Procurement Bill [HL]

Debate between Lord Davies of Brixton and Lord Scriven

Committee stage
Wednesday 13th July 2022 Grand Committee

[Lord Scriven (LD)]

My Lords, I have added my name to Amendment 528C, which my noble friend Lady Brinton has already spoken to. Like her, I am a little perplexed about the Government’s view, according to the Minister, that public sector procurement should be based on value for money and that there should be a co-ordinated approach to public sector procurement so that businesses understand the rules in which they are working but also have flexibility, yet the health service seems to be excluded from that.

For the convenience and understanding of the Committee, we need to look particularly at Section 79 of the Health and Care Act 2022, which says:

“Regulations may make provision in relation to the processes to be followed and objectives to be pursued by relevant authorities in the procurement of”


services. Relevant authorities in this legislation are: NHS England; NHS England foundation trusts; an NHS trust established under Section 25; interestingly, a combined authority, which is a combination of local authorities; and a local authority in England. A relevant authority is not just an NHS body; it is a relevant authority if it is purchasing or procuring

“(a) health care services for the purposes of the health service in England, and (b) other goods or services that are procured together with those health care services.”

Ministers have said previously from the Dispatch Box that all that the provision applies to is the provision of healthcare services in England. They have not spelt out that it also applies to other goods or services that are procured together with those for healthcare services. If, for example, a care village was being procured where there was predominantly a capital spend on housing and where services for healthcare were to be procured at the same time, which set of procurement rules would apply? Would it be the rules within this Bill, those within the Health and Care Act, or a combination of both?

It is important that Section 79 of the Health and Care Act says that

“Regulations under subsection (1) must, in relation to the procurement of all health care services to which they apply, make provision”


for the following:

“(a) ensuring transparency; (b) ensuring fairness; (c) ensuring that compliance can be verified; (d) managing conflicts of interest.”

There is nothing about value for money, yet the Minister has said repeatedly at the Dispatch Box in this Committee that the Government’s view is that public procurement should be based on value for money. If that is the view of the Government—not of the Cabinet Office, but of the Government—why is value for money not in the Health and Care Act as a factor for public procurement of healthcare provision in England and other goods or services that are procured together?

There is a gaping hole which is not clear. It is so deep that I do not think the Minister can explain the contradiction between this Bill and the Health and Care Act in terms of procurement provision. So, particularly on joint procurement in something like a care village, which provision would apply? If the Minister cannot answer that very clearly from the Dispatch Box, I feel that this is going to come back on Report. Clearly, there is confusion not just in terms of legislation but for those businesses which wish to be part of a contract for a joint provision between health and other services.

My final question is this: why is it that combined authorities in a local authority in England are in the Health and Care Act but it says here that local authorities will be driven by the provisions in this Bill? Which one would a local authority have to adhere to in terms of the confusion that is around it?

[Lord Davies of Brixton (Lab)]

My Lords, I want to make a point about proportionality. It arises under the amendment in the name of the noble Lord, Lord Aberdare, and runs through much of the Bill. In a sense, I am asking a general question but hanging it on the hook of Amendment 120. It is a point of some concern to small organisations; we are talking here about small charities and local voluntary organisations. In much of the debate, people have referred to businesses and enterprises, but this will also apply to local voluntary organisations and charities, which clearly do not have the resources or staffing to deal with the scale in the way that an organisation such as Oxfam, for example, could. They have their local job to do; to a certain extent, spending a lot of time drawing up a bid to provide a service will be a diversion from their work. Proportionality must have a role in assessing a contract. I am intrigued and ask the Minister to give some indication of an overall perspective on proportionality as it affects local organisations, charities and voluntary organisations.

Health and Care Bill

Debate between Lord Davies of Brixton and Lord Scriven

Lords Hansard - Part 1 & Committee stage
Tuesday 18th January 2022 Lords Chamber

[Lord Davies of Brixton (Lab)]

My Lords, I speak to my Amendment 45. This is a disparate group of amendments, dealing with the issue of integrated care boards. I strongly support the comments already made. My amendment addresses another issue. There are questions about what the boards are; the issue is for whom they provide services, and how they are defined.

I have been made aware of a case that raises real questions about how this is going to develop. The case was reported in September, in the Manchester Evening News, about a woman who suffered burns while on holiday. She returned to her local urgent care centre in Rochdale and was advised that, because of long waiting times, she should go to another A&E in Bury. When she arrived there, she was told that that centre did not treat people from Rochdale, because of rules laid down by the integrated care board predecessor, which had established the rules in that part of Lancashire. She was left literally on the pavement, unable to obtain the care that she required.

That is a specific case under the existing rules, but it points out the lack of clarity in the Bill about how the integrated care boards will operate. The fear is that they will be membership bodies along the lines of health management organisations in the United States, which are responsible for providing services to members. That contrasts with the residential basis on which the NHS was based, at least up to 2012.

Proposed new Section 14Z31(4) gives the Secretary of State astounding power to set out which ICB is responsible for a particular individual’s care. I hope that the Minister will be able to provide some reassurance, but the problem with membership-based organisations is that, first, there will be cherry picking of patients and, somewhat counterintuitively, at the same time they will be competing for the less expensive patients. Without far more clarity through the Bill from the Minister, people will have reasonable fears over how these new organisations will work and how people will attain the services that they currently expect from a seamless provision of services. My amendment seeks to address the issue of it being a single service. We have these 43 ICBs, or whatever they are, but it is a single service, and patients can access services wherever it is best for them and not best for the service.

[Lord Scriven (LD)]

My Lords, I echo the comments from the noble Lord, Lord Hunt of Kings Heath.

We are living in a parallel universe. We are discussing the legislative framework for this new system while, out in the real world, the foundations and the bricks are being built. People are in place. Dates are being set. People are being told that they cannot be on boards. This Parliament has not decided. Under what legislative framework are these organisations working? They have no legitimate powers or approval from Parliament, yet they are being set up. People are being put in place. Chairs are being appointed. Councillors are being told that they cannot sit on ICBs.

This Parliament has not decided that yet. Letters are going out from NHS England telling the system when it will start, and Parliament has not gone through the legislative process. This is not collaborative working at a local level, because many local authorities feel that they are not even in the car let alone in the driving seat; the car is leaving and they are being asked to join at a later date. This is not a good start for collaborative working. It has to stop. NHS England has to be reined in and told that, until there is a legislative framework, the system must stay still.

In that sense, I support Amendment 23, because, significantly, it would give local authorities powers to determine their own destinies. As a former NHS manager, I am not somebody who says that this is a bunch of bureaucrats who are a waste of time. I understand the importance of NHS leaders and managers, but they cannot start drawing lines on a map and ignore local authorities’ democratic mandate. This system is not just about administrative convenience; there are real questions about the identity of local authorities, which have built regional boundaries.

Some local authorities look two ways. Let me give noble Lords an example, not a health example but something that happened in south Yorkshire and in which I was involved. The people and the authority of Barnsley, on the edge of south Yorkshire, look to west Yorkshire as well as looking to, and being administratively in, south Yorkshire. As I am sure the noble Baroness, Lady Bennett of Manor Castle, will know, because she knows the local area, when we set up the economic framework it caused a lot of distrust and bad blood for four years, simply because the local authority was not allowed to use the democratic mandate that it had been given and people from the centre were pushing how local economic partnerships and mayoral authorities should be set up.

If we are talking about local authorities and the National Health Service working in a collaborative way, the democratic right of local authorities must be taken into consideration. They know the nuances of their local people in a way that NHS managers do not. I say that having been an NHS manager, a councillor and a leader of a council. It is important to establish the democratic mandate in the system right from the beginning. I can tell you now that if you get a system where two local authorities out of four are forced into an area that they do not want to be in, I can tell you now that it will not work. There will be years of fighting and distrust. This is not just a plea; this is really important. The system has to stop. It has to be a collaborative approach in which local authorities’ elected mandate is key, but NHS England must also take its foot off the brake and wait until this Parliament has set the legislative framework before the system gets going. This is a parallel universe and it has to stop.