a good idea if a local authority nominee from the principal local authority served on the board of the clinical commissioning group.
My noble friend Lord Harris suggests in his comments about population coverage by clinical commissioning groups that there will be a grammar school-type impact, a creaming off of patients by some clinical commissioning groups so that the remainder will be left in other clinical commissioning groups. There will be areas of a city or locality where the health inequalities and morbidity and fatality ratios will cause a great deal of concern. It would be good to hear some assessment of that from the noble Earl. We have seen mapping of clinical commissioning groups in different parts of the country and they look weird and wonderful. They are not aligned to electoral wards and it will be very difficult to plan sensible provision of services because there is no geographical alignment.
I also ask the noble Earl, Lord Howe, to follow on from the remarks of the noble Baroness, Lady Finlay. We hear very little about primary care performance in our debate, but when I think back to the original speeches made by Mr Lansley, the whole purpose of the reforms is about GP performance. The argument is that GPs are responsible for most expenditure through referrals or prescribing, and that if you give them the budget, they will therefore be much more responsible in their behaviour. We have yet to be told how a clinical commissioning group will influence the behaviour of GPs within it. I know that that is a concern among the leaders of clinical commissioning groups.
If, for example, a clinical commissioning group has reached an agreement with providers, NHS trusts and NHS foundation trusts, on a shared risk approach to demand management—which I hope will be the outcome of most of these agreements—what on earth do you do if some GPs do not exercise responsibility over their referral or prescribing performance? We know that the variation in quality among GPs is very wide. What are the levers that will bring poorly performing GPs to the table? The leverage that clinical commissioning groups have is very limited. On balance, I think it would have been better if they had had the contracts of GPs. I know that there is an issue about Chinese walls and conflicts of interest, but the fact is that the contracts of GPs will be with the branch office of the national Commissioning Board. Therefore, the levers that the clinical commissioning groups have are likely to be very limited.
Then we come to the issue of, for example, prostate cancer. I very much agree with and support my noble friend Lady Royall on the need for quality standards and I hope that NICE will get a move on in relation to this. However, as my noble friend Lord Harris said, underpinning an argument about prostate cancer is the question of how you make such a standard work at the local level. If there is to be a quality standard, I doubt very much whether it will simply be confined to what an NHS hospital, a clinical commissioning group or a GP is expected to do. The quality standard will look at an integrated approach at the local level which will straddle various features of the architecture of the NHS locally. It might even have some regional aspects too where an input needs to be made.
Therefore, the question is: who on earth at the local level is supposed to sign that off? Who is going to take the leadership role? The clinical commissioning groups will be far too small to do that within a locality, so either they will come together and agree a strategy that will cover a sufficiently large population or, as I suspect, the national Commissioning Board will have to do it itself. I think that we will come on to these debates when we deal with the role of the national Commissioning Board. We have all been highly entertained by the paper produced by Sir David Nicholson showing the less bureaucratic approach that the Government have adopted in relation to the health service with the various layers of bureaucracy that are being brought in. However, I am still left completely clueless about who at that sub-regional level, where so many critical decisions have to be made, is going to take responsibility. We know that in relation to prostate cancer much more needs to be done.
The noble Earl will remember the debates that we had on prostate cancer 10 years ago. He will remember the controversy over testing and how noble Lords were very keen to put their point of view across. That has rather gone away and I think that it has been replaced by a much more informed debate about a cancer on which we know we could do very much more and on which we know there has to be education in the public domain.
I very much support my noble friend in what she is seeking to do but it also raises the issue that the noble Earl’s amendments touch on—that is, the architecture surrounding how a quality standard is implemented in the future, assuming that NICE is able to produce that standard as quickly as possible.
Earl Howe
My Lords, I am grateful to noble Lords for some very valuable contributions to this debate, which has ranged quite widely. I think that the first thing we can all do is agree on the importance of reducing health inequalities and developing NICE quality standards, which was where we began with the noble Baroness, Lady Royall. She is right that the Bill presents a major opportunity to drive up quality in the NHS, not least through the development of NICE quality standards.
The noble Baroness expressed her concern about the time that it is likely to take for this library of quality standards to be rolled out. I completely understand her desire to have NICE working quickly and effectively in producing quality standards. Against that, I simply say that we have to balance the need for speed with the need to produce standards of a high quality. We have already set NICE a challenging programme to produce the quality standards and we have to recognise that, if it is to do the job well, it cannot be done in a hurry.
However, we continue to believe that the programme is ideally placed to deliver a steady stream of quality standards over the agreed timescales. That will lead to a comprehensive library of quality standards, to which she referred, within five years. Of course, I understand that that timescale is disappointing. However, I simply say that, while the quality standard for prostate cancer, in particular, is clearly important, there are many things that we can do, and are doing, to improve the care of cancer patients in the NHS, and we have recently debated some of those in your Lordships’ House.
Lord Harris of Haringey
I just want to make sure that I understand the point that the Minister is making. Let us compare two localities in London. I mentioned Tottenham, so compare that with, say, the residents of Totteridge. They are very different socioeconomic groupings with very different health outcomes. What is the mechanism for addressing health inequalities between Tottenham and Totteridge? Who will be responsible for addressing inequalities between areas that are just a few miles apart but which have very different characteristics and very different social outcomes? The health and well-being boards are borough-based. Tottenham is in the London Borough of Haringey and Totteridge is in the London Borough of Barnet—neighbouring boroughs that are very different in composition. What will be the overarching structure that addresses those inequalities?
Earl Howe
Localism lies at the heart of our approach to these issues. Although I have no doubt that conversations and comparative analyses will take place between different health and well-being boards and different local authorities, in the end it is the responsibility of health and well-being boards to look to their catchments. As I said, the outcomes that are published, both in terms of the NHS performance and public health and social care, will in themselves incentivise improvement, if the local authority and the health and well-being board work together as they should. This is a joint enterprise between public health, social care and the NHS.
We shall no doubt experience the effect of comparative work between local authorities once the early implementer groups have bedded down and begun their work. Both the board, however, and the Secretary of State will have duties in relation to inequalities. They overarch everything that happens and I suggest that that will ensure that a system-wide and strategic approach is taken, for example, through setting objectives in the board’s mandate in relation to inequalities. These could feed down very easily to CCGs through commissioning guidance issued by the board. I hope that that gives the noble Lord a summary, or at least a flavour, of how we envisage this working.
Lord Harris of Haringey
May I just clarify? Will there be nothing between the board at national level? Will it look right across the country and say, “We will address these inequalities”? Will there be nothing, for example, at the London level, to address inequalities between different parts of London or will it simply be driven nationally? That is a recipe for not necessarily making the best decisions in particular areas.
Earl Howe
The noble Lord will know, because the NHS Commissioning Board authority has published its proposals, that the board will be represented sectorally. There will be field forces in all parts of the country. My vision of this, and that of Sir David Nicholson is that in the areas in which the board operates it will take a view across a region and look at how outcomes vary between local authority areas. The board will be very powerfully placed to influence the kinds of inequalities that the noble Lord has spoken of. It is important for noble Lords to understand that the board will not be a collection of people sitting in Leeds. The majority of its staff will be a field force. I hope that that is helpful.
Lord Rea
Does the noble Lord accept that to smooth out inequalities costs money? Therefore, the CCG in Tottenham should get more per capita than the CCG in Totteridge. At the moment allocation is made according to an index that takes deprivation into account to some extent, but not enough. How will that be administered under the new system?
Earl Howe
The advisory committee for resource allocation which exists at the moment will advise on the allocation of resources according to a very detailed formula. That applies to the NHS and public health. There will be a separate ring-fenced budget that specifically takes account of deprivation. That budget will be held by Public Health England and passed down to local authorities to use at a local level. We are very clear that deprivation and health inequalities must be reflected in terms of the budgets that CCGs and local authorities receive. I hope that I can reassure the noble Lord on that point.
Government Amendments 68, 112 and 144 set out a requirement for the Secretary of State, the board and CCGs to report annually on their work to reduce health inequalities. We had a great deal of helpful and interesting discussion on reducing health inequalities in Committee and as a result of those discussions, we felt that it was important to bring forward three amendments on the reporting requirements. Amendment 144 requires the Secretary of State to include in his annual report an assessment of how effectively he has carried out these duties, meaning that Parliament will hold him to account. I have tabled parallel government Amendments 68 and 112, which require the commissioning board and CCGs to report on how effectively they have fulfilled their inequality duties. We believe that this will ensure that our objectives to reduce health inequalities and improve quality of care are embedded throughout the system from top to bottom. I hope that noble Lords can support those amendments when I move them.
Baroness Morgan of Drefelin
I wonder whether the Minister could clarify something for me. I very much support the line of argument around the amendments. However, I am interested to know whether, if the Secretary of State has a duty to report back on the exercise of these duties, does that say anything about the importance of reporting on his other duties? Is a hierarchy being created? That is a point for clarification.
Earl Howe
There is no hierarchy but the Secretary of State will be bound to report to Parliament and, in doing so, he must show that he has exercised his functions in a way that fulfil his statutory duties under the Bill. Parliament will no doubt hold him to account for having done so. He must demonstrate across the piece that he has had regard to those duties.
Baroness Royall of Blaisdon
My Lords, I am grateful to the noble Earl, Lord Howe, for his reply, and for the support for my amendments around the Chamber. I have a couple of comments. First, in terms of quality standards, like the noble Baroness, Lady Finlay, I wonder about a GP’s ability to fulfil his duties both as a clinician and a commissioner. Currently GPs often find diagnosis quite difficult and I am concerned about them having to commission as well as diagnose. If they do not fulfil their tasks as both clinicians and commissioners, the patients will suffer.
My noble friends Lord Hunt and Lord Harris asked who takes the leadership and responsibility for ensuring that quality standards are adhered to when they are brought forward by NICE. The Minister said that localism is one of the answers. I find that a frightening prospect rather than a reassuring one. I think it is a recipe for chaos rather than quality, but perhaps that is a personal view.
I pay huge tribute to NICE, which I think does excellent work, but I recognise that it is very stretched. It has immense burdens and responsibilities. I hope that this very short but excellent debate will be a catalyst for swifter action in terms of quality standards, but I recognise that there is always a balance to be struck between quality and speed. However, in five years, an awful lot of people can die while waiting for quality standards. Having said that, I am grateful to the Minister for his response, and I beg leave to withdraw the amendment.
Health and Social Care Bill
Earl Howe Excerpts(13 years, 5 months ago)
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Baroness Thornton
My Lords, I am very pleased to put my name to this amendment and I congratulate the noble Lord, Lord Hennessy, on his tact and diplomacy in getting us to this point, and in getting agreement to have the constitution mentioned in the Bill, and in such a prominent part of it. In preparing a few supportive remarks, I had a look at the constitution because I was working for my noble friend Lord Darzi in a similar role to the one the noble Baroness, Lady Northover, has—as his support and his Whip—when we were working towards the constitution, and when it was discussed and adopted across government and Parliament.
The importance of having it in the Bill is there in various key parts of the constitution, which are worth mentioning on the record here because we need to remember them as we move forward to discuss this Bill in all its glory in the next five or six weeks, or however long it takes us. The constitution says:
“The NHS is founded on a common set of principles and values that bind together the communities and people it serves—patients and public—and the staff who work for it”.
It goes on to say that it,
“establishes the principles and values of the NHS in England. It sets out rights … and pledges which the NHS is committed to achieve”.
It says:
“All NHS bodies and private and third sector providers supplying NHS services are required by law to take account of this Constitution in their decisions and actions”.
That is a very important part of why this needs to be in the Bill.
The final part which I would like to draw to your Lordships’ attention is point 6 of the guiding principles in the constitution, which is a commitment,
“to providing best value for taxpayers’ money and the most effective, fair and sustainable use of finite resources. Public funds for healthcare will be devoted solely to the benefit of the people that the NHS serves”.
That is exactly right. It is not the shareholders of companies and not individuals who might seek to make a profit but the people whom the NHS serves, and the taxpayer.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I am very grateful to the noble Lord, Lord Hennessy, for tabling these important amendments and for the eloquent way in which he introduced them. As he said, they seek to require the Secretary of State to have regard to the NHS constitution when exercising his functions in relation to the health service. I say to him in all sincerity that I very much welcome his contribution throughout this debate. I identify myself entirely with the enthusiastic remarks that he addressed towards the constitution itself, which is a most succinct and inspiring document, and I agree with him that we have reached a very workable and satisfactory outcome to the question that he originally posed to me and to the House.
I fully support these amendments. It is right that we continue our commitment to the principles set out in the NHS constitution. I hope that these amendments together provide noble Lords with reassurance of the Government’s continued commitment to the core principles and values to which the noble Lord and the noble Baroness have referred. I commend them to the House.
Lord Hennessy of Nympsfield
I am grateful to the noble Baroness, Lady Thornton, and the noble Earl, Lord Howe, for their kind remarks. Earlier, a noble Lord—I forget who—thought we were mired in the treacle of consensus. All I can say is: long may we be stuck in this particular pot of treacle.
Lord Northbourne
My Lords, I intervene briefly to support the noble Baroness, Lady Finlay, because I believe that there will be real problems. The immense complexity of the Bill will lead to tremendous delays and a great deal of misunderstanding among people who feel, rightly or wrongly, that they have failed to get the service or treatment to which they are entitled. I hope the Minister can say something about the possibility of some sort of short-circuit response, whereby people who feel that they have been ill treated can, if necessary, have some kind of help and encouragement to make contact with the right people to resolve their problem.
Earl Howe
My Lords, this has been a very useful short debate. As the noble Baroness, Lady Finlay, said, her amendment seeks to provide appropriate recourse for individuals who believe that the commissioning of services for either their condition or their locality is inequitable. It would insert a new paragraph in the Secretary of State’s inequality duties. The noble Baroness spoke with considerable persuasiveness on this amendment but I will suggest to her that it is unnecessary and explain why.
The Bill and existing legislation already provide a number of mechanisms for exactly the kind of recourse that the noble Baroness seeks. She foresaw that I would talk about local healthwatch and I will. Local healthwatch, which will replace local involvement networks from April 2013, will provide local people with the opportunity to have their views on their needs and experiences made known to commissioners and providers of health and social care services and others. One of the roles of local healthwatch will be to make reports and recommendations about how local care services could or ought to be improved. To ensure that these have real clout, the Bill requires the people who receive such reports and recommendations, such as the NHS Commissioning Board, to have regard to them in exercising any function relating to care services.
We then have a further avenue for recourse because HealthWatch England will also provide the NHS Commissioning Board, among others, with the views of people on their needs for, and experiences of, health and social care services and on the views of local healthwatch and others on the standard of provision of services and on whether or how the standard could or should be improved. Where the board is provided with advice, it must inform HealthWatch England of its response, or proposed response, to the advice.
However, if an individual feels that a CCG, or the board, or any other body in the future health service, has neglected their responsibility with regard to tackling inequalities, they can do several things. They may raise the matter directly with the organisation itself, specifically by pursuing a complaint through the NHS complaints procedure. Where not satisfied with the response at a local level, they may refer the matter to the Health Service Ombudsman. As a last resort—I emphasise “last resort” because I do not want noble Lords to feel that this process would be run of the mill—as the NHS constitution makes clear, should an individual feel that local resolution has not been possible, and in the event that the Secretary of State or an NHS body is failing to comply with its legal duties, there would be a right to seek legal redress by means of a claim for judicial review.
There is a central issue here. CCGs will be under a statutory obligation to arrange for provision of care to meet the reasonable requirements of the people for whom they have responsibility. The local authority’s health and well-being board, the membership of which will include the CCG or CCGs, will assess local population needs, and will develop a strategy to meet those needs. Local healthwatch will also be a member of that board and be able to input into the strategy. There will be a duty on the CCG, the local authority and the NHS Commissioning Board to have regard to the relevant assessment and strategy when exercising functions. This would include the function of preparing commissioning plans. The NHS Commissioning Board will have a duty to perform an annual assessment of how well each CCG has fulfilled its duties in the previous financial year. This will include, in particular, an assessment of how well it has taken account of assessments and strategies under Section 116B of the Local Government and Public Involvement in Health Act 2007.
My noble friend Lord Willis rightly said that we should expect that there will be differences between CCGs in their commissioning policies. Of course he is right, because each CCG will be bound to formulate policies for commissioning that reflect the needs of their constituent populations. I do not think that we should shy away from variation that is considered and that genuinely reflects that diversity in population. What we do not want, clearly, is postcode and random variations which have no relationship to the needs and requirements of local patients.
We should not forget either that the Health Service Commissioner has power to investigate complaints that are not resolved locally and to make recommendations as a result of those investigations. It is very rare for those recommendations not to be implemented but, in extremis—and this is not often done—the Health Service Commissioner is able to lay a report before Parliament.
We believe, therefore, that there is already a clear system of recourse where patients are concerned that an equitable service is not being commissioned either for their condition or their locality, and the Bill strengthens the ability of patients to make their views heard. The Bill also introduces, for the first time ever, duties on the Secretary of State and commissioners to have regard to the need to reduce inequalities, and amendments we have tabled would ensure that they would have to report on how they had fulfilled those duties.
With those remarks in the round, I hope that the noble Baroness is perhaps more reassured than she was at the outset of the debate, and that she will be willing to withdraw the amendment.
Baroness Jolly
Before the Minister sits down, will he clarify whether the same processes that he has just outlined would apply to people in receipt of specialist services that are commissioned by the NHS Commissioning Board, not by local CCGs?
Earl Howe
My Lords, where a service is commissioned by the NHS Commissioning Board—and let us imagine that it is a specialised service—the patient’s recourse should be to the board. However, of course, the board will be represented at a local level rather than only centrally, and we expect that the board will be represented in health and well-being boards and in the discussions that take place there. It would therefore be possible for a patient to address their concerns, in the first instance, to the health and well-being board, which would have the ability and power to communicate directly with the NHS Commissioning Board, if that was felt to be appropriate. However, as I said, the patient would be able to go straight to the board in those circumstances.
Lord Harris of Haringey
I appreciate that this is very bad manners, given that I missed most of the debate. The Minister has just said—although perhaps I misinterpreted him—that the NHS Commissioning Board will have a representative on every local health and well-being board. If so, how will those individuals be known or accountable? Is that not the most extraordinary bureaucracy? He seems to have made a most extraordinary statement.
Earl Howe
My Lords, we are at Report stage and I hope that the noble Lord will forgive me if I do not reply at length. The point I was seeking to make was not about representation on the board but involvement in the health and well-being board’s wider deliberations. It is entirely open to a health and well-being board to invite a member of the Commissioning Board to be a permanent member, but I am not saying that we are prescribing that.
Baroness Finlay of Llandaff
Perhaps I may seek a tiny bit of clarification. The noble Earl spoke about the ombudsman as being almost a final port of call. Will the Minister confirm that the ombudsman would have the ability to investigate any organisation that is providing services to patients if it is in receipt of any NHS money whatever—not only if the care for an individual patient is commissioned from it but if it is receiving a block grant? In particular, I have in mind services such as those provided by hospices that may be receiving a block grant but do not have a specified contract per patient, and it may be that its patients want to question what is going on or that they have a concern that they wish to express and take further. Apart from the local complaints service within the organisation, it is really important that such patients have the same ability as other patients to have oversight through the ombudsman. I know that we have discussed this previously, and I am seeking clarification today on that issue.
Baroness Finlay of Llandaff
This is Report; I do not want to and fro. I will assume that that covers part-funding of care by charities as well as where care is fully funded by the NHS, so the same will apply.
I am grateful to the Minister for setting out the processes so clearly. It will be very helpful for patients, patient groups and charities in particular to see that laid out. For clarification, of course there will be local variation, different drug regimes and different ways of doing things. Equipoise is around the evidence base. The problem is where there is no provision or gross differences. That is where patient groups are concerned. I beg leave to withdraw the amendment.
Earl Howe
My Lords, I shall speak also to Amendments 9, 34, 53 and 54.
This group of amendments deals with the role of the Secretary of State in the health system. As noble Lords will be aware, our proposals for the NHS involve a fundamental shift in the balance of power away from politicians to patients themselves and to doctors and other professionals. Greater local autonomy is one of the key things that will enable local front-line services to become more responsive and innovative, in turn delivering greater efficiency and quality. The Bill makes clear that Ministers are responsible, not for direct operational management, but for overseeing and holding to account the national bodies in the system—backed by extensive powers of intervention in the event of significant failure.
The amendments we are debating here cover some of the key concerns raised by the Constitution Committee and Peers from across the House, as part of our wider discussions about ministerial accountability. These are the autonomy duties on the Secretary of State and the Commissioning Board and the link between the functions of clinical commissioning groups and the Secretary of State’s duty to promote the comprehensive health service. I will speak to each of the amendments tabled in my name, as well as the amendments tabled by the noble Baroness, Lady Thornton, which seek to remove the duties of autonomy on the NHS Commissioning Board and the Secretary of State.
Amendments 8 to 10 and 52 to 54 concern the autonomy duties placed on the Secretary of State and the board. Government Amendments 8 and 53 re-phrase the duties of autonomy on the Secretary of State and the Commissioning Board as duties to,
“have regard to the desirability of”,
autonomy, rather than duties to,
“act with a view to securing”,
such autonomy. The desirability of autonomy is therefore a factor for the Secretary of State and the board to consider when exercising their functions, rather than an end which they must seek to secure or promote. That should allay the fears of those who felt that the autonomy duties would prevent Ministers and the board intervening when they needed to.
In addition, changing to a duty to have regard necessarily means that the autonomy duties are subsidiary to the primary duties of the Secretary of State in Section 1 of the NHS Act: to promote the health service and to exercise his functions so as to secure the provision of services. To that extent, there is no further need to state that the duties of autonomy are “subject to” his Section 1 duties. However, government Amendments 9 and 54 make a further change to address this point. Rather than simply say that the autonomy duty is “subject to” the duty of promoting the comprehensive health service, they set out an explicit test, which makes clear that promoting the health service and securing the provision of services takes priority over autonomy, if there is ever a conflict between the duties. We think that this more clearly indicates how the Secretary of State and the board should resolve any tension between autonomy and the interests of the health service. I hope that noble Lords will agree that this provides helpful clarity and avoids any possible doubt.
Having said that I would address the amendments of the noble Baroness, Lady Thornton, I think that on reflection it would be discourteous of me to do so before she has introduced them. I shall therefore retain my remarks for later in the debate if she chooses to speak to those amendments. Meanwhile, I beg to move.
Lord Marks of Henley-on-Thames
My Lords, perhaps I may explain why I support the Government’s amendments on the autonomy clauses to which I have added my name—that is, Amendments 8, 9, 53 and 54.
The autonomy clauses were at the heart of the Government’s consultation with other noble Lords about the Secretary of State’s duties. During Committee and thereafter, at the very helpful discussions that we have had with my noble friend the Minister and with Peers across the House and, indeed, at the meeting of lawyers in which I took part with my noble and learned friend Lord Mackay, the noble and learned Baroness, Lady Scotland, and the lawyer advising your Lordships’ Constitution Committee, a substantial consensus was reached.
The concerns that we sought to address, which I regarded then and still regard as significant, were twofold. The first was that I believed there would be an inherent conflict between, on the one hand, the Secretary of State’s duties under Clause 1 to promote a comprehensive health service and to exercise his functions so as to secure services and, on the other hand, an unfettered duty to promote the autonomy of others. Secondly, if the Bill went unamended, there would exist a risk that a Secretary of State who was unwilling to intervene when things went wrong would be handed a justification for inaction. Such a hands-off Secretary of State could say, “I will not intervene because I am bound by my duty to promote autonomy”. In my view, with the Bill as it stands it would be very difficult to mount a successful legal challenge to such a failure to intervene.
Those were the two flaws in the Bill that the amendments were required to address. In relation to the board, the unamended Bill was flawed in exactly the same way as it is in relation to the Secretary of State.
The consultations that we held outside the Chamber during Committee led to the formulation of the Government’s amendments. As the Minister has pointed out, the effect of Amendments 8 and 53 is that the duty to act with a view to securing autonomy is reduced to a duty to have regard to the desirability of securing it. That is still subject to the limitation that the duty applies only so far as it is consistent with the interests of the health service. Therefore, what is currently an absolute duty to follow the autonomy line is to be replaced with a more nuanced and, I suggest, a more appropriate obligation to accord to the desirability of autonomy its proper place in the balancing exercise which all discretionary decision-making involves.
However, it is Amendments 9 and 54 that are decisive in addressing the concerns that we identified. Those two amendments provide that in the case of conflict between the Secretary of State’s or the board’s duties in relation to autonomy and their overarching duties under Clause 1 or the board’s overarching duties to secure the provision of services, those overarching duties will prevail. Those four amendments taken together fully address the two flaws of which I spoke and, I suggest, completely resolve the issues that they pose.
I turn now to the two amendments of the noble Baroness, Lady Thornton, directed at deleting the two autonomy clauses. Indeed, at the earlier stages of this process, I believed that the autonomy clauses could and should be deleted from the Bill. However, my view now is that with the problems that they presented having been addressed, we should support the government amendments and retain the two clauses as amended. Promoting autonomy is, in principle, to be welcomed as many who have spoken from all sides of the House both on Second Reading and in Committee have stressed. It is fundamental to the architecture of the Bill, and its great merit that it establishes a clear, decentralised structure for the health service. It is entirely welcome that future commissioning decisions, in particular, will be made locally to meet local needs, locally assessed.
Baroness Thornton
My Lords, when we were having our negotiations on this part—on which I was very happy to take part, even if I was regarded on some issues more as grit in the oyster than as co-operative help—they were about these issues, including autonomy. I have not changed my view. I shall speak to Amendments 10, 36 and 52.
We have no problem with the concept of autonomy. In principle our position is that autonomy has to be earned, and that it should be able to be taken away as well. That formed the principle and the basis on which the foundation trusts were established. However, we part company with the Government on their view of autonomy, and we are not completely convinced by the point made by the noble Lord, Lord Marks of Henley-on-Thames. On first sight of the Bill it seemed that autonomy was to be presumed and that each part of the service would be subject to less interference from the other parts in a way which could be detrimental. There would therefore be less performance management, and giving various bodies more powers with less need to sign off an agreement could mean that there would be less co-operation. Bodies acting in their own interests via a market process will mean that the motivation could be something that does not have the NHS and patients at its heart, and that there is less planning and system management, which sometimes actually is required. That is how you deal with things like postcode lotteries. You have to collect the information, compare it between different parts of the country experiencing different levels of deprivation, and then you have to take decisions which are about planning how to use your resources to ensure that people are not disadvantaged. So there are some very good reasons why planning and systems need to be in place.
The original briefing on the Bill stated that CCGs would not have PCTs or SHAs above them to performance manage them and that the commissioning bodies were not meant to performance manage but only to step in if there was a danger of failure. Again, that was the original briefing. It is not surprising that when we first discussed this in Committee there was general agreement across the House that the Bill would be better off without Clause 4 and what was then Clause 10 but is now Clause 12.
Since then the Constitution Committee has done what I think is really rather a good job. Although I was not deliriously happy about it, I was prepared to live with the draft produced by the committee. However, I do have problems with the draft that the noble Lord, Lord Marks, and the Minister have brought to the House. The provisions are not strong enough and some of the dangers that we originally expressed about problems with the autonomy clauses still exist. Furthermore, I take very much to heart the questions that both of my noble friends have raised. From different points of view they have asked pertinent questions and shown up the problems with the autonomy clauses. That is why, certainly in the process of our negotiations on Clause 4, I reserved my position to come to the House and explore whether what we actually wanted to do was delete it completely at this stage. On Clause 12, for the sake of consistency we feel that it should also be deleted. However, I have to say that because of the amendments that were accepted in the process of our negotiations, we feel less strongly about it.
I am not any more convinced as a result of this debate that our original position is not the right one—that if we cannot have the Constitution Committee’s version of Clause 4, we should delete the whole clause. Obviously I will listen to the Minister’s summing up of the debate, but at the moment I remain convinced that our position is indeed the correct one.
Earl Howe
My Lords, the noble Baroness, Lady Thornton, has spoken to Amendments 10 and 52, which, as she has said, would remove altogether the autonomy duties on the Secretary of State and the board. The noble Lord, Lord Harris, asked me what the problem is that the Bill is trying to solve in this regard. The duty is intended to promote a culture of fostering local autonomy rather than to outlaw specific practices; but without a focus on autonomy, it is possible that the mandate from the Secretary of State to the board or the framework document from the board to CCGs could impose disproportionately burdensome requirements on the system. The Government believe that local operational autonomy is essential to enable the health service to improve the outcomes of care for patients, provided that autonomy is within the framework of clear ministerial accountability.
The noble Baroness will be aware, because I have said it before, that we are aiming to free those closest to services to take decisions that are right for patients, free from central micromanagement by either the Department of Health or the NHS Commissioning Board. The amended duties, with the caveat that the interests of the health service take priority, achieve the right balance between autonomy and accountability. Without the clause, a future Secretary of State could choose to ignore one of the fundamental principles of the Bill, which is that those closest to patients are best placed to take clinical decisions. Without the clause, a future Secretary of State would be free to use his extensive powers to micromanage the NHS. The autonomy duty is a necessary part of the Bill, placing a duty on the Secretary of State to consider the expertise of those in the health service while recognising that there will be circumstances—
Lord Harris of Haringey
My Lords, the noble Earl seems to be saying that you cannot trust your own Secretary of State not to micromanage unless they are effectively forbidden from doing so. We have all talked of the Secretary of State’s accountability to Parliament. Surely the principle is that an accountable Secretary of State will be under enormous pressure from Parliament not to micromanage. If it is such a central issue of policy, Secretaries of State should simply be told not to do it, rather than requiring an Act of Parliament.
Earl Howe
I challenge the noble Lord to think of one Secretary of State, with the distinguished exception of my right honourable friend Mr Lansley, who has not succumbed to the temptation of micromanaging the NHS. No Secretary of State has been able to resist that temptation because, frankly, Parliament expects them to do it. That is what the system has expected of the Secretary of State. This is a burden on commissioners and clinicians, and, in the end, it does not well serve the interests of patients. It is all very well for the noble Lord to say, “Well, just stop”, but the system encourages it and the duties on the Secretary of State are there to encourage it.
Baroness Thornton
I cannot resist saying that the noble Earl’s right honourable friend Mr Lansley has dabbled and intervened on at least 12 occasions since the Bill started. He is on the record as saying on one of those occasions that certain managers should be sacked. Is the noble Earl saying that that will cease when this Bill is on the statute book?
Earl Howe
I am saying that the Secretary of State will not have the ability to micromanage the health service as he does at the moment. Whether the examples cited by the noble Baroness constitute micromanagement, if my right honourable friend is just expressing a view, I rather question.
The autonomy duty is a necessary part of the Bill because it places a duty on the Secretary of State to consider the expertise of those in the health service while recognising that there will be circumstances in which they must be able to step in to protect the interests of health service patients. That is the balance that we are trying to strike.
The noble Baroness, Lady Finlay, asked whether the autonomy duty would allow a clinical commissioning group to justify not commissioning the full range of services. The autonomy duty does not apply to CCGs; it is a requirement on the board and the Secretary of State. If a CCG chooses not to commission services and the board considers that this is not consistent with the interests of the health service, the board can intervene to direct a CCG. If the board fails to intervene when necessary, the Secretary of State has power to intervene. Finally, the Secretary of State can set out services which CCGs must commission, and he can do that in the standing rules if he considers it necessary. The CCG’s key duty is to arrange services as it considers necessary to meet all reasonable requirements of the population that it is responsible for, and the amendments do not change that in the slightest.
Baroness Jay of Paddington
The noble Lord may be surprised to hear me ask this question because, as he kindly said, I have been very determined that the provisions on accountability and parliamentary responsibility et cetera should be strengthened in the Bill. However, I listened to what my noble friend Lord Harris said about what he described as the “increasing tentacles” of these links between the various providers and the Secretary of State. Is the Minister not becoming concerned—as I would in his position—that all this new accountability and these links undermine the basic policy positions of the Bill? That is why, for example, my noble friend Lady Thornton suggested that it would be cleaner—if that is the word—to remove the whole of Clause 4 from the Bill. The complexities that are being set up and strengthened, as the Minister has agreed, make the whole thing so incredibly complicated and bureaucratic that the underlying policy positions are being totally distorted.
Earl Howe
I do not share that view at all. I do not think that the autonomy and accountability arrangements are as complex as the noble Baroness seems to suggest. Autonomy and accountability are two sides of the same coin; one confers autonomy in exchange for accountability. That is the model that we have adopted and the one that I would hope that Parliament would wish us to adopt, given that substantial sums of public money will be at the disposal of commissioners throughout the NHS. I therefore do not see that the metaphor of tentacles employed by the noble Lord, Lord Harris, is actually very appropriate. It implies that there is an organisation holding those in the health service in a grip. That will not be the case. The role of the board is to support local commissioners; it is to be there as a resource to promote guidance, supported by the quality standards that we were debating earlier. It is not—I repeat not—a replica of the kind of line management that the NHS has seen to date.
“( ) If, in the case of any exercise of functions, the Secretary of State considers that there is a conflict between the matters mentioned in subsection (1) and the discharge by the Secretary of State of the duties under section 1, the Secretary of State must give priority to the duties under that section.””
Earl Howe
My Lords, we come to an issue that exercised us on more than one occasion in Committee—the issue of health-related research and the use of research evidence in the health service. My noble friend Lord Willis and others urged me to look again at the Bill’s drafting, having expressed a concern that there was a need to strengthen the duties on the Secretary of State, the NHS Commissioning Board and CCGs to promote research, and the use in the health service of evidence obtained from research when exercising their functions.
Government Amendments 11, 60 and 103 are a response to that concern, and I hope that they will be welcome. The Government are absolutely committed to promoting research throughout the health service. By tightening the wording around the duties, we believe that the amendments send a powerful signal of that commitment. I beg to move.
Lord Hunt of Kings Heath
My Lords, from the opposition Benches we too welcome the amendments, which very much reflect the debate that we had in Committee on the importance of research. The Chief Medical Officer has paid a visit to Birmingham over the past two days; he gave a lecture at Birmingham University and visited my own trust to discuss research and the role of the NHS in it. My noble friend Lord Warner has put his finger on it: the question to the Minister is how we make sure that the NHS makes a sufficient contribution in future to the development and support of research. The Minister will know that the Chief Medical Officer is a passionate advocate of research and excellence in the NHS, and that is to be warmly welcomed.
There are some issues that need to be tackled. We have already heard about the issue of getting approval for clinical trials. We still have the problem, which has been with us for many years now, of local committees taking far too long and repeating work by other committees. I understand that there are some issues around the fact that, because foundation trusts are separate legal entities, they have to go through the process themselves, but if they join a clinical academic network some of that work can be reduced. I know that there is to be an announcement at, I think, the end of March about how these clinical networks are to be developed in the future. That is a very important way of enhancing research.
There is no question that the more we do in research, the better the outcomes not only for patients but for the UK’s reputation and economic well-being. Healthcare research is surely an area to which we need to give great priority. The noble Earl, Lord Howe, is of course responsible and we are very glad that he is leading this work. However, there is no doubt that, welcome though these amendments are, we should be given some assurance that the Government will now take them forward into the new situation with enthusiasm.
Earl Howe
My Lords, I begin by saying how much I agree with the remarks of the noble Lord, Lord Hunt. There are two very good reasons why research needs to be promoted in the NHS. The first is that it is for the good of patients. The other is that it is potentially for the good of UK plc. If we can attract investment in translational and clinical research to this country, it will be a major advance. The sad truth is that in recent years the UK has been slipping back in the international league table as a location for clinical research. The Government are determined to reverse that trend, as were the previous Government. We are trying our best to build on the foundations that the previous Government set.
Noble Lords have asked me to explain how the Secretary of State’s duty to promote research will work in practice. I shall try to do so in a few words. The Secretary of State will use the mandate to set priorities for the health service, based on his legal duties. One of those duties is to promote research within the health service, which is shared by the board and CCGs. What are the tools at the Secretary of State’s disposal? The National Institute for Health Research—the NIHR—which is headed by Professor Dame Sally Davies, provides transparent, competitive funding to support clinical and applied health research, the training and development of health researchers, systems to support research and the NHS infrastructure for research. The NIHR will continue to be part of the Department of Health. Its budget of £1 billion is held centrally by the department. The Chief Medical Officer will remain responsible for the NIHR and its budget.
The second main route that the Secretary of State uses, and will continue to use, to support research, is through the NHS. Since the NHS was established, its patient care budget has funded the patient care costs of patients who are taking part in research in the NHS, as set out in existing guidance. In the future, the NHS Commissioning Board and clinical commissioning groups will ensure that these costs continue to be met through these arrangements. The research costs of these studies are paid by the Government and charity research funders such as the Medical Research Council, the NIHR, Cancer Research UK and the Wellcome Trust. The NHS benefits greatly from the evidence provided by this research.
Let us not forget, too, that the Secretary of State will be held to account for what he does. He must report annually to Parliament on the performance of the health service. There is an expectation that he will report on how he has fulfilled his statutory duties.
That brings us to the duties placed on the board. In the document we published, Developing Clinical Commissioning Groups: Towards Authorisation, we set out the early thinking on the authorisation process. The document highlights that as part of the process CCGs will need to demonstrate how they will exercise important functions, such as the duty to promote research, and the NHS Commissioning Board will seek consistency in the way in which CCGs exercise these duties. Furthermore, a CCG’s commissioning plan, and its annual report, as well as the board’s annual assessment of the group’s performance, will cover the exercise of all the CCG’s functions, including the duty to promote research.
I hope that that has given noble Lords a clear outline of how this is all going to work. We regard these duties as extremely important. These amendments are extremely important, as my noble friend said. I am in no doubt that both the health service and its patients will be better off as a result of them.
Health: Children and Young People
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Baroness Hughes of Stretford
To ask Her Majesty’s Government what assessment they have made of the NHS Confederation report Children and Young People’s Health—Where Next? on the impact of the Health and Social Care Bill on children’s health.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, last month my right honourable friend Andrew Lansley launched the development of a health outcomes strategy for children and young people. An independent children and young people’s health outcomes forum will inform the development of this strategy and will consider the findings of this report alongside the wider views of children, young people, their families and the professionals who support them. It will report back to government by the summer.
Baroness Hughes of Stretford
I thank the Minister for his Answer. However, as this report makes clear, under government proposals up to six different commissioning bodies will have responsibility for commissioning child health or child public health services. Will the Minister tell the House how the Government will prevent the fragmentation of those services to ensure that children do not fall through the gaps, and whether the Government will therefore now consider placing a specific duty on all those commissioning bodies to improve outcomes and reduce inequalities in children’s and young people’s health?
Earl Howe
My Lords, the outcomes framework that I have just referred to should assist in the latter regard. I think the noble Baroness would agree that the system we have at the moment is not sufficiently joined-up, and in that sense does not adequately serve the needs of children. The approach we have taken to the proposed NHS reforms is to promote the importance of the integration of care and service provision for everyone, including children. We believe that strong partnerships at a local level, supported by professionals and local leaders, are the way forward, not top-down direction. The health and well-being board provides the forum for repositioning the joint strategic needs assessment into a truly joined-up strategy for local people.
Baroness Walmsley
I welcome what my noble friend the Minister has said about getting the views of children, but does he think that giving the commissioning of the excellent Healthy Child programme to local authorities is going to bring about the universal dissemination and delivery of that programme?
Earl Howe
The role of local authorities will be pivotal in this because it is at local-authority level that public health, social care, and indeed the discussions that will go on in the health and well-being board context will bring together policy in a way that informs NHS commissioning. I think that the approach we have taken has been widely welcomed, and we are absolutely determined that all sectors of society, including children, are included in these processes.
The Lord Bishop of Blackburn
My Lords, my northern diocese of Blackburn scores heavily on the deprivation indices for children’s health outcomes. Does the Minister share my concern that if phase 3 children’s centres become self-financing—as I understand they are to—and a children’s centre is deemed not viable, surely the health impact on the community and of course on the health services will be immense?
Earl Howe
The right reverend Prelate is right to draw attention to this issue. I simply say to him that the process that I have described at health and well-being board level is specifically designed to enable local people to determine the priorities that they see as most important for their area. It is right that these decisions are taken locally. I do not argue in the slightest with his analysis of the importance of these centres; I think they do a tremendous amount of good. I am sorry to hear that there may be some threat to the one that he mentioned, but I hope he will also tell me that discussions are going on at a local level to try to find a way forward that will suit the needs of local children.
Baroness Finlay of Llandaff
My Lords, given the emphasis on local-level decision-making, will the Minister explain how the Government intend to monitor fairness of access for children with less common conditions who at a local level may not appear to have a great need because there is a lack of awareness of the complex nature of their needs but whose outcomes can be greatly improved with highly specialised care?
Earl Howe
The noble Baroness raises an important point. She is right that it is all too easy for children or indeed any patient with a less common condition not to have their voices heard. That is why we are absolutely clear that local healthwatch should be configured in a way that reaches out to hard-to-reach groups. We are looking in particular at patients with specialised conditions to ensure that there is a mechanism for them to have their voices heard at the local level.
Baroness Massey of Darwen
My Lords, first I will say how much I welcome the new outcomes framework for children. Will the Minister say which proposed structures in the Health and Social Care Bill will benefit children, and who will have overall responsibility for child health?
Earl Howe
My Lords, the Secretary of State will retain ultimate accountability for children's health services. Under the Bill, as the noble Baroness knows, the functions will be conferred directly by Parliament on specific organisations. That will strengthen accountability. In answer to the first part of her question, the reform of the health system offers a real opportunity to address some of the well documented challenges that the current system presents. We are moving, through the Bill and through our reforms, to a system that will focus on promoting good health, which we see as important as delivering good care. Informed and expert knowledge will underpin the commissioning of integrated services, where we will measure success on improvements in the outcomes that are achieved. Treatment will be evidence-based and children will be involved in decisions about their care. All these things are embodied in the Bill.
The Countess of Mar
My Lords, recent research at Bristol indicated that as many as one in 100 children who are absent from school long-term suffers from CFS/ME. There is a dearth of centres for the treatment and diagnosis of children with CFS/ME. Does the Minister envisage this improving under the new proposals?
Earl Howe
My Lords, it is yet to be decided finally which services will be commissioned at a national level. I cannot give the noble Countess a definitive answer on where services for CFS/ME will be commissioned. However, we are sure that the arrangements will provide much better, more locally responsive ways of commissioning services generally. Whether clinical commissioning groups join together in commissioning services, whether lead commissioners do that or whether commissioning takes place at a higher level, we are clear that in all services this needs to improve.
Baroness Gardner of Parkes
Will the Minister tell me what the position is with accident and emergency services? We have all read in the papers that we should not get sick at weekends and how desperately people are treated in some hospitals. Are children’s services as adversely affected as those of adults, or are no figures kept on the difference? What does the Minister propose to do to increase cover, because misdiagnosis is a major worry in some cases?
Earl Howe
My Lords, accident and emergency services will be commissioned at a local level. I am afraid that I do not have in front of me detailed information on the split between adult and children's services in an emergency context. If I can get the information, I will be happy to write to my noble friend.
Baroness Thornton
My Lords, given that responsibility for commissioning for 0 to five year-olds will be at a national level, and commissioning for six to 19 year-olds will be the responsibility of local arrangements, as the noble Earl described, what are the risks for the continuing responsibility for safeguarding the health of the most vulnerable children in our society?
Earl Howe
My Lords, the two main outcomes frameworks relevant to this are the NHS and the public health outcomes frameworks, which we are trying to align as far as possible. They set a clear direction for the health and healthcare of children and young people, but there is more to do. As our data improve, we need to ensure that the outcomes measured are the ones that matter most to children and young people. That is why we are developing a health outcomes strategy for children. This will be the first example of an outcomes strategy as part of the health reforms model.
Baroness Tonge
My Lords, would the Minister remind us—in fact, more than that, would he make it absolutely clear—who will treat children whose families are not registered with a general practice?
Earl Howe
My Lords, as my noble friend knows, it will be the legal responsibility of clinical commissioning groups to commission care on behalf of all patients living in their geographic area, whether or not they are registered with a GP. That means that arrangements have to be made to ensure that those patients are treated when needed.
Tobacco
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Government take very seriously their obligations as a party to the Framework Convention on Tobacco Control. The convention encourages parties to take a comprehensive approach to tobacco control to improve public health. The United Kingdom is a recognised leader for tobacco control internationally. The Government’s tobacco control plan sets out a government-wide approach to tobacco control, as well as what will be done to support local authorities to reduce rates of tobacco use.
Lord Faulkner of Worcester
My Lords, the Minister will be aware that the reason that the United Kingdom Government and 173 other Governments have become parties to the WHO’s Framework Convention on Tobacco control is because the tobacco industry has had a uniquely malign influence on health policy in all countries where tobacco is sold. Does he agree that its record in the United Kingdom since the 1950s has consisted of first denying the link between tobacco smoking and ill health, then suppressing the results of its own research on the addictive properties of nicotine, then denying the harmful effects of second-hand smoke and now funding front organisations to oppose tobacco control legislation such as the point-of-sale restrictions, which I am delighted that the Government have embraced? Are not all these powerful reasons for sticking to the framework convention and ensuring that the tobacco industry has no influence whatever over the formulation of health policy relating to tobacco?
Earl Howe
My Lords, yes, the vested interests of the tobacco companies are well recognised. The Department of Health is careful to ensure that the Government’s obligations under the framework convention are met, including the treaty obligation to protect public health policies from the vested interests that he referred to. For example, I hasten to reassure him that the tobacco industry was not involved in the development of the Government’s tobacco control plan, which was published last year.
Lord Ribeiro
Can my noble friend outline what steps the Government are taking to reduce the promotional impact of tobacco packaging, particularly that which is targeted at vulnerable young girls?
Baroness Thornton
My Lords, it was as a direct result of the evidence of the underhand tactics of the tobacco industry that the UK very wisely adopted Article 5(3) of the Framework Convention on Tobacco Control. In 2008-09, the noble Earl’s noble friend Lady Northover successfully asked the then Secretary of State Alan Johnson to write to all his ministerial colleagues drawing attention to and outlining the importance of Article 5(3) and asking for their assurance that they were abiding by the article in their dealings with the tobacco industry. I invite the Minister to agree to ask his right honourable friend the Secretary of State to do the same with this Government.
Earl Howe
My Lords, I can reassure the noble Baroness that my right honourable friend the Secretary of State, and indeed all Ministers in the department, have had no direct dealings—or indeed indirect dealings—with the tobacco industry since coming to office. However, I am sure that the noble Baroness’s message will be very warmly received by my colleagues.
Baroness Hussein-Ece
Is my noble friend aware that almost 50 per cent of loose tobacco sold in the UK comes from illicit and illegal traders on the streets, which makes it more affordable for children and young people? What progress is being made in cracking down on the illicit tobacco trade? As my noble friend will know, it is an industry controlled and funded by an international network of organised crime gangs.
Earl Howe
My Lords, Her Majesty’s Revenue and Customs and the UK Border Agency published a renewed strategy in April last year to tackle the illicit trade in tobacco products. Our tobacco control plan complemented that strategy by stressing the importance of cracking down on illicit tobacco sales, which will in turn reduce tobacco consumption and organised crime, and support legitimate retailers. In fact, the latest figures show that fewer and fewer people are using illicit tobacco. The market for illicit cigarettes was down to 10 per cent in 2010 from 21 per cent in 2000.
The Countess of Mar
My Lords, some years ago I was given a statutory instrument, the Sheep Scab Order, which was dated about 1914 and had an excellent recipe for sheep dip made from tobacco. I wonder whether the current tobacco problem could be relieved by diverting tobacco from smoking to sheep dip.
Lord Naseby
My Lords, the Minister says that the control of illegal importation of tobacco is showing progress. Is it not the reality that the vast majority of illegally imported tobacco and cigarettes is being consumed by young people, and that while the official statistics may show one thing, all the evidence, when I inquired of the tobacco industry on this particular aspect, is that this is still the major problem in terms of young people taking up smoking?
Earl Howe
My noble friend is absolutely right that that is where the problem principally lies: 320,000 young people experiment with smoking or take it up every year. That is a very serious rate of incidence and it must be tackled at every possible level. The tobacco control plan sets out a concerted programme of action to try to do just that.
Lord Rea
My Lords, on 11 July this year the noble Earl said to the House,
“we will make sure that we publish details of policy-related meetings between the tobacco industry and government departments and we are currently exploring the most effective and appropriate mechanism for doing that”.—[Official Report, 11/7/11; col. 560.]
Could the noble Earl please say what that mechanism is, and whether it is now being implemented?
Earl Howe
My Lords, since 2010 the Government have published details of hospitality and gifts received by Ministers and special advisers, ministerial meetings with external organisations, and all overseas trips by Ministers across government. These details are published on each department’s website. The information is published quarterly to promote transparency and to provide the public with up-to-date information.
Alcohol
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Baroness Finlay of Llandaff
To ask Her Majesty’s Government how they plan to reduce alcohol harm.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, we will set out the Government’s approach to tackling alcohol-related harm in the forthcoming alcohol strategy. It will address the full range of harm from alcohol, both health and social impacts, and will describe the respective future roles of central and local government, the third sector, other agencies and people.
Baroness Finlay of Llandaff
Today’s British Liver Trust report shows that 28 per cent of deaths in 16 to 24 year-olds and almost 9,000 deaths a year in this country are alcohol-related. Do the Government recognise that there is now a need for social strategies that look at issues such as minimum pricing and licensing controls of home delivery services that provide night-time party top-ups when parties have run out of alcohol and people are already drunk, as well as criminal justice controls so that breathalysers can be used compulsorily, given that 45 per cent of violent crime and 37 per cent of domestic violence are alcohol-related?
Earl Howe
My Lords, the Government fully recognise the adverse effects on society of alcohol misuse and the devastating consequences that it can bring to individuals. That is why we feel it is so important to issue the alcohol strategy that I mentioned in my initial Answer. I understand that there are no plans in government to widen the use of breathalysers, but we are clear that irresponsible sales of alcohol need to be controlled, and that area will be covered in the strategy. On the noble Baroness’s particular question on pricing, we recognise that the irresponsible sale of alcohol at a loss to gain wider trade can lead to binge drinking. That is clearly undesirable for all sorts of reasons. We are committed to ending the sale of heavily discounted alcohol, and that will send a message to retailers and, indeed, the public that we take the issue very seriously.
Baroness Trumpington
My Lords, may I ask the Minister whether the answers he has been giving fit in with the order that my noble friend Lord Strathclyde has on the Order Paper for later today?
Baroness Hayter of Kentish Town
My Lords, has the Minister seen the letter today from the churches and charities to the Prime Minister asking that there should be a minimum price on alcohol? Will he agree with that recommendation and do that rather than rely on the industry in this case?
Earl Howe
My Lords, as I have already said, we recognise that the irresponsible sale of alcohol at a loss or heavy discount is undesirable. We know that price is important in this equation but we also know that it is not the only factor that affects demand for alcohol. We need to find ways to change people’s relationship and behaviours with alcohol. We do not believe that the only way to do this is by more rules and regulations but the issue of price will be addressed in the forthcoming alcohol strategy.
Lord Taverne
My Lords, the Sheffield University report to NICE in 2010 pointed out the extreme importance of price rises. It came to the conclusion that a 10 per cent price rise would, among other things, reduce hospital admissions by something like 50,000 a year, crimes by something like 96,000 and absenteeism from work by something like 500,000 per annum. Very similar huge social benefits would also come from introducing a minimum price. Does the Minister agree that price rises are probably the most important single weapon in dealing with this social matter?
Earl Howe
My noble friend makes a very good point, which is why the Government have taken action on tax. We will be raising alcohol duty by 2 per cent above inflation every year to 2014-15. We introduced a new additional duty on high-strength beers to address the consumption of cheap super-strength lagers and a reduced rate of duty on low-strength beers to encourage consumers to switch to those brands.
Lord Imbert
In the light of the 60,000 alcohol-related calls answered by the London Ambulance Service alone and the 18,500 alcohol-related crimes of violence in London alone in one year, does that not mean that we should introduce a compulsory alcohol sobriety testing scheme which magistrates can use to sentence in order to reduce this awful number of offences?
Earl Howe
The noble Lord is right to point that out. Proposals of the kind he suggests should be considered. As I am sure he will recognise, there is no single solution to the complex challenge of alcohol misuse. We need to look at licensing, pricing, health promotion, the criminal justice system, the role of local authorities, early engagement by the NHS and labelling, and the list goes on. But I am very happy to feed in the noble Lord’s ideas to my department in the work that it is doing.
Baroness Massey of Darwen
My Lords, what impact does the Minister think rising unemployment may have on alcohol consumption? He has not mentioned unemployment, which is an important issue. I declare an interest as the chairman of the National Treatment Agency for Substance Misuse.
Earl Howe
My Lords, the evidence is that the population’s overall consumption of alcohol tends to fall if incomes are depressed. Particular groups in the population, including some who are unemployed, may consume more alcohol as a result of being unemployed but the evidence does not enable us to quantify this effect. This is one aspect of health inequalities which we are determined to reduce, as we stated in Healthy Lives, Healthy People, a document we published last year.
Health: Diabetes
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Lord Collins of Highbury
To ask Her Majesty’s Government what plans they have to act on the National Diabetes Audit Mortality Analysis 2007–08, published by the NHS Information Centre, which estimated that up to 24,000 deaths from diabetes per year could be avoided by the condition being better managed.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, we are working with the National Diabetes Information Service and National Health Service organisations to ensure that local services have the audit data for their own areas to show how they compare with others and where improvements can be made. NHS Diabetes has a suite of tools that can be used to help drive improvements and reduce avoidable deaths.
Lord Collins of Highbury
I thank the Minister for his response. Diabetes UK estimates that about 26 per cent of the 450,000 residents in nursing and care homes in England have diabetes. Care home residents are a highly vulnerable group of people and, without regular screening for diabetes, they are at an increased risk of complications such as heart disease, stroke, kidney failure, blindness and amputation. What are the Government doing to ensure that residents in care homes receive the appropriate screening that they need for diabetes?
Earl Howe
My Lords, much will depend on the way in which primary care engages with those in social care to ensure that the residents of care homes, who need diabetes care management, receive it properly. We very much want to see that joined-up commissioning arise from the reforms that we are currently in the process of debating in your Lordships' House. The noble Lord makes a very good point. We have many tools at our disposal. There is no shortage of guidelines in this area. Much will depend on the training of care home staff and a lot of work is going on under the aegis of the National Clinical Director for Diabetes in this area.
Lord Rennard
My Lords, does the Minister agree with the 15 checks or services promoted by Diabetes UK that every person with diabetes should receive or have access to? In particular, does he agree that they should have access to high-quality, structured education, firmly embedded in the NHS, based on a programme such as that for type 1 diabetics, promoting dose adjustment for normal eating?
Earl Howe
My Lords, the answer to my noble friend is yes. Those checks and services are firmly supported by NICE, by the National Service Framework and by the NICE quality standard. I also agree with him that structured education is fundamental if we are to ensure that patients can self-manage. A number of tools are available for that. He mentioned one for type 1 diabetics that has the acronym DAFNE—dose adjustment for normal eating—and for type 2 diabetics there is DESMOND—diabetes education and self-management for ongoing and newly diagnosed.
Baroness Finlay of Llandaff
Can the Minister please tell the House what levers the Government will have in the new NHS to ensure an increase in the use of insulin pumps for the control of diabetes in children, given that the pump appears at face value to be expensive, but as a long-term investment it is very cost-effective because it results in far better control of diabetes and a lower incidence of hypoglycaemic attacks, which is important for children at school?
Earl Howe
My Lords, we know that insulin pump therapy can make a huge difference to glycaemic control and the quality of life in some people. It is not appropriate for everyone, as the noble Baroness will, I am sure, recognise. We know that much more has to be done to improve the uptake of insulin pumps in line with NICE recommendations. The NHS operating framework for this year highlights the need to do more to make these devices available. The NHS Technology Adoption Centre has published guidance to support NHS organisations in the adoption of these devices and I know that the National Clinical Director for Diabetes, Dr Rowan Hillson, chairs a working group focusing on the uptake of insulin pumps.
The Earl of Courtown
Does my noble friend agree that one of the greatest problems for those suffering from diabetes—particularly type 2 diabetes—and for those looking after them, is that they are not actually taking up the education that is available so that they can learn how to live their lives to get a better result from their illness?
Lord Brooke of Alverthorpe
Does the Minister agree—I am sure that he does—that the recommendation that there should be more comprehensive and effective preventive care is an important part of the report, and that it is important to highlight the link between obesity and this illness? Does he agree that it is now high time for the Government to introduce calorific labelling of alcohol products so that people know the number of calories they take in when they drink, and to stop citing the European Union as the reason why they are not doing it?
Earl Howe
The noble Lord is to be congratulated on bringing me back to the very important subject of the labelling of alcoholic drinks. I hope that the House will feel that he was a little unfair in blaming the Government for the line that they have taken on this. As the noble Lord knows, labelling is an area that is very largely a matter of EU competence. However, he is right that type 2 diabetes is closely linked to obesity and insufficient physical activity. We would like to see businesses use a more consistent front-of-pack nutrition labelling approach than has been achieved in the past, particularly with food.
Lord Harrison
Will the noble Earl recognise another acronym, the DAFNE programme, and give greater government support to rolling out such a programme, as illustrated by the noble Lord, Lord Rennard? Will be also reply to the Danish Government, who have made diabetes a priority under their presidency for the coming six months? What is being done with our Danish colleagues to promote a better understanding of diabetes and its treatment?
Earl Howe
The noble Lord is right to emphasise the role of DAFNE. The 2011-12 NHS operating framework signals the need to commission patient-structured education for people newly diagnosed with diabetes, and at appropriate points in their life as their condition progresses. I do not have a briefing on the dialogue with our Danish colleagues on their programme of action, but I will write to the noble Lord on that.
Health: Stroke Care
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I am delighted that the noble Baroness, Lady Wheeler, has been successful in securing a debate on stroke care, and I thank her for introducing the subject so ably. As demonstrated today by the number and quality of contributions made by noble Lords, it is an area of great interest and one that it is vital to keep in the public eye. I shall do my best to cover as many issues that have been raised as I can, but I shall write to those noble Lords whose questions I have not been able to cover.
Stroke care has witnessed huge improvements over the past few years and many thousands of people have benefited. Stroke patients are getting treatment that is faster and better than ever before and data suggest that improvements are continuing. I pay tribute to the work of Sir Roger Boyle during his time as national clinical director. The latest data show that over 80 per cent of stroke patients are spending the majority of their hospital stay on a stroke unit, and the management of high risk transient ischaemic attack patients has also improved by 20 per cent since 2009. Access to immediate brain scanning has improved considerably and more patients are receiving thrombolysis giving them a better chance of regaining their independence following a stroke. There has been the very successful campaign to raise awareness of stroke—the Act FAST campaign.
We want the progress underway to continue but we also know, as was pointed out by the noble Baroness, Lady Pitkeathley, that we need to do more to improve support for people after stroke. As we acknowledged when the Care Quality Commission published its report last year, there is still more to do in ironing out the variations in stroke care, particularly in the support provided to patients when they leave hospital.
The noble Baroness, Lady Wheeler, asked about monitoring of outcomes with the benefit of robust information. At a national level, our focus on outcomes through the NHS, public health and adult social care outcomes frameworks sets out the areas we want to improve. Stroke specifically features in two parts of the NHS outcomes framework in terms of reducing premature mortality and in recovery from major illness.
Noble Lords will be interested to hear that the stroke indicator on recovery has been developed in collaboration with several organisations, including clinicians, academics and the NHS. The indicator, based on the modified Rankin scale, will assess the patient’s recovery from stroke after six months. It will provide an incentive for the NHS and social services to work together, getting the right services in place so that when patients leave hospital they have the support they need to make the best possible recovery. I hope that that reassures those noble Lords who are afraid that care will be fragmented. This outcomes framework will drive services in the opposite direction.
The social care outcomes framework is helping to gauge the progress made by local services and drive up standards across the country. One of the areas this framework covers is reducing the need for care and support and delaying dependency. This will help people to live healthy independent lives and properly manage any health needs. Local authorities will be able to compare their services with those of other authorities around the country and make improvements based on what has been proven to work elsewhere, integrating care and working together to provide care that suits individual patients. For stroke survivors, this means providing access to the kind of support that they need to enjoy the best possible quality of life after their stroke.
Building on the national stroke strategy, the NICE quality standard for stroke, which has been mentioned by a number of noble Lords, has been developed with patients, commissioners and leading doctors. This provides an authoritative definition of what high quality care for stroke actually means. They are the measures of quality that matter most to patients and the NICE quality standard for stroke recognises the key role that rehabilitation plays in making sure people can live their lives as fully as possible after their stroke.
My noble friend Lady Browning suggested that there is perhaps inadequate understanding of what patients need in care settings. The NHS, through the stroke improvement programme and the 28 stroke networks in England, is working to make sure that stroke care improves at all stages of the patient pathway. The stroke networks connect different organisations and teams that have roles to play when someone has a stroke so that patients can be sure of co-ordinated management from the moment they are first in touch with a doctor or nurse and throughout their lives as a stroke survivor. This whole approach takes the needs and wishes of stroke survivors and their carers into account when delivering these services. I should like to reassure the noble Baroness, Lady Wheeler, about funding of the networks. Funding is in place for 2012-13. The future of the networks is being actively considered as part of the development of the NHS Commissioning Board.
The stroke improvement programme and the stroke networks have made good progress in getting the stroke strategy up and running, and they have done the same with the NICE quality standard. Patients now see better acute care as a result of both. Attention is now being focused on improving care for patients who have left hospital. The accelerating stroke improvement programme was developed specifically to improve care in areas where progress needs to be made faster and is looking at improving post-hospital and long-term care. The stroke improvement programme, working with the stroke networks, is delivering this.
Accelerating stroke improvement is concentrating on four key areas of post hospital care: that is, providing early supported discharge; making sure patients and carers have a joint care plan on discharge from hospital, which was mentioned by my noble friend Lady Browning; making sure stroke survivors have a review six months after leaving hospital; and making sure psychological support is provided for those who have mood, behaviour or cognitive disturbance.
One example of where a stroke network has been working well with commissioners to improve access to stroke community services is south London. Through the ASI programme, the network has developed a service specification for early supported discharge and community services, and has helped commissioners to make the case for change. What is more, analysing data from the CQC review, the stroke network was able to identify areas that needed to do more in the provision of post-hospital services. This has resulted in one of the care trusts commissioning a stroke community rehabilitation service, which is an excellent example of how the CQC review has actually driven improvements in services.
A number of questions were put to me. The noble Baroness, Lady Wheeler, asked about clinical leadership in this area, a point also raised by the noble Baroness, Lady Thornton. The replacement of the National Clinical Director for Heart Disease and Stroke is being considered as part of the development of the NHS Commissioning Board, but I would just say generally that improving stroke services is a priority for the Government, and there should be no doubt about that. It is a priority against which we shall hold the NHS Commissioning Board to account. Tackling premature mortality from stroke is an area for improvement in both the NHS outcomes framework and the public health outcomes framework.
The noble Baroness, Lady Wheeler, mentioned the Stroke Association, and again I pay tribute to its work. My officials meet its representatives on a very regular basis. The local stroke networks are working with clinical commissioning groups and PCT clusters to ensure that improvements are made in stroke services, including those recommended by the CQC. I was asked how improvements in quality will be monitored. There are two audits running this year. The Sentinel Stroke Audit and SINAP will both publish their results, which will help commissioners and providers of stroke care to monitor and improve their services, helped by the local stroke networks. The noble Baronesses, Lady Wall and Lady Thornton, asked whether we agree with the hyper-acute model that has been adopted in London. We certainly acknowledge that the reconfiguration of stroke services in London has produced very good results. The Stroke Improvement Programme works through local stroke networks, which are responsible for disseminating good practice across the country. They have done so with the London example very much in mind and, indeed, other examples where reconfiguration has delivered better stroke care.
The noble Baronesses, Lady Masham, Lady Gould and Lady Rendell, my noble friend Lord Rodgers and the noble Lord, Lord Clinton-Davis, all spoke of aphasia services and speech and language therapy. Stroke survivors should receive care and support from staff with the skills and competence to meet their needs, ensuring that those with communication difficulties such as aphasia have opportunities to return to a full life back in their communities. A good example of working with those who have aphasia is the Access to Life project in Cornwall, run by Connect. Twenty people with aphasia have been trained to provide one-to-one support to others with aphasia at home or in hospital, which helps those with aphasia grow in confidence in the way they communicate, and so reduces their risk of social isolation, a point well made by my noble friend Lord Rodgers.
The noble Baroness, Lady Rendell, spoke about entitlement to reviews and reassessments. Patients should have reviews at six weeks and six months. The NHS outcomes framework will include an indicator in the recovery domain to ensure that patients are reviewed at six months, as I have mentioned. The noble Baroness, Lady Pitkeathley, referred to the needs of carers. Carers play a critical role in ensuring that stroke survivors enjoy the best possible quality of life. Local authorities, working with PCTs, should together make sure that appropriate services are available to support both stroke survivors and their carers. Health and well-being boards will in the future have responsibility for ensuring that these local needs are met. The noble Baroness, Lady Gould, asked about support for third sector organisations. It is for local commissioners to decide how to use the third sector in providing stroke services, but many local authorities and PCTs commission such services from organisations such as the Stroke Association.
We want our stroke services right across the pathway to match the very best in the world. As I have said, huge improvements have been made to that end, but significant improvements still need to be made. I have given a couple of examples of what is being done to address this, and there are many more examples from around the country of services continuing to improve. But we are not stopping here. Identifying how we can deliver better outcomes in cardiovascular disease, including stroke, is a key task. This is one of our biggest killers and causes of adult disability. That is why my right honourable friend the Secretary of State for Health recently announced the development of an outcomes strategy for cardiovascular disease, building on existing strategies and the national service framework. I hope that the noble Baroness, Lady Wheeler, will see this as good news.
The aim of the strategy is to create a joined-up approach across the NHS, public health and social care to improve outcomes for patients with CVD, which includes stroke survivors. This will mean even more stroke survivors living active and fulfilling lives.
Health and Social Care Bill
Earl Howe Excerpts(13 years, 5 months ago)
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Baroness Thornton
To ask Her Majesty’s Government what were the estimated costs of implementing the Health and Social Care Bill when it was originally introduced to the House of Commons one year ago, and whether they have changed.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, in January 2011, we estimated the costs of implementing the Health and Social Care Bill at £1.4 billion. When we published the revised impact assessment in September, we estimated the costs of implementing the Bill to be between £1.2 billion and £1.3 billion. This will reduce administrative costs across the system by one-third by the end of this Parliament, saving £1.5 billion per year from 2014-15 onwards.
Baroness Thornton
My Lords, I thank the Minister for that Answer. Many people in the medical world believe that the cost is mounting and that the cost which the Minister cites is not accurate. It is safe to say that this upheaval is costly both in money and in the risk to patient care. As well as the cost, at a time when the NHS has to find £20 billion of efficiencies, today the nurses and midwives have asked for the Bill to be dropped, arguing that their concerns have not been answered. Can the Minister give the nation and the NHS a first birthday present by listening to what is said and advising his right honourable friends Mr Lansley and the Prime Minister that it is time to pull back—
Baroness Thornton
I am asking a question; I am in the middle of asking it. You may not care about the NHS but, on these Benches, we do. When the medical professions and nurses say that the Government should think again, it would be wise for the Government to do so. My question is whether the noble Earl will ask his colleagues to do so, and whether we can then move together, with consensus, as my right honourable friend Andy Burnham has now twice asked the Secretary of State to do.
Earl Howe
My Lords, I understand that the noble Baroness is asking me to deliver a certain message to my right honourable friend. I am not quite sure what that message was, but if it is to do with the Health and Social Care Bill, I have to say that we need that Bill. We believe that reform of the NHS is essential if it is to be sustainable in the future. Every penny saved from this reform will be reinvested in front-line patient care. The previous Government had, as we do, an ambition to save £20 billion—the so-called Nicholson challenge—over the next three or four years. This reorganisation will enable us to contribute to that total. The modernisation will also move the NHS to a much more patient-centred system where good providers are rewarded for high-quality services. We are spending money on redundancy now to gain in the future.
Lord Touhig
My Lords, will the Minister tell us whether the report in this morning’s Guardian that the NHS regulator is proposing that a hospital should be credit-rated is correct? If it is correct, why are the Government pursuing this commercialisation of our hospitals? They are not supermarkets; they are places of care.
Earl Howe
My Lords, I have not seen that report, but clearly there is concern, following Southern Cross, as to whether difficulties such as those should be predictable in some way. I am sure that a lot of thought is being devoted to trying to avert such crises in the future. I will look at that report and write to the noble Lord with any comments.
Baroness Greengross
The Bill is called the Health and Social Care Bill. If the recommendations of the Dilnot commission for social care are implemented speedily with cross-party support there will be a huge saving to the NHS, where many frail and vulnerable people are inappropriately treated because the impending crisis in social care has not been addressed. Does the noble Earl agree that that is the case?
Earl Howe
I strongly agree. The noble Baroness will know that running right the way through the Bill are duties around the integration of services between health and social care and indeed between different aspects of healthcare. By giving clinicians greater autonomy to decide what good care looks like for their patients in an area, I am confident that we will see fewer unplanned admissions to hospital, which cost a great deal of money, and much better preventive care for patients delivered by healthcare and social care professionals.
Lord Tebbit
My Lords, has my noble friend noticed that this upsurge in criticism of his proposed reforms in the health service has coincided with an upsurge in the demands for more pay by some of the people who are making the criticisms? Perhaps if they were a little more modest in their demands, there might be a little more money for patients.
Earl Howe
My noble friend makes a good point. Of course we wish to see professionals properly rewarded, but it behoves everyone in the public services to bear in mind the difficult economic circumstances in which we currently live. Many public servants, I am pleased to say, are responding to that call.
Lord Tomlinson
Is the Minister aware that his message about the imperatives of health service reform does not appear to have reached the Royal College of Nursing and the Royal College of Midwives, based on statements that they made yesterday? Does he share the view of his right honourable friend the Secretary of State in another place, who has stated that these are not disputes about the health service but politically motivated strikes?
Earl Howe
I do think that the objections that the Royal College of Nursing has raised have very little to do with the Health and Social Care Bill. They are much more about what may or may not be happening in certain hospital trusts, which are matters that, in general, the Bill does not affect.
Baroness Jolly
My Lords, health reforms rarely come at low cost. Can the Minister tell the House how much the previous Government’s health reforms cost between 1997 and 2010?
Earl Howe
My noble friend is right to remind the House of the repeated reforms of the health service made under the previous Administration. I do not have a figure for how much they cumulatively cost the taxpayer, but it was clearly a great deal and I recall that one of the reforms took place over the course of the summer without any reporting to Parliament at all. The contrast between those reforms and this one is marked. We are doing this to get better care for patients. The previous Government were really only doing it to rearrange the deckchairs.
Baroness Wall of New Barnet
Does the noble Earl agree that, contrary to my noble friend’s comments, there is a real regret in the health service that our excellence awards—as you know my trust in Chase Farm has received one—have been done away with by the Government with the CQC. I do not know what the Guardian article said and I do not know what it means by “credit”, but getting credit for good services and proper care is something that everyone in the health service would welcome. The focus for us in the health service is indeed to join social care and healthcare. Can any emphasis that can be given by the noble Earl or the Department of Health come as quickly as possible please?
Earl Howe
The noble Baroness was absolutely right in what she said in the last part of her question. I apologise to the House if I misunderstood the previous question about credit ratings, which I took to mean something to do with finance rather than gold stars, which I think the noble Baroness was talking about. I will try to clarify that in a letter.
NHS: Transition Risk Register
Earl Howe Excerpts(13 years, 5 months ago)
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Baroness Pitkeathley
To ask Her Majesty’s Government whether their risk assessment of their proposed National Health Service reforms will be published before the Report stage of the Health and Social Care Bill commences.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Government are appealing the Information Commissioner’s decision that the transition and strategic risk registers should be released, for the reasons explained in my recent statements to the House. The tribunal has initially fixed the oral hearing for 2 and 3 April, but my department is urgently discussing with the tribunal how the case may be expedited further. Regrettably, however, it is not possible for this to take place before Report commences.
Baroness Pitkeathley
My Lords, the Minister’s reply will be disappointing to many Members of this House, who believe with the Information Commissioner that,
“there is a very strong public interest in disclosure of the information, given the significant change to the structure of the health service the government's policies on the modernisation will bring”.
Moreover, the noble Earl himself is, I know, on record as saying that he is anxious to get the matter decided as speedily as possible. Are the Government considering a delay in the timing of Report, so that the House can have before it all the information that it needs to ensure that this important Bill is subject to detailed scrutiny, which is such a significant function of your Lordships' House?
Earl Howe
My Lords, I understand the noble Baroness’s disappointment. As I have said, my department has made strenuous representations to ensure that this process is concluded as speedily as may be possible, consistent with the need for both parties to assemble the necessary evidence and present their cases properly. In answer to her second question, of course we have considered the timetable for Report in the context of this process, but we have concluded that if the Bill is to go through its full passage by the anticipated time of the end of the Session we need to start Report at the beginning of February. So, regrettably, our conclusion is that the start of Report cannot be delayed.
Baroness Meacher
I understand the Government’s reluctance to publish risk registers. Governments do not tend to be keen to publish documents that are going to be deeply embarrassing to them. However, will the Minister invite the Information Commissioner to identify key sections of the risk registers that really should be before the House of Lords before it undertakes its work on Report, and will the Government and the Minister comply with the Information Commissioner’s recommendations?
Earl Howe
My Lords, this issue turns on a disagreement between ourselves and the Information Commissioner about where the balance of public interest lies. Our view is that the balance of public interest does not lie in disclosure, and his view is the opposite. It would be likely, if we gave the Information Commissioner a second opportunity to look at this, that he would come to the same conclusion as before, so we have to let due process occur.
Baroness Thornton
My Lords, the strategic health body in London was perfectly content to make the register of risks on the health Bill available, so the House needs to know, first, what the difference is—except in terms of size—in the national Department of Health making its risk register available. Secondly, I realise that in appealing the Information Commissioner’s decision the Government have said, in effect, that this decision has cross-government implications. Does the Minister accept that it also has wider implications for Parliament? In this House, our ability to scrutinise legislation effectively must be in doubt if any Government withhold important information from us, so what course of action does the Minister suggest that noble Lords in this House should take under these circumstances?
Earl Howe
My Lords, to answer the second part of the question first, a substantial number of the risks pertaining to the Bill are already in the public domain and we are considering whether there is scope to draw these sources of information together in a single place, so that noble Lords can look at them more easily. To answer the first part of the noble Baroness’s question, I made inquiries about NHS London. Its situation is very interesting and quite different from that of the Department of Health. NHS London developed its risk management strategy with a view to it being visible to stakeholders and the public, as its document says. It is therefore a reasonable assumption that officials will have worded their risks for inclusion in the register in the knowledge that that wording would be likely to form part of a document placed in the public domain, so there is a very real difference between the two situations.
Baroness Jolly
My Lords, as has been suggested, there are wider issues here. Could my noble friend the Minister tell the House to what extent he believes the use of risk registers might be compromised if their authors feel they cannot be entirely candid?
Earl Howe
My Lords, risk needs to be thought about and assessed thoroughly and often in worst case terms in order to inform policy development and implementation. Risk registers are therefore a basic policy management tool and, for robust risk management to take place, officials have to be free to record all potential risks fully and frankly, with absolute candour, in confidence that anything they say will not be disclosed. If officials knew or believed that what they wished to say was going to be disclosed, that would inhibit them in expressing views fully and frankly. That, in turn, would erode confidence in policy-making and impede good government.
Lord Wills
My Lords, apart from the specifics of this case, there is clearly an issue of constitutional significance when this House is being asked to scrutinise legislation without having available to it all the centrally relevant information. That is clearly the case here. Which committee of which House would the Minister recommend looks at this particular constitutional issue?
Lord Owen
My Lords, there is a Motion on this very subject before the House in my name, and I hope that there will be an opportunity well before we reach Report for it to be debated. Since public companies are under strict obligations to publish their risk assessments—they have to weigh very carefully what they say because they could be sued by shareholders in their companies—why is it so different for Her Majesty’s Government in the circumstances in which the Information Commissioner has expressed the view that this is a legitimate case that ought to be made available?
Earl Howe
The Freedom of Information Act was framed specifically in a way that would protect the process of policy-making within departments. Our view is that the risk register forms an integral part of policy-making and implementation; the Information Commissioner came to a different view. It is about the balance of public interest here: we wish to see this process adjudicated further.